Supply of Services - Terms and Conditions

Thank you for visiting the MOQdigital website (www.MOQdigital.com.au). This page will help you make an informed decision about the terms and conditions that we supply services.

Supply of Services - Terms & Conditions

1.    Supply.  MOQdigital (ABN 43 112 930 515) (“MOQdigital”) agrees to supply services (“Services”) to the Customer on these standard terms and conditions (“Terms”).

2.    Purchase Orders. Only these Terms (not other terms and conditions which may be attached to or incorporated in a purchase order) form part of the agreement between the parties.  Acceptance of a purchase order will not be acceptance of any such terms or conditions.

3.    Prices and Payment.  Payment terms are strictly 30 days from the date of invoice.   Services will be invoiced on a fortnightly basis or on completion or as otherwise prescribed in the documents describing the Services to be supplied.   

4.    Warranty.  MOQdigital makes no warranty in relation to the Services other than as contained in these Terms or as prescribed by a law which cannot be excluded.  Defects in Services, or the deliverables created by performance of the Services, reported to MOQdigital within 30 days of delivery of the Service will be rectified by MOQdigital at no charge to the Customer.  MOQdigital will not provide claimed warranty services for defects or deficiencies in Services or the deliverables which are caused by:

  1. external causes including natural disaster, fire, accident, neglect, misuse, vandalism, water, lightning, power surge or spike;
  2. the use of a deliverable for other than its intended purpose;
  3. the use with or connection of a deliverable to items not approved by MOQdigital;
  4. the performance of maintenance or attempted repair to deliverables by persons other than MOQdigital or as authorised by MOQdigital; or
  5. changes made to the deliverables to the operating environment in which the deliverables operate.

5.    Performance.  MOQdigital will use its reasonable endeavours to perform the Services by the date agreed but will not be liable for any delays in performance caused by matters beyond its control.  Where any delay arises because of an act or omission by the Customer or its agents, or any third party providing goods or services to the Customer as a result of which MOQdigital incurs additional direct expenses in performing the Services, the Customer must pay for those additional costs or expenses.

6.    Acceptance.  Unless the Customer gives MOQdigital written notice of any aspect of the Services or a deliverable created by performance of the Services which is alleged by the Customer to be not in accordance with these Terms or any applicable specifications, within 14 days of the date of performance of those Services or delivery of that deliverable, the Customer is deemed to have accepted those Services or that deliverable on performance or delivery.  Where the Customer puts a deliverable to commercial use, it is deemed to have accepted that deliverable and the Services performed in relation to that deliverable on the first day of such use, whether or not a notice of the kind contemplated by this clause is given to MOQdigital as required.

7.    Confidentiality.  MOQdigital and the Customer agree that they will keep at all times as strictly confidential any confidential information that is disclosed or provided by one party to the other.  In this clause, “confidential information” means information in any form but does not include information that is already in the public domain at the time that it is disclosed or becomes part of the public domain otherwise than as a result of an unauthorised disclosure by MOQdigital or the Customer.

8.    Intellectual Property.  The Customer acknowledges that:

  1. All Intellectual Property Rights in any Existing Material remain vested in the party that owns the Intellectual Property Rights at the Commencement Date (Owner); and any adaptation, translation or derivative of that Existing Material, vests in, or, is hereby transferred or assigned to the Owner, immediately upon creation.
  2. Intellectual Property Rights in New Material vests in, or is hereby transferred or assigned by the MOQdigital to, the Customer; and the Customer grants the MOQdigital a non-exclusive, perpetual, irrevocable, royalty free, transferrable licence to the New Material to use, copy, adapt, translate, manufacture and in any other way exploit the Intellectual Property Rights in that New Material.
  3. The Customer grants the MOQdigital a non-exclusive, non-transferable licence for the Contract Period for the MOQdigital and its Personnel to use the Customer’s Materials to the extent necessary for the MOQdigital to perform its obligations under the Customer Contract.
  4. On the acceptance of a deliverable that incorporates the MOQdigital’s Existing Material, MOQdigital will grant the Customer a non-exclusive, non-transferable, perpetual, royalty-free licence to use, modify and duplicate material created specifically for the Customer which contains such pre-existing intellectual property rights, but solely for the Customer’s own internal purposes, Any software developed as part of the Services will be licensed to the Customer on the terms set out in the attached proposal or as otherwise agreed between MOQdigital and the Customer in writing.
  5. On the acceptance of a deliverable that incorporates Existing Material that is owned by a third party, including third party software, the Customer is granted a non-exclusive licence to that third party Existing Material to use, reproduce and adapt that third party Existing Material on the terms and conditions and fees provided in the proposal, or if no terms and conditions or fees are stated in the proposal; to use, reproduce and adapt that third party Existing Material for the Customer’s own internal use in connection with, or for the operation, modification, support and/or use of, that deliverable.
  6. Nothing in this clause affects the Intellectual Property Rights in any open source software.  Any Intellectual Property Rights in any open source licence are subject to the terms of the open source licence under which it is provided.
  7. Any rights to be conferred on the Customer under this clause will only commence on payment of all charges payable in connection with those rights.

9.    Termination by MOQdigital.  Where the Customer:

  1. makes default in any payment or breaches any of these Terms and fails to rectify that default or breach within 14 days of receipt of a notice to do so from MOQdigital;
  2. becomes unable to pay its debts as and when they fall due; or
  3. commits an act of bankruptcy or, being a company, enters into liquidation or provisional liquidation whether compulsory or voluntary or compounds with its creditors generally or has a receiver or receiver manager or administrator appointed over all or part of its assets or passes a resolution for winding-up or a petition is presented for its winding-up. MOQdigital may without prejudice to any of its rights or remedies under these Terms or otherwise by notice to the Customer:
  4. suspend further supply and require payment in advance for future supply;
  5. terminate the agreement created by the attached letter and all or any purchase orders for Services which may have been issued under it and accepted by MOQdigital;
  6. claim immediate payment of all moneys due by the Customer in respect of all Services which will then be immediately due and payable notwithstanding the due date or dates for payment or any terms agreed by MOQdigital; and/or
  7. continue to enforce its rights and recover from the Customer such payments and any other amounts owing as and when they fall due.

10. Termination by the Customer.  Where MOQdigital:

  1. breaches any of these Terms and fails to rectify that default or breach within 14 days of receipt of a notice to do so from the Customer;
  2.  becomes unable to pay its debts as and when they fall due; or
  3. commits an act of bankruptcy or, being a company, enters into liquidation or provisional liquidation whether compulsory or voluntary or compounds with its creditors generally or has a receiver or receiver manager or administrator appointed over all or part of its assets or passes a resolution for winding-up or a petition is presented for its winding-up, the Customer may without prejudice to any of its rights or remedies under these Terms or otherwise by notice to MOQdigital:
  4. terminate all or part of the agreement created by the proposal; and/or
  5. continue to enforce its rights under these Terms, including seeking delivery of agreed and paid for services.

11. No Representations.  The Customer acknowledges that MOQdigital has not made any warranty or representation, express or implied, in relation to the Services, including whether they are suitable for a particular purpose (whether such purpose was made known to MOQdigital or not), unless provided in writing.

12. No Implied Terms.  To the fullest extent permitted by law, the parties agree to exclude any terms which would otherwise be implied into these Terms by any statute.  The liability of MOQdigital for a breach of a condition or warranty implied into these Terms by the Competition and Consumer Act, 2010 is limited at the option of MOQdigital:

  1. if the breach relates to goods, to the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods or the payment of the cost of having the goods repaired; and
  2. if the breach relates to services, the supplying of the services again or the payment of the cost of having the services supplied again.

13. Limitation of Liability.  MOQdigital is not liable to the Customer for any indirect or consequential damages, loss of profits, revenue, data or use arising out of or in relation to the supply of Services, even if MOQdigital knew or should have known of the possibility of such loss or damage and whether damages are claimed in contract, tort (including negligence) or statute.  Except in relation to liability for personal injury (including sickness and death), or damage to tangible property, MOQdigital’s liability to the Customer in respect of any loss or damage (including consequential or indirect loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of the supply of Products and/or Services or in respect of a failure or omission on the part of MOQdigital to comply with its obligations is, in aggregate, limited to an amount equal to the amount paid by the Customer to MOQdigital under the relevant order.

14. Variation.  Any variation to these Terms must be in writing.  Variations to any of the Services agreed to be supplied will be charged by MOQdigital at its then current rates for those additional services, unless otherwise agreed in writing. 

15. General.  Notices must be in writing and sent by mail or hand delivery to the address of the receiving party and are deemed delivered, in the case of:

  1. hand delivery, on delivery; or
  2. posting, three days after dispatch; and No leniency, indulgence or extension of time granted by MOQdigital to the Customer will prejudice any of MOQdigital’s rights in any way or constitute a waiver of any of MOQdigital’s rights.

If any of these Terms are for any reason declared to be or become unenforceable, invalid or illegal, the remaining Terms will remain in full force and effect. These Terms are governed by the laws of Queensland and the parties agree to submit to the non-exclusive jurisdiction of the courts of Queensland.

16. Taxes and GST.  The amount payable to MOQdigital is inclusive of existing taxes, duties and government charges imposed or levied in Australia in connection with the supply of the Products and Services.  The Customer is liable for any new or varied taxes, duties or charges imposed subsequent to MOQdigital’s quotation or proposal or to this agreement in respect of the supply of the Products and Services.  MOQdigital will issue a valid tax invoice where GST is to be recovered.  

17. Insurance.  MOQdigital will, during performance of the Services, hold insurance policies for the following risks and to the following minimum amounts:

  1. Public Liability:  $20 million per event and in the aggregate;
  2. Professional Indemnity:  $5 million per event and in the aggregate; and
  3. Workers Compensation:  to the extent required by law.