Terms of Service

These following terms and conditions (the “Agreement”) are a legal agreement between you (“the Client”, “You”, or “Your”) and Techsmax Pty Ltd (ABN 33 604 244 966) ( “Techsmax”, “We”, “Our”, or “Us”) and govern your use of Techsmax’s services, including mobile applications, software, hardware, and other products and services (collectively, the “Services”). The Client and Techsmax may also be referred to as “Party” or together as “Parties”.

If you are using the Services on behalf of a business, you represent to us that you have authority to bind that business to these terms, and you accept these terms as an authorised person on behalf of that business.

1. SERVICES

1.1. Nature of Services

1.1.1 Subject to the terms and conditions of this Agreement, the Services is solely for the Client’s use.

1.1.2 The Client does not under this Agreement acquire any ownership rights in and/or to any software, documentation, tools, techniques, methodologies, or other materials which is proprietary to Techsmax (“Techsmax Proprietary Material”).

1.1.3 The Client does not under this Agreement acquire any ownership rights in and/or to any software, documentation, tools, techniques, methodologies, or other materials which is proprietary to any third party (“Third Party Proprietary Material”).

1.2. Warranties and Obligations

1.2.1 All third-party equipment and other products provided by Techsmax as part of the Services are provided with a pass-thru-warranty from the original suppliers. Techsmax will, to the extent available or permitted, pass through to the Client any warranties from such third parties. Upon request, Techsmax will inform the Client about any applicable warranty terms and conditions of such third parties.

1.2.2 Unless specifically stated, the Services are provided on an “as is” basis. Techsmax makes no representations or warranties of any kind, whether express, implied or statutory, about the suitability, availability, timeliness, accuracy or completeness of the Services for any purposes or non-infringement.

1.2.3 The Client must provide Techsmax with directions, instructions or information which are requested by Techsmax and which are reasonably necessary to assist Techsmax in the performance of its obligations under this Agreement.

1.2.4 The Client must report any deficiencies in the Services to Techsmax in writing within 30 days after such Services are performed to receive the warranty remedy. The Client’s sole and exclusive remedy and Techsmax’s entire liability for breach of this warranty will be re-performance of the deficient Services. If, for any reason, Techsmax is unable or fails to correct such deficiencies, The Client may start the Dispute Resolutions as provided in Section 3.

1.2.5 The Client acknowledges that the system will require ongoing support and maintenance following completion of the Services, and the Client acknowledges that they will be responsible for the support, maintenance, and upkeep of the equipment upon completion of the Services by Techsmax.

1.2.6 Techsmax will bear no liability or otherwise be responsible for delays in the provision of Services, or any portions thereof, occasioned by the Client’s failure to timely complete a task or adhere to its own schedule.

1.3. Restrictions

The Client shall not, nor permit anyone else to directly or indirectly, to:

(a) access or monitor any material or information on any Techsmax’s system using any manual process or robot, spider, scraper, or other automated means;

(b) attempt to gain unauthorised access to any portion or feature of the Services, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services;

(c) use any device, software or routine to interfere or attempt to interfere with the proper working of the Services, or with any other person’s use of the Services;

(d) copy, reproduce, modify or create derivatives of any part of the Services, transmit, resell or distribute in any way software, material, information or Services from Techsmax;

(e) permit any third-party to use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement;

(f) probe, scan or test the vulnerability, nor breach the security or authentication measures of the Services or any network connected to the Services;

(g) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services or Techsmax’ system or network;

(h) use the Services for any purpose that is unlawful or prohibited by this Agreement; and

(i) remove or obscure any proprietary notices on the Services.

1.4. Independent Contractor

1.4.1 The Parties understand and intend that Techsmax shall perform the Services as an independent contractor. Nothing in this Agreement will be deemed to create an employer/employee relationship agency, partnership, or joint venture between the Parties.

1.4.2 Techsmax will determine the method, details, and means of performing the Services. At its own expense, Techsmax may use employees or contractors to perform the Services under this Agreement.

2. COMPENSATION AND PAYMENT

2.1. Fees

2.1.1 The Client agrees to pay Techsmax for Services completed in accordance with the proposal or quotation provided to the Client, pursuant to clause 4.2.4 and 4.2.5.

2.1.2 Techsmax may offer some Services to be paid on a recurring basis (“Subscription Services”). Subscription Services may subject the Client to recurring fees (“Subscription Fees”) and/or terms, pursuant to clause 4.2.5. Subscription Fees are strictly non-refundable and any unpaid Subscription Fees must be promptly paid through the end of the Subscription Service’s term. It is the Client’s responsibility to notify Techsmax by the end of their Subscription Service’s term of their intent to renew or terminate.

2.1.3 Upon renewal of Subscription Services, Techsmax may increase the Subscription Fees up to its then-current price. If this increase applies to the Client, Techsmax will notify the Client in writing, and the increased Subscription Fees will apply at the start of the next renewal term. If the Client does not agree to this increase, either Party can choose to terminate the Subscription Services at the end of the then-current term.

2.2. Payment

2.2.1 The Client’s payment terms will be in Australian Dollars (AUD). The Client agrees to be responsible for paying all GST on the Services.

2.2.2 For non Subscription Services, invoices need to be paid in full within 30 days after the invoice date, unless otherwise stated.

2.2.3 For Subscription Services, Subscription Fees need to be paid in full before the terms commence.

2.3. Overdue Invoices

2.3.1 In addition to any other remedies available to Techsmax for late payments, the Client will be obligated to pay Techsmax an administration fee of $40 for each overdue invoice and an interest charge equal to 0.025% per day of the amount overdue, compounded daily for the number of days from the payment due date to and including the payment date.

2.3.2 The Client will be responsible for any costs, including attorney’s fees, incurred by Techsmax in collecting any past due amounts under this Agreement.

2.4. Disputed Charges

2.4.1 If the Client wishes to dispute all or part of any Techsmax’s invoice, it may only do so in accordance with the following: (a) the dispute must be based on reasonable grounds and made in good faith; and (b) the part of any invoices not in dispute must be paid to Techsmax prior to the due date.

2.4.2 The Client will notify Techsmax in writing, no later than 30 days after the invoice date, of any questions or issues relating to items billed on an invoice, or all fees and charges will stand.

2.6. Disbursements

2.6.1 Techsmax may incur disbursements, being money it pays or is liable to pay to others on the Client’s behalf. Techsmax will advise the Client of these fees as soon as practicable, which the Client will be required to pay directly as necessary. Techsmax is not responsible for these potential third party fees, which are payable when due and are subject to variance at any time.

2.6.3 Additional compensation will include reimbursement for all reasonable and necessary travel, living, and out-of-pocket expenses incurred by Techsmax in providing the Services, when travel is required in order to provide the Services. Techsmax will obtain the Client’s approval for billable travel prior to incurring any expenses for such travel.

2.7. Variables

Under some circumstances, Techsmax may be required to vary the Services due to factors outside of its control. Techsmax will endeavour to advise the Client of these variables within a reasonable timeframe.

3. DISPUTE RESOLUTION

3.1 If any difference or dispute arises between the Client and Techsmax, either Party may not commence any legal proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).

3.2 A Party to this Agreement claiming a dispute (the “Dispute”) which has arisen under the terms of this Agreement, must give written notice to the other Party detailing the nature of the Dispute, the desired outcome and the action required to settle the Dispute (the “Notice”).

3.3 Within 14 days of receipt of the Notice by either Party, the Parties to this Agreement must endeavour in good faith to resolve the Dispute expeditiously by negotiation or such other means upon which they may mutually agree.

3.4 If for any reason whatsoever, 30 days after the date of the Notice, the Dispute has not been resolved, the Parties must either agree upon selection of a mediator or request that an appropriate mediator be appointed by the Victorian Association for Dispute Resolution and attend a mediation.

3.5 It is agreed that mediation will be held in Melbourne, Victoria, Australia.

3.6 The Parties are equally liable for the fees and reasonable expenses of a mediator and the cost of the venue of the mediation (if applicable), and without limiting the foregoing, undertake to pay any amounts requested by the mediator as a pre-condition to the mediation commencing. The Parties must each pay their own costs associated with the mediation.

3.7 All communications concerning negotiations made by the Parties arising out of and in connection with this dispute resolution clause are confidential and to the fullest extent possible, must be treated as “without prejudice” negotiations.

3.8 If 30 days have elapsed after the start of a mediation of the Dispute and the Dispute has not been resolved, either Party may ask the mediator to terminate the mediation and the mediator must do so.

3.9 In the event that the Dispute is not resolved at the conclusion of the mediation, either Party may institute legal proceedings concerning the subject matter of the Dispute thereafter.

4. TERM AND TERMINATION

4.1. Term

The term of this Agreement will begin when the Clients confirms to engage Techsmax to provide Services, and will remain in full force and effect until the expiration of the term of all Services, unless earlier terminated as provided in this Agreement.

4.2. Termination

4.2.1 Techsmax may terminate this Agreement if the Client fails to promptly pay any fees or charges when due, provided that Client is notified in writing of the failure, and such failure is not rectified within 14 days after receipt of such written notice.

4.2.2 Techsmax may terminate this Agreement for any breach by the Client of this Agreement by providing 14 days written notice of the breach to the Client.

4.2.3 The Client may terminate this Agreement for a serious breach of this Agreement by Techsmax by providing 30 days written notice to Techsmax. The Client must allow Techsmax the opportunity to remedy the serious breach within 30 days’ notice, and if the breach is satisfactorily remedied, the Client will not terminate this Agreement.

4.2.4 Termination of this Agreement will not relieve Client of its obligations to pay for any Services performed. Upon notice of intent to terminate by either Party, the Client will pay for the work which has been done, and at the time the Agreement is terminated, will pay for any outstanding works completed between the provision of the notice to terminate and the cessation of this Agreement.

4.2.5 For Subscription Services when there are no breaches of this Agreement by either Party:

(a) Techsmax may terminate a Subscription Service at its discretion by providing 30 days written notice to the Client. The Client will pay for the work which has been done and at the time of termination on a pro-rata basis, and will pay for any outstanding works completed between the provision of the notice to terminate and the cessation of the Subscription Service.

(b) Techsmax may terminate a Subscription Service for any breach by the Client of this Agreement by providing 14 days written notice of the breach to the Client. The Client will not be entitled to a refund or credit for any Subscription Fees already paid, and will pay for any outstanding works at the cessation of the Subscription Service.

(c) The Client may terminate a Subscription Service at any time by providing Techsmax with a written notice. The Client will continue to have access to that Subscription Service through the end of their then current subscription term. The Client will not be entitled to a refund or credit for any Subscription Fees already paid, and will promptly pay any unpaid Subscription Fees due through the end of the subscription term.

4.2.6 This Agreement will automatically terminate when both Parties have performed all of their obligations under the Agreement and all payments have been received.

4.2.7 If this Agreement is terminated, then all the rights and obligations under this Agreement terminate other than the rights and obligations under clauses 2, 5, 6, 7, 9, and the rights of the Parties that accrued on or before that termination.

5. NO SOLICITATION

The Client agrees that, for the duration of the term and 12 months following expiration of the term of all Services or termination of this Agreement, the Client will not directly or indirectly hire or attempt to hire any person who was an employee, independent contractor, or consultant of Techsmax.

6. CONFIDENTIALITY

6.1. Confidential Information

Under this Agreement, “Confidential Information” refers to all information of a Party (“Disclosing Party”) that has been disclosed to the other Party (“Receiving Party”), which is designated in writing as confidential, proprietary, or secret, or under the context of its disclosure ought to reasonably be considered as confidential. Confidential Information includes, but is not limited to, all information concerning a Party’s existing business, business systems, business plans and information systems, trade secrets, prices, and pricing information.

6.2. Use of Confidential Information

6.2.1 Each Party will comply with all laws and regulations that apply to use, transmission, storage, disclosure, or destruction of Confidential Information.

6.2.2 The Receiving Party agrees to hold the Disclosing Party’s Confidential Information in strict confidence and only use such Confidential Information as permitted by or for the purposes of this Agreement.

6.2.3 Each Party agrees to ensure that its employees, agents, representatives, and contractors are advised of the confidential nature of the Confidential Information and are precluded from taking any action prohibited under this Agreement.

6.2.4 Confidential Information will not include information of the Disclosing Party which: (a) is publicly available as of the Effective Date or becomes publicly available thereafter through no fault of the Receiving Party; (b) the Receiving Party rightfully possessed before it received such information from the Disclosing Party; (c) is subsequently furnished to the Receiving Party by a third party without restrictions on disclosure; or (d) is required to be disclosed by law, provided that prior to disclosing any such Confidential Information, the Receiving Party will notify the Disclosing Party to permit the Disclosing Party to seek appropriate protective orders to limit disclosure or use of the Confidential Information.

6.3. Ownership of Confidential Information

Except as explicitly stated in this Agreement, Receiving Party is granted no license or conveyance of Disclosing Party’s Confidential Information or any intellectual property rights therein. Title to the Disclosing Party’s Confidential Information shall remain solely with the Disclosing Party.

7. LIABILITY AND DAMAGES

7.1. Limitation of Liability

7.1.1 Techsmax agrees to take all necessary precautions to prevent injury to any persons or damages to any property during the term of this Agreement. The Client agrees the liability of Techsmax, if any, on any claims for damages arising out of this Agreement shall be limited to direct damages and shall not exceed the amount which has been paid to Techsmax by the Client for the 30 days period preceding the date on which the claim is based.

7.1.2 Techsmax’s obligation to indemnify under this Agreement shall cease 90 days after the earliest to occur of termination or expiry of the Agreement or completion of the Services.

7.2. Indemnity

7.2.1 Notwithstanding anything in this Agreement to the contrary, Techsmax will not be liable to the Client for consequential damages, and Techsmax will have no liability whatsoever resulting from any legal claims against the Client.

7.2.2 In no event shall Techsmax be liable for any direct or indirect loss or consequential loss suffered by the Client or its officers, directors, employees, and agents, or any other third party arising out of or in connection with this Agreement regardless of the form of action, whether arising under contract, in tort or otherwise.

7.2.3 The Client must indemnify and keep Techsmax harmless in respect of any losses, costs, claims, demands and expenses (including legal fees on a solicitor/client basis) of whatever nature arising as a result of a breach of this Agreement by the Client or its officers, directors, employees, and agents, including but not limited to liabilities that may pass through from a third-party.

8. FORCE MAJEURE

8.1 Techsmax shall not be considered in breach of this Agreement nor liable for any delay, failure in performance, or interruption of service if its obligations are prevented by an event of Force Majeure, including but not limited to act of God, acts of government, floods, fires, earthquakes, tornado, civil unrest, acts of terror, labour disputes, computer, telecommunications, internet service provider or hosting facility failures, delays involving hardware, software, or power systems, malicious code, denial of service threats, or inability to obtain energy.

8.2 Techsmax prevented from carrying out its obligations under this Agreement must give notice to the Client in writing of an event of Force Majeure upon it being foreseen by or becoming known to Techsmax.

8.3 If Techsmax is prevented from executing the works by the event of Force Majeure, it shall be relieved of its obligations to provide the work but shall endeavour to continue the works under the Agreement so far as reasonably practicable. If and to the extent that Techsmax incurs additional cost in so doing, it shall be entitled to the amount of such cost (“Cost” being defined as having no profit component), provided that Techsmax have taken reasonable steps to mitigate the Cost.

8.4 If Techsmax suffers a delay as a result of the event of Force Majeure, it shall be entitled to an extension for the time for completion.

9. GENERAL PROVISIONS

9.1. Entire Agreement

9.1.1 This Agreement constitutes the entire agreement between the Parties and supersedes all prior negotiations, understandings, or communications between the parties.

9.1.2 No modification, amendment, or waiver of any provision of this Agreement will be effective unless provided in writing by Techsmax.

9.1.3 In the event of any contradictory provisions between this Agreement and any attachments, schedules, purchase orders or other documents, the terms set forth in the body of this Agreement shall prevail.

9.2. Governing Law

This document is governed by the laws of Victoria, Australia and the parties submit to the non-exclusive jurisdiction of Victorian courts in respect of all matters relating to this Agreement.

9.3. Assignment

This Agreement and any rights and licenses granted to the Client cannot be assigned, transferred, or novated without prior written consent from Techsmax.

9.4. Severability

If any provision of this Agreement is declared or found to be prohibited, unenforceable or void, the remainder of this Agreement will remain effective and binding upon the Parties to the extent permitted by law.

9.5. Revision

9.5.1 Techsmax reserves the right, at its sole discretion, to modify or replace any of the terms or conditions of this Agreement, or incorporate additional terms at any time. It is the Client’s responsibility to check this Agreement periodically for changes. The Client’s continued use of the Services following the posting of any changes to this Agreement constitutes acceptance of those changes.

9.5.2 The revised terms will be effective as of the time it is posted, but will not apply retrospectively. Any Dispute (as defined in clause 3.2) that arose before the changes will be governed by the terms in place when the Dispute arose.

9.6. Waiver

9.6.1 No delay or failure by either Party to exercise any right or power under this Agreement will constitute a waiver of that right.

9.6.2 No change, waiver, or discharge will be valid unless in writing and signed by an authorised representative of both Parties.

9.6.3 A waiver by any Party of any of the covenants, conditions, or agreements to be performed by the other Party will not be construed to be a waiver of any succeeding.

9.7. Counterparts

This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, and such counterparts will together constitute one instrument.

9.8. Interpretation

9.8.1 Headings and bold type are for convenience only and do not affect the interpretation of this Agreement.

9.8.2 The singular includes the plural, and the plural includes the singular.

9.8.3 Words of any gender include all genders.

9.8.4 Other parts of speech and grammatical forms of a word or phrase defined in this Agreement have a corresponding meaning.

9.8.5 A reference to a clause, party, schedule, attachment, or exhibit is a reference to a clause of, and a party, schedule, attachment, or exhibit to, this Agreement.

9.8.6 A reference to a document includes all amendments or supplements to, or replacements or novation of, that document.

9.8.7 A reference to a party includes that party’s successors and permitted assignees.

9.8.8 No provision of this Agreement will be construed adversely to a party because that Party was responsible for the preparation of this Agreement or that provision.

9.8.9 Specifying anything in this Agreement after the words ‘include’ or ‘for example’ or similar expressions does not limit what else is included.