These Terms and Conditions apply to products supplied and services carried out by Loaded and they should be read in conjunction with any proposal, quote or contract prepared by Loaded.
Your use of our Services is sufficient to be taken as acceptance in full of the current version of these Terms and Conditions. It is not necessary for us to get your express agreement or signature to these Terms and Conditions. If you do not agree to these Terms and Conditions at any time, please discontinue use of the Services and contact us.
Unless otherwise agreed, in writing, these terms apply to the exclusion of any inconsistent provisions, which may appear on any order form, or other documentation issued by you. They will apply to any variations to a Proposal or Project, and to any supplementary work on a Project, which may be the subject of verbal agreement.
1. DEFINITIONS – in these Terms and Conditions:
“CLIENT”, “YOU” and “YOUR” means the person or company who contracts with Loaded to provide products and services. An Agent may represent the Client who acts with the Client’s authority and arranges or directs services on the Client’s behalf.
“LOADED”, “US” “WE” and “OUR” means Loaded Technologies Pty Ltd ACN 107 478 535.
“PARTIES” means Loaded and the Client.
“PROPOSAL” means any verbal or written offer from Loaded to provide services and goods and includes a quotation or contract prepared by Loaded.
“SERVICES” or ”PROJECT” means the services or goods (including licences) to be provided by us to you, as detailed in the proposal and may include (but are not limited to) CRM consulting and implementation, CRM hosting and support, web hosting, website development, business intelligence and marketing automation.
2. ROLE OF AGENT – if there is an Agent for the Client, and the Agent accepts the proposal then the Agent warrants to us that the Agent has your authority to do so and accepts that the Agent is personally liable for your obligations under the engagement. If the person who accepts the Proposal does not indicate in writing he is an Agent at the time of acceptance, he is the Client and liable accordingly.
3. FEES – the proposal indicates whether we will provide services for a fixed price or a fee calculated by a schedule of rates (time and materials). If a schedule of rates, then we may give an estimate of the total cost.
If any activity is required, which is outside the scope of works of the Proposal or requires effort greater than was originally estimated, we may charge for such additional work at the current standard hourly rates for personnel and equipment. During the provision of Services, we will provide regular updates on project progress. We will charge the hire of specialised services, if necessary and not available within our Company or our subcontractors, at cost plus a percentage fee for procurement.
Unless stated Goods and Services Tax (“GST”) has not been included in the hourly rates or fixed prices in our Proposals and we will add GST to any amount to be charged to you.
Any fees or schedule of rates contained in the Proposal are current for a period of three months from the date of the Proposal and may thereafter, be varied in accordance with changes in the market for Services, Consumer Price Index (CPI) (Sydney All Groups) and other statutory charges.
4. TERMS OF PAYMENT – at our discretion, invoices may be rendered fortnightly, monthly, or on completion of work, and are due for payment within the terms specified when quoted (normally within 14 days of issue for all items excluding licences which are within 7 days of issue) (“Payment Terms”).
You can pay our invoices by cheque, EFT or credit card. Any credit card payment will incur a 2% surcharge.
In some circumstances, accounts may be due and payable prior to completion of the Services. Non-payment of invoices may result in us withholding or suspending the Project or the Services.
Disbursements will be charged at cost (these include items such as express postage, document printing, couriers and similar charges).
If you dispute any part of the invoice then you must give us a written schedule of items disputed within ten working days of the receipt of the invoice.
If you do not pay an account within the Payment Terms:
We may suspend the Services, support for the Services and access rights until we receive full payment of the overdue amount.
We may charge interest at 3% per month on any amounts unpaid after 14 days from the date of issue of the invoice (or the terms specified).
We may engage a collection agency to collect any overdue payments. In jurisdictions that allow the passing to the customer of costs of engaging a third party to collect outstanding payments, you will be responsible for the costs associated with the recovery of your debt.
5. LIMITATION OF LIABILITY – Our liability for a breach of the Australian Consumer Law (or any equivalent legislation) is limited, at our option, to either providing those Services again, or refunding the price of that part of the service in respect of which the alleged breach occurred.
Unless expressly stated to the contrary in the quotation or contract, we are not liable to you for any indirect, special or consequential loss (including but not limited to loss of profits or loss of revenue, loss of data, loss of business or opportunity) however caused in connection with or related to the Services.
All terms, conditions or warranties, which may be implied into these Terms and Conditions, are excluded to the extent permitted by law.
6. INTELLECTUAL PROPERTY (“IP”) – We retain copyright in all drawings, reports, specifications, computer disks and any other documents prepared by us. We licence you alone to use this material in connection with the project for which it is prepared.
You agree that the IP in the core code of licensed software remains the property of the software vendor. We agree that the IP in any customisations made to the code base of any licensed software and implemented by us will be your property.
If you are in breach of any obligation to make payment to us, we may revoke the Proposal or the Services and you must return to us all material in your possession, power or control.
7. TERMINATION – The rights of the Parties in relation to termination of a Project or the Services depends on the type of Services.
Time and Materials services (T&M) – 14 days’ notice unless otherwise specified in the Proposal.
Licences – are paid by you in advance and are not able to be terminated. However, you may choose not to renew any licence.
Hosting – one month’s notice but no refund on prepaid hosting services. Cancellation notification should be sent to email@example.com.
Support – for Client’s on a Loaded Support SLA service, one month’s notice but no refund for services paid in advance. Cancellation notification should be sent to firstname.lastname@example.org.
8. DISPUTE – The Parties must exhaust the provisions of this clause before initiating legal proceedings.
The Parties must use their best endeavours and act in good faith to resolve any dispute arising in connection with the Proposal, the Services or these Terms and Conditions by personal contact and negotiation between their respective senior management.
If the Parties’ senior management cannot resolve the dispute within a ten business days of notification of the dispute, either Party may then take any additional action it deems necessary to resolve the dispute, including initiating legal proceedings.
Nothing in this Clause prevents either Party from seeking urgent interlocutory relief from a Court at any time.
9. REPORTS AND DOCUMENTATION – We may provide reports and documents to you, which are for your exclusive use at a specified time, for a specific purpose and a particular project and should not relied upon for other projects or purposes or by a third party without written permission from us.
10. GOVERNING LAW – The laws of New South Wales, Australia govern the relationship between the Parties and you agree to be subject to those laws and the courts of that jurisdiction.
11. COMMUNICATIONS – During our performance of the Services, we may wish to send messages and/or documents to each other by e-mail or facsimile. As e-mail or facsimile carry with them the possibility of inadvertent misdirection, or non-delivery of confidential material, unless you notify us otherwise, you consent to the use of e-mail and/or facsimile.
All risks connected with sending by e-mail commercially sensitive information relating to your business are borne by you and are not our responsibility. If you do not accept the risk, you should notify us in writing that e-mail is not an acceptable means of communication.
It is the recipient’s responsibility to carry out a virus check on any attachments before launching any attachments, whether received by email, on disk or otherwise.
12. NO POACHING OF STAFF – The Parties agree that during the provision of the Services and for 1 year after termination of the Services, they must not without the written consent of the other party employ or seek to employ a member of the other party’s staff who has been involved with the Proposal or the Services.
13. PROPOSAL OR CONTRACT TO TAKE PRECEDENCE – in the event of any conflict between these Terms and Conditions and a Proposal or Contract, the Proposal or Contract will take precedence.
14. LOADED ACTS AS A RESELLER – You acknowledge and agree that we are a reseller of licenced products and if you purchase a licence from us, you will have a direct relationship with the software vendor.
You also acknowledge that we may use Amazon Web Services (“AWS”) or a similar provider for hosting services. You agree to the terms of the Service Levels Agreement with AWS or other provider.
15. REASONABLE USE – You acknowledge that there will be reasonable use provisions in relation to any Hosting and Support services and that we will disclose these to you. You agree that should you exceed the reasonable use provisions we may charge you a higher fee or require you to change your hosting / support arrangements.
Last modified: 7th May 2015.
If you have any questions concerning this policy please contact us on +61 2 8282 2900. You can also fill in the contact us form.