THE SMALL BUSINESS PROJECT
TERMS OF TRADE – BUSINESS METAMORPHOSIS
This Agreement is made between THE SMALL BUSINESS PROJECT PTY LTD (ABN 37 729 263 128) (the “Company”) of PO Box 1558, Southport BC in the State of Queenslandand you (the “Client”).
By registering and paying for any of the Business Metamorphosis workshops online (‘Services’), you agree to the terms contained herein.
1 Obligations of The Company. The Company must:
1.3 whilst so providing the Services, provide prompt and full information to the Client regarding the performance of the Services.
2.1 The Parties agree that the Company shall provide the Services.
2.2 The Company warrants that:
2.4 Nothing in these terms makes the Company liable for any comment made by a participant in the course of the Company’s provision of the Services. For the purposes of this clause 2.4, comment includes a statement published orally, in writing, or by an image in any manner about an identifiable person.
3 Intellectual Property
3.1 In these terms, “Intellectual Property” means all existing and future intellectual property rights including, but not limited to, copyright (both present and future subsisting throughout the world), registered and unregistered trade marks, trade names, slogans, logos, emblems, computer data and digital representations, designs, industrial designs, drawings, trade secrets, visual representations, registered and unregistered patents, know-how and patentable inventions.
3.2 The Company grants to the Client a royalty-free, fully–paid, non-transferable and non-exclusive right and licence to use the content in the Services.
3.3 The Client acknowledges that it acquires no beneficial interest in the Company’s Intellectual Property which at all times remains the property of the Company.
3.4 The Client agrees and warrants that it shall not share or distribute any content and/or Intellectual Property included in the Services (whether in whole or part thereof), unless specifically agreed between the parties.
3.5 The Client agrees and acknowledges that the Company shall be permitted to share and distribute content created in the workshop with the Client with other clients and customers of the Company, provided only that such distribution does not breach these terms, the copyright and/or moral rights of the Company, privacy laws and/or other relevant legislative provisions.
3.6 The Client grants the Company a perpetual, worldwide, irrevocable, licence to use, reproduce and display any case studies (“Case Studies”) created using results received in relation to the Services carried out, and that such Case Studies may be used for both marketing and promotional purposes and/or further studies, including but not limited to the Company’s research, publications, website, proposals, marketing materials, the press, and on any other websites owned and/or operated by the Company, provided always that the Case Studies shall remain anonymous and that each shall be approved in writing by the Client.
4. Fees and Invoices
4.1 The Company shall provide to the Client invoices for Services provided as follows:
- showing the amount payable to the Company; and
- the invoice shall be a tax invoice in accordance with applicable tax legislation.
4.2 The Client will pay each invoice within seven (7) days of receipt of the invoice and agrees that it must be paid at least seven (7) days prior to the workshop.
4.3 The Client agrees and acknowledges that the Company shall not commence Services until the fees have been paid in full.
4.4 The Client agrees and acknowledges that in the event that the Client fails to pay an invoice by its due date, that access to the Services may be suspended, denied, or removed.
4.5 In the event that an invoice is not paid within fourteen (14) days of the due date, the Company reserves the right to charge late payment interest at a rate of one and a half percent (1.5%), not to exceed the maximum permitted by law.
4.6 Dishonoured payments will incur a $25.00 administrative fee. In the event that the Client’s account incurs a second dishonoured payment, the Company reserve the right to terminate the Services.
4.7 Should it become necessary for the Company to enforce any of these terms either through legal representation, collection agency, or directly through a small claims Court, then the Client agrees that it shall pay all reasonable legal fees, agency fees, court costs, and other reasonable collection costs.
4.8 The Company reserves its rights to review, amend, or vary its fee structure at any time, provided it gives the Client thirty (30) days written notice of any variation.
5 Refunds and Cancellations
5.1 To the extent permissible by law, the Company will not refund, exchange or redeem for cash any fees made to it for Services (“Payment”), unless otherwise agreed by the Company in writing.
5.2 In the event that any Business Metamorphosis workshop is cancelled and rescheduled by the Company, the Client will only be refunded if they cannot attend (on a bona fide basis) on the re-scheduled date.
6 Relationship of Parties
6.1 The relationship between the Client and the Company is that of a principal and an independent contractor. Nothing in these terms will constitute or deem the Company to be an employee of the Client nor will anything in these terms be construed as creating an employment relationship between the Client and the Company.
7.1 The following is Confidential Information of the Parties:
- technology and all information clearly marked confidential, software architecture, programs, source code, software, designs, systems, methods and procedures, trade secrets, ideas, know-how, plans, concepts and information whether in writing or otherwise, details of customers, business, sales, marketing or promotional information and financial information;
- information or communication that is designated by an employee, officer or agent of the Parties to be confidential;
- information or communication the recipient knows or reasonably ought to know is confidential or is held in confidence on behalf of a third party;
- Intellectual Property of either Party or that Party’s clients or partners;
- that part of all notes and other records prepared based on or incorporating information referred to in sub-paragraph (a); and all copies of information and those parts of the notes and other records referred to.
7.2 Both Parties must:
- keep all Confidential Information secret and confidential;
- not use all or any of the Confidential Information otherwise than for the provision of Services under these terms;
- take all reasonable and necessary precautions to maintain the secrecy and prevent the disclosure of any Confidential Information.
7.3 The Parties covenant and warrant that they shall at all times act in good faith in accessing the Confidential Information and shall not act in any way contrary to the commercial interests of the other Party and shall not knowingly circumvent the other Party in its dealings with any other third party as at the date of these terms or whilst these terms are in force.
7.4 The Parties acknowledge and agree that the Confidential Information is confidential and of significant commercial value and that damages may not be a sufficient remedy for a breach by the receiving party of these terms.
7.5 The obligations of confidentiality set out in these terms are continuing and shall survive for five (5) years from the termination of these terms.
8 Non Solicitation
8.1 The Parties must not directly or indirectly or through interposed entities on any account in any capacity including on their own account or in partnership or joint venture with any other person, from the date of these terms to six (6) months after completion of the provision of Services, solicit, employ or contract any employee or contractor of the other Party, unless otherwise agreed in writing;
8.2 The Parties acknowledge that the restraints under this Clause are reasonable in terms of duration and extent and are reasonably necessary to protect the business interests of the Parties.
9 Limitation of Liability
9.1 Except as provided for in these terms, the Company makes no representation of any kind, express or implied with respect to the delivery of the Services.
9.2 To the extent that any warranty is made, the sole and exclusive remedy for breach of any warranty is that the Company re-provide the Service(s).
9.3 No warranty is made by the Company for the performance of third party software, content or equipment or internet service provider and Wi-Fi latency.
9.4 No warranty is made by the Company in respect to: (i) that the Service will meet the Client’s specific requirements, (ii) that the Service will be uninterrupted, timely, secure, or error-free, (iii) that the results that may be obtained from the use of the Service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by the Client through the Service will meet the Client’s expectations, and (v) that any errors in the Service will be corrected.
9.5 The Client agrees to indemnify, defend and hold harmless the Company, its related entities, shareholders, agents, affiliates, employees, directors and officers, from any and all liability, claim, loss damage, demand or expense (including reasonable legal costs) asserted by any third party due to, arising from, or in connection with any breach by either party of the terms of these terms. This includes, without limitation, any representation or warranty contained herein, any fraudulent conduct committed or negligence by either party, all liabilities related to the Services, any investigation or government claim, and/or any intellectual property claims associated with any and all copy and images supplied by either Party and its associated use thereof.
9.6 No action arising under or relating to these terms, regardless of its form, may be brought by either Party more than six (6) months after the cause of action has accrued and in any event, no later than six (6) months after the termination of these terms, except for an action for non-payment brought by the Company.
9.7 The Company shall bear no liability whatsoever under or in any way related to these terms for any loss, loss of profit, or revenue or for any consequential, indirect, incidental, or exemplary damages.
9.8 If Australian Consumer Law or any other legislation implies a condition or warranty into these terms in respect of the Services supplied, and the Company’s liability for breach of that condition or warranty may not be excluded but may be limited, the Company’s liability for such breach is limited to the Company supplying the services again or paying the cost of having the services supplied again by a third party.
10 These Terms
10.1 These terms shall be subject to the laws of the Queensland, Australia, and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of Queensland.
10.2 Any provision of, or the application of any provision of, these terms which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
10.3 Any provision of, or the application of any provision of, these terms which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
10.4 If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in these terms.
10.5 The failure of either party at any time to require performance by the other party of any provision of these terms does not affect the party's right to require the performance at any time.
10.6 The waiver by either party of a breach of any provision must not be held to be a waiver of any succeeding breach of the provision or a waiver of the provision itself.
10.7 These terms supersedes all previous agreements, arrangements, understandings, representations or any other communication in respect of the subject matter of these terms and embodies the entire agreement between the parties.
10.8 These terms may not be changed or modified in any way except in writing signed by the parties.
10.9 In these terms, headings are for convenience only and do not affect the interpretation of these terms and, unless the context otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b) words with a capital letter where defined in these terms have that meaning;
(c) words importing a gender include any gender;
(d) other parts of speech and grammatical forms of a word or phrase defined in these terms have a corresponding meaning;
(e) an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and vice versa;
(f) a reference to any thing (including, but not limited to, any right) includes a part of that thing;
(g) a reference to a party in a document includes that party's successors and permitted assigns;
(h) a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws varying, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
(i) a reference to a document or agreement includes all amendments or supplements to, or replacements or novations of, that document or agreement.
10.10 The Client indemnifies the Company against any or all taxation liability arising from these terms or Services provided to the Client.
10.11 The foregoing provisions of these terms apply except as otherwise agreed in writing between the Client on the one hand and the Company on the other.