- “AVP” means AVP Solutions Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of AVP Solutions Pty Ltd.
- “Client” means the person/s requesting AVP to provide the Services as specified in any invoice, document or order, and if there more than one person requesting the Services is a reference to each person jointly and severally.
- “Services” means all Goods (which includes any goods, hardware, files, information, printed or virtual material, data or software, whether supplied from a third party software development company or where custom developed or programmed for the Client) or Services (which includes any advice or recommendations, support and advocacy services, assessment and treatment planning, reporting, technical service and support, brand integration or strategies, analysis, training, and project management or service sourcing) supplied by AVP to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
- “Price” shall mean the cost of the Services as agreed between AVP and the Client subject to clause 4 of this contract.
- “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this agreement, either party’s Intellectual Property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information and pricing details.
- The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by AVP.
- These terms and conditions may only be amended with AVP’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and AVP.
- None of AVP’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of AVP in writing nor is AVP bound by any such unauthorised statements.
- Once accepted by the Client, AVP’s quotation shall be deemed to interpret correctly the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, AVP shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
- This agreement constitutes the entire agreement between AVP and the Client, and the Client hereby acknowledges that no reliance is placed on any representation made by AVP, but not embodied in this agreement.
- Any advice, recommendations, information, assistance or service provided by AVP in relation to Services provided is given in good faith, is based on information provided to AVP, and AVP’s own knowledge, and experience. Whilst it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Services, human error is possible under these circumstances, and AVP shall make all effort to offer the best solution to the Client.
- The Client warrants that it has not relied on any representation made by AVP which has not been stated expressly in this agreement or upon any descriptions or illustrations or specifications contained in any document, including any catalogues or publicity material produced by AVP.
- The Services supplied under this agreement do not include, unless otherwise specified in writing by AVP:
- travel and accommodation required to provide authorised on-site Services;
- courier and freight charges;
- products and services supplied by a third party. Where the provision of Services requires AVP to obtain products and/or services from a third party, the agreement between AVP and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to AVP, and the Client shall be liable for the cost in full including AVP’s margin of such products and/or services;
- support of other software, accessories, attachments, machines, hardware, peripherals, systems or other devices not supplied by AVP;
- rectification of lost or corrupted data arising from any reason other than the negligence, fault or omission of AVP;
- support which is rendered more difficult because of any changes, alternation, addition, modifications or variations to the Services, the operating system or the operating environment;
- attendance to faults caused by using the Goods;
- diagnosis or rectification of problems not associated with the Goods;
- loss or damage caused directly or indirectly by operator error or omission and over which AVP has no control; and
- any direct costs other than AVP’s personnel’s time and ordinary overheads.
- Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 (NSW & SA), the Electronic Transactions Act 2001 (ACT), the Electronic Transactions (Victoria) Act 2000, the Electronic Transactions Act 2003 (WA), the Electronic Transactions (Northern Territory) Act 2000, Section 14 of the Electronic Transactions (Queensland) Act 2001, Section 7 of the Electronic Transactions Act 2000 (TAS), Section 22 of the Electronic Transactions Act 2002 (NZ) (whichever is applicable), or any other applicable provisions of that Act or any Regulations referred to in that Act.
Change in Control
- The Client shall give AVP not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by AVP as a result of the Client’s failure to comply with this clause.
- During the project briefing, it is client’s responsibility to provide us with clear guidelines along with the flow or specific details you may require. When such details are not provided, we will proceed with our understanding of your requirements and quote accordingly. At a later stage, if a discrepancy arises, it may lead to additional costs to accommodate the changes. Thus, it is essential that you clarify every aspect of your website development and ensure that you have been quoted on the right requirements.
- Once proposal has been finalised, any additions, changes or enhancements in the functionality or design of the project will affect the proposal and may incur additional cost and a revised delivery date. All additional work, over and above the estimates is charged separately. Under no circumstances will AVP Solutions be liable for any delays caused by change in the project brief.
- Any complexity related to specific deliverable, must be advised in advance and included in the proposal for costing purposes. We operate in good faith and rely on our clients to disclose the full picture of their expectations. Any discrepancy arising due to unclear requirements or expectations will not be borne by AVP Solutions.
- Website content and all related materials need to be provided to us within the first two weeks of starting the project. Any delays thereafter may delay the project and may incur additional charges if it goes beyond reasonable timeframe.
- The client must recognize that at times there may be unforeseen circumstances that will delay the development process, particularly with reference to the integration of third party software. We will try our best to complete the project as agreed in the proposal. As long as it is within a reasonable period, the client agrees not to penalize us for any genuine delay, when every effort to keep the project on the proposed schedule is taken.
- AVP Solutionstakes no responsibility of any of the third party products, software or components used in the website development such as payment gateway, SSL certificates etc. We suggest you to take regular back-ups to avoid any disruptions.
- AVP Solutionstakes no responsibility of any open source products such as WordPress, Open Source carts, Joomla etc. It is clients responsibility to update all components and third party software’s.
- AVP Solutions offer packages in co-ordination with third party providers. Changes to the third party provider’s rules and policies may ultimately effect the services we provide or the terms and conditions herein.
- AVP Solutions owns copyrights of all codes written for any client, unless arrangements are made prior to start of the project. AVP Solutions warrants a license to use any custom built software for the client, for their use only. This license is granted while paying for the hosting. AVP Solutionscode cannot be transferred to any external host; this includes any access to the software codes.
- Domain registration charges are not included as a part of the proposal unless mentioned otherwise.
- Hosting charges are not included in the quotations unless mentioned otherwise AVP Solutions can organise an appropriate hosting solution if required, a quote for which will be submitted separately and approved by the client.
- Where clients decide to organise their own hosting, we should be consulted before finalising the type of hosting and database, as it should meet the requirements of the technology used for the development. Please note that we’ll require full access with hosting support for testing and deploying the application. AVP Solutions will not be liable for any delays or errors caused by direct or indirect actions of the hosting company.
- AVP Solutions cannot give access to their test servers and test websites to the clients or any third party.
- Technology support of additional 5 working hours is given to all medium and large size projects, for any basic modification or changes, which may be utilised for up to a period of one month after the delivery. Please note that these support hours are not applicable if the design or coding or any other aspect of the website has been altered by anyone other than the AVP team.
Payment / Refund terms
- All prices are quoted in Australian dollars are exclusive of GST unless specified.
- All invoices are to be processed as per the schedule via your preferred method of payment.
- Milestone payments must be made within 5 working days of each milestone/schedule, unless mutually agreed otherwise. Final payment must be made prior to website going live.
- Receipt of payment is deemed as acceptance of the quote, milestone, delivery or project.
- AVP Solutions reserves the right to negotiate and refund appropriate portion of the amount paid by customer towards the requested service. If you cancel your order after making the payment, but the work has not commenced, we will refund 75% of the payment that you have already made. If the order is cancelled after the commencement of work, the maximum refund or charge will be 50% of the invoice. There will be no refund or adjustments if cancellation is called when more than 50% of the work has been completed. All cancellations must be received in writing and can be sent via regular mail, email or fax. Telephone requests on cancellations will not be accepted.
- For minor or once-off works, payments need to be made either in advance or as per the terms mentioned in the invoice/proposal. If you require any changes to the terms, you must inform us in writing (emails accepted) within two working days of the receipt of the same.
- Late fees and charges: All outstanding invoices will incur a late payment fee of 10% of the pending amount and an administration fee of $5.50 per month, from the due date.
Due date:Is the date on which the payment is due as per the terms on the invoice/proposal
Outstanding Invoice: An invoice is deemed to be outstanding if the payment is still due after 14days of the expiry of the due date.
Debt Collection: Client is provided a further 7 days after late payment fee is applied to pay the invoice. Failure to pay will result in the outstanding amount referred to a debt collector. AVP Solutions will not be liable for any costs or charges associated with the recovery of the outstanding amount. Any charges associated with the recovery of the outstanding amount (debt collectors, administration charges, legal fees) will be referred to the client for processing.
- If you are late with a payment or have any queries regarding the Invoice, please contact Accounts Manager immediately on receiving the invoice or reminder emails.
- All communications/correspondences is generally done via emails. It is client’s responsibility to keep us updated with their relevant email addresses.
- Any payment relating to the domain name registration renewal or hosting or any 3rd party products or service purchased on behalf of the client will have to be in full and is non-refundable. In case of web-hosting renewals all cancellations must be notified to us 30 days before the renewal date.
- If client chooses a 3rd party hosting provider prior to starting a project, AVP Solutions will build and test the website on one of our own servers or hosted domains. The website may be transferred-off to the nominated 3rd party server upon full payment of all invoices and dues.
- All content of this website is a property of AVP Solutions unless otherwise specified. AVP Solutions reserves the right to change the content or policies without any prior notice.
- The project related copyrights can be transferred to the client at an additional cost, after the full payment of the project and upon signing the Certificate of Acceptance. AVP Solutions reserves the rights to refuse the transfer of ownership if irregular circumstances arise.
- Copyrights handed over to the client do not include rights to re-use the code for another website or re-sell the programming codes for any commercial or non-commercial purposes. In the case of business restructuring or ownership change, ownership of the website may be transferred from one owner to another. New owners are not allowed to re-sell or re-use for any commercial or non-commercial purpose.
- In an event of a Webmaster change, site owners are not allowed to display the credits to the new website, unless such time that the website functionality and appearance is changed by over 50% of our original work.
Disputes, Liability and Indemnity
- In an event of a dispute, AVP Solutions reserves the right to charge the client in full for the work done as well as for the resources spent in managing the dispute. In such an event, AVP Solutions reserves the right to charge the client without honouring any discounts that were previously honoured in good faith. Under no circumstances will AVP Solutions be liable for any damages arising from misrepresentation or misinformation.
- AVP Solutions reserves the right to refuse service to any client, if these are not aligned with our business operating principles and policies.
- AVP Solutions provides its services as is, without any guarantees on security or other issues leading to loss of data, sale or reputation. We ensure to the best of our ability that our systems and servers are protected from hackers, viruses, intruders and other online and offline problems, however we will not be held liable for any disruption of services if such situation arises.
- Relationship of AVP Solutions with its suppliers, partners and sub-contractors is of an independent nature. None of the parties have any power, right or authority to interfere or bind the other or assume or create any obligation or responsibility, whether expressed or implied, on behalf of the other or in the other’s name.
- Client will indemnify and hold AVP Solutions, its licensors, content providers, service providers, employees, agents, officers, directors, contractors and sub-contractors (the “Indemnified Parties”) harmless from your breach of any of these Terms And Conditions or any other terms, conditions, policies or procedures herein, including, without limitation, any use of content other than as expressly authorized in these Terms and Conditions. Client agrees that the indemnified parties will have no liability in connection with any such breach or unauthorized use, and you agree to indemnify and hold harmless the Indemnified Parties from any and all resulting loss, damages, judgments, awards, costs, expenses, and attorneys’ fees in connection therewith. You will also indemnify and hold the Indemnified Parties harmless from and against any claims brought by third parties arising out of your use of the information obtained from AVP Solutions.
- AVP Solutions will not be liable for any breach of the agreement which is caused by a matter beyond its reasonable control including but not limited to Act of God, fire, lightning, explosion, war, disorder, flood, earth quake, industrial disputes (whether or not involving their employees), extremely severe weather, or acts of local or central government or other competent authorities.
- The Client agrees that, in view of their nature, the Client’s use of the Services is at their sole risk. Whilst AVP will endeavour to ensure that the Services are of a high quality, neither AVP (nor any of their agents, contractors, licensees, employees or third-party providers involved in providing the Services) give any guarantee that the Services will be uninterrupted or free from error. Where necessary for commercial, technical or other reasons:
- any third-party provider connected to the Services may suspend or terminate its connection to the Services; and
- the Services may suspend or terminate their connection to any third-party provider.
- The Client agrees that any such suspension or termination referred to in clause (b) above will not constitute a breach of this agreement by AVP and that the Services are provided on an “as is” basis without guarantee of any kind.
- The Client further agrees that AVP will not be held liable for any costs, expenses, losses, damages or other liabilities (howsoever arising) which you may incur as a result of a suspension of the Services in accordance with clause (a)
- Subject to clause 10, AVP shall be under no liability whatsoever to the Client for any indirect, incidental, special and/or consequential loss and/or expense, claim and/or cost (including legal fees and commissions, loss of profit, business, contracts, opportunity, goodwill, reputation and/or anticipated saving) and/or for any loss or corruption of data suffered by the Client arising out of a breach by AVP of these terms and conditions and/or caused by any failure by the Client to comply with their obligations under this agreement (alternatively AVP’s liability shall be limited to damages which under no circumstances shall exceed the Price).
- Hosting is an annual charge which must be paid in advance for the whole year. Except if the client is under one of our ongoing packages.
- It is the client’s responsibility to renew the hosting in time ie. before the expiry date. Failure to renew in time can lead to loss of files, data, emails, backups etc. All unpaid hostings are disabled or deleted from the server.
- All renewals must be paid by seven working days prior to the expiry date. AVP will not be responsible for issues relating to delayed payment.
- Hosting Cancellation requests must be sent in writing or by email one month prior to the expiry of the same. Once the hosting has been renewed, it cannot be cancelled and must be paid for the full year.
- If the hosting is not paid and renewed before the expiry date. We reserve the right to disable the hosting and all associated services including emails and dns records. Additional charges will be applicable to re-enable the hosting. AVP will not be responsible for any loss of data, files, emails, backups, restoration costs etc.
- If a hosting has been cancelled / disabled then all files, emails, databases and backups will be deleted from the server without any notification to the client.
- Once all invoices are paid, it is client’s responsibility to request for the files subject to the below:
- All emails are to be downloaded on the client’s computer periodically. Email boxes must be kept within their quota limits. Periodical maintenance may be carried out on the email box and emails older than 6 months are deleted.
- Client’s must not use the email hosting for inappropriate content and other undesired emails which can result in spamming or infecting the server. Under such circumstances, immediate action will be taken and the required files and data will be deleted without any prior notice.
- AVP offer packages in co-ordination with third party providers. Changes to the third party provider’s rules and policies may ultimately effect the services we provide or the terms and conditions herein.
- Hosting are on shared and non-shared servers hosted via third party providers. AVP Solutions ensures best to our ability that our systems and servers are protected from hackers, viruses, intruders and other online and offline problems, however we will not be held liable for any disruption of services if such situation arises.
- All domain registrations and renewals are to be paid in advance.
- Expiration of a domain can result in service disruption and loss of domain.
- AVP Solutions will not be responsible if a domain expires due to non-payment / late payment of the charges. All payments must be made by seven working days before the expiry date.
- It is client’s responsibility to renew their domain names with us.
- All invoices and dues must be paid in full before we release the requested domain name.
- AVP Solutions has the domains in a common pool account and therefore cannot give access to its domain control panel.
- AVP Solutions offer packages in co-ordination with third party providers. Changes to the third party provider’s rules and policies may ultimately effect the services we provide or the terms and conditions herein.
Provision of the Services
- AVP may provide the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
- Any time specified by AVP for provision of the Services is an estimate only and AVP will not be liable for any loss or damage incurred by the Client as a result of provision being late. However both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that AVP is unable to provide the Services as agreed solely due to any action or inaction of the Client, then AVP shall be entitled to:
- Charge the Client additionally for re-providing the Services at a later time and date; orsubject to clause 3(b), terminate the contract.
Risk and Limitation of Liability
- AVP and the Client agree that the Client’s obligations to AVP for the provision of Services shall not cease (and ownership of any Goods shall not pass) until:
- the Client has paid AVP all amounts owing to AVP for the Services; and
- the Client has met all other obligations due by the Client to AVP in respect of all contracts between AVP and the Client.
- It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 1:
- the Client is only a Bailee of the Goods and must return the Goods to AVP on request.
- the Client holds the benefit of the Client’s insurance of the Goods on trust for AVP and must pay to AVP the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
- the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for AVP and must pay or deliver the proceeds to AVP on demand.
- the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of AVP and must sell, dispose of or return the resulting product to AVP as it so directs.
- the Client irrevocably authorises AVP to enter any premises where AVP believes the Goods are kept and recover possession of the Goods.
- AVP may recover possession of any Goods in transit whether or not delivery has occurred.
- the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of AVP.
- AVP may commence proceedings to recover the Price notwithstanding that ownership of the Goods has not passed to the Client.
Personal Property Securities Act 2009 (“PPSA”)
- In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
- Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Client to AVP for Services – previously provided (if any) and that will be provided in the future by AVP to the Client.
The Client undertakes to:
- promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which AVP may reasonably require to;
- register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
- register any other document required to be registered by the PPSA; or
- correct a defect in a statement referred to in clause 3(a)(i) or 8.3(a)(ii);
- indemnify, and upon demand reimburse, AVP for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby;
- not register a financing change statement in respect of a security interest without the prior written consent of AVP;
- not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of AVP.
- AVP and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
- The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
- The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
- Unless otherwise agreed to in writing by AVP, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
- The Client must unconditionally ratify any actions taken by AVP under clauses 3 to 8.5.
- Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
Security and Charge
- In consideration of AVP agreeing to provide Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
- The Client indemnifies AVP from and against all AVP’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising AVP’s rights under this clause.
- The Client irrevocably appoints AVP and each director of AVP as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to, signing any document on the Client’s behalf.
- Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
- The Client must inspect AVP’s Services on completion and must within two (2) days notify AVP in writing of any evident defect in the Services provided (including AVP’s workmanship) or of any other failure by AVP to comply with the description of, or quote for, the Services which AVP was to provide. The Client must notify any other alleged defect in AVP’s Services as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow AVP to review the Services that were provided.
- Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (“Non-Excluded Guarantees”).
- AVP acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
- Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, AVP makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. AVP’s liability in respect of these warranties is limited to the fullest extent permitted by law.
- If the Client is a consumer within the meaning of the CCA, AVP’s liability is limited to the extent permitted by section 64A of Schedule 2.
- If AVP is required to rectify, re-provide, or pay the cost of re-providing the Services under this clause or the CCA, but is unable to do so, then AVP may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services which have been provided to the Client which were not defective.
- If the Client is not a consumer within the meaning of the CCA, AVP’s liability for any defective Services is:
- limited to the value of any express warranty provided to the Client by AVP at AVP’s sole discretion;
- limited to any warranty to which AVP is entitled, if AVP did not manufacture the Goods;
- otherwise negated absolutely.
- Notwithstanding clauses 1 to 10.7 but subject to the CCA, AVP shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
- the Client failing to properly maintain or store the Goods;
- the Client using the Goods for any purpose other than that for which they were designed;
- the Client continuing to use the Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
- interference with the Services by the Client or any third party without AVP’s prior approval;
- the Client failing to follow any instructions or guidelines provided by AVP;
- fair wear and tear, any accident, or act of God.
- If during the course of providing the Services, AVP develops, discovers, or puts into operation a new concept, product or process which is capable of being patented, then such concept, product or process shall be and remain the property of AVP and the Client shall not use or supply the same in any way whatsoever without first obtaining the written consent of AVP.
- The Client warrants that all designs, specifications, information and instructions to AVP will not cause AVP to infringe any patent, registered design or trademark in the execution of the Client’s order. Furthermore, the Client agrees to indemnify, defend, and hold AVP harmless from all loss incurred or suffered by AVP arising from any claims (including third party claims) or demands against them where such loss was caused by any infringement or alleged infringement of any person’s Intellectual Property rights by the Client during its use of the Services.
Default and Consequences of Default
- Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at AVP’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
- If the Client owes AVP any money the Client shall indemnify AVP from and against all costs and disbursements incurred by AVP in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, AVP’s contract default fee, and bank dishonour fees).
- Without prejudice to any other remedies AVP may have, if at any time the Client is in breach of any obligation (including those relating to payment, whether or not the payment is due to AVP) AVP may suspend or terminate the provision of Services to the Client, and any of its other obligations under the terms and conditions. AVP will not be liable to the Client for any loss or damage the Client suffers because AVP has exercised its rights under this clause.
- Without prejudice to AVP’s other remedies at law AVP shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to AVP shall, whether or not due for payment, become immediately payable if:
- any money payable to AVP becomes overdue, or in AVP’s opinion the Client will be unable to make a payment when it falls due;
- the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
- Subject to clause 2, each party agrees to treat as confidential the other party’s Confidential Information, and agree not to divulge it to any third party, without the other party’s written consent.
Both parties agree to:
- use the Confidential Information of the other party only to the extent required for the purpose it was provided;
- not copy or reproduce any of the Confidential Information of the other party in any way;
- only disclose the other party’s Confidential Information to:
- employees and third-party providers who need access to the information and who have agreed to keep it confidential;
- its legal advisers and insurance providers if those persons undertake to keep such information confidential; and
- not disclose the other party’s Confidential Information to any person not referred to in this clause except with the other party’s prior written consent or if required by law, any stock exchange or any regulatory body.
- Either party must promptly return or destroy all Confidential Information of the other party in its possession or control at the other party’s request unless required by law to retain it.
- Confidential Information excludes information:
- generally available in the public domain (without unauthorised disclosure under this agreement);
- received from a third party entitled to disclose it;
- that is independently developed.
- The obligations of this clause 13 shall survive termination or cancellation of this agreement.
Cancellation and Termination
- Either party may, without liability, cancel these terms and conditions or cancel provision of the Services:
- if there is no contract term specified, at any time by giving thirty (30) days’ notice to the other party;
- if a contract term is specified, at any time after the end of the contract term by giving thirty (30) days’ notice to the other party;
- AVP may, in addition to their right to cancel under clause 1:
- do so at any time:
- prior to the commencement of the Services, by giving notice to the Client, in the event AVP determine it is not technically, commercially or operationally feasible to provide the Services to the Client;
- in the event the Client materially breaches these terms and conditions, and such breach is not capable of remedy.
- In the event that the Client:
- cancels the provision of Services prior to the expiry of any specified contract term, then the Client shall be liable to pay for the provision of the Services until the expiration of the contact term;
- fails to give notice of intention to cancel at least thirty (30) days prior to the expiration date of the contract term, the contract term shall automatically renew on a monthly basis, unless cancelled by way of the Client providing AVP with thirty (30) days’ notice.
- Should the Client, for any reason, cause the Services to be delayed for more than three (3) months after the acceptance date, this agreement will be terminated by AVP (at their sole discretion) and all Services completed, but not billed or paid, will be payable in full within seven (7) days from the date of the submitted invoice.
Privacy Act 1988
- The Client agrees for AVP to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by AVP.
- The Client agrees that AVP may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
- to assess an application by the Client; and/or
- to notify other credit providers of a default by the Client; and/or
- to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
- to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
- The Client consents to AVP being given a consumer credit report to collect overdue payment on commercial credit.
- The Client agrees that personal credit information provided may be used and retained by AVP for the following purposes (and for other agreed purposes or required by):
- the provision of Services; and/or
- analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
- processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
- enabling the collection of amounts outstanding in relation to the Services.
- AVP may give information about the Client to a CRB for the following purposes:
- to obtain a consumer credit report;
- allow the CRB to create or maintain a credit information file about the Client including credit history.
- The information given to the CRB may include:
- personal information as outlined in 1 above;
- name of the credit provider and that AVP is a current credit provider to the Client;
- whether the credit provider is a licensee;
- type of consumer credit;
- details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
- advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and AVP has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
- information that, in the opinion of AVP, the Client has committed a serious credit infringement;
- advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
- The Client shall have the right to request (by e-mail) from AVP:
- a copy of the information about the Client retained by AVP and the right to request that AVP correct any incorrect information; and
- that AVP does not disclose any personal information about the Client for the purpose of direct marketing.
- AVP will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
- The Client can make a privacy complaint by contacting AVP via e-mail. AVP will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
Collection and Disclosure of Personal Information
- Further to clause 15 above, the Client agrees that:
- AVP may collect the Client’s information by the following means:
- directly from the Client (including, but not limited to, where the Client provides information to AVP when visiting one of AVP’s stores or websites, or completes an application form or agreement for one of AVP’s Services, or contacts AVP with a query or request);
- from third parties such as AVP’s related entities, business partners, credit reporting bodies (CRBs), wholesale or other customers, or the Client’s representatives;
- from publicly available sources of information;
- from AVP’s records of how the Client uses their Telstra products or services;
- when legally authorised or required to do so;
- from the third parties listed in the section of this Statement with the heading “When we disclose Your Information”
- failure to provide AVP with relevant information may result in AVP’s inability to provide the Client with the Goods or Services requested;
- AVP may store the Client’s information in hard copy or electronic format in storage facilities that are owned and operated by AVP or by AVP’s service providers. AVP will take reasonable steps to maintain the security of the Client’s information and to protect such information from unauthorised disclosures. While AVP endeavours to maintain the security of the Client’s information, AVP accepts no responsibility for a breach of security. The Client must take appropriate care to help safeguard their information;
- in some cases, AVP may disclose the Client’s information to organisations which are based outside Australia. For example, AVP may disclose the Client’s information to AVP’s service providers in Canada, Hong Kong, India, Japan, Malaysia, Philippines, Singapore, Spain, United Kingdom and the United States of America;
- AVP may disclose the Client’s information to third parties who provide services to AVP, including organisations and contractors which assist AVP in providing Services to the Client. Such Services may include, but are not limited to:
- customer enquiries;
- installation, maintenance and repair Services;
- mailing operations, billing and debt-recovery functions;
- information technology and network services;
- market research, marketing, telemarketing and door-knocking services;
- AVP may also disclose the Client’s information:
- to the Client’s authorised representatives or advisers and/or when the Client requests AVP to do so;
- to credit-reporting bodies (CRBs) and fraud checking agencies, and to credit providers for credit related purposes such as credit-worthiness, credit rating, credit provision and financing (in accordance with clause 15 above);
- to AVP’s dealers, related entities or business partners;
- to other telecommunication and information service providers, or to AVP’s wholesale and other customers from or through whom the Client may acquire products or services (for example, AVP may need to disclose the Client’s information for billing purposes);
- to the manager of the Integrated Public Number Database, and other organisations as required or authorised by law;
- to law enforcement and national security agencies, and other government and regulatory authorities as required or authorised by law;
- to third parties who assist AVP to manage or develop AVP’s business and corporate strategies and functions, including AVP’s corporate risk or funding functions; and
- for the purposes of facilitating or implementing transfer/sale of all or part of AVP’s assets or business.
- The Client further agrees that it is the Client’s responsibility to advise their customers that private information will be disclosed to AVP. AVP accepts no liability for any direct or indirect privacy breach in the event that the Client fails to comply with this clause.
- If a dispute arises between the parties to this contract then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
- referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
- conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
- The Services are provided by AVP from their principal business premises in Australia. As such, the Client agrees that the laws and statutes of Australia (and the jurisdiction of the Beenleigh Magistrate’s Court) shall apply to any dealings, actions or claims arising out of, or in relation to, this agreement, or the Client’s use of the Services, irrespective of any conflict with any laws and statutes applicable to the Client’s country of domicile.
- The Client further acknowledges and agrees that the filing of a claim against AVP (if any) must be made in Queensland, the State of Australia in which AVP’s principal business premises in Australia is domiciled, and that any legal proceedings will be conducted in English.
- AVP makes no representation that Services offered are appropriate, available or suitable for use in countries outside of Australia.
- The failure by AVP to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect AVP’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
- The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by AVP nor to withhold payment of any invoice because part of that invoice is in dispute. Any invoice query/dispute will not be recognised if notified outside of fourteen (14) days from the date of the invoice.
- AVP may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
- The Client agrees that AVP may amend these terms and conditions at any time. If AVP makes a change to these terms and conditions, then that change will take effect from the date on which AVP notifies the Client of such change via email. The Client will be taken to have accepted such changes if the Client makes a further request for AVP to provide Services to the Client.
- Neither party shall be liable for any default due to fires, explosions, severe weather, industrial disputes, insurrection, requirements or regulations, or any civil or military authority, acts of war (whether declared or not), civil unrest, acts of God, earthquake, flood, riot, embargo, government act, strike, lock-out, storm, terrorism, failure or outage of any telecommunications links or other connections which are beyond the reasonable control of either party.
- The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
Please note that AVP Solutions reserves the right to change the terms and conditions without notice.