Terms and Conditions: Version 1.1
Definitions & Interpretation
- “Australian Consumer Law” means:
- As the context requires, the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) or as adopted in Western Australia by the Fair Trading Act 2010 (WA).
- “Client” means:
- References to “you”, “your”, “client”, “customer”, and similar words in these Terms refer to the individual or entity registering for any Services and agreeing to be bound by these Terms. If you are entering into these Terms on behalf of an entity, you represent and warrant that you have all necessary rights, authority and consent to bind such entity to these Terms;
- where a Proposal has been accepted in writing, the person or entity named as the Client in the written acceptance; or
- where a Proposal has been impliedly accepted, the person or entity to whom the Proposal was addressed; or
- where a product and/or service(s) have been ordered for use, the person or entity who placed the order.
- “Hatchet” means:
- Hatchet is a registered business name of Hatchet Pty Ltd (ACN: 51 607 716 718) and shall be known in these Terms as “we”, “our”, “us”, or “Hatchet”.
- “Proposal” means:
- Any document or documents provided by Hatchet to the Client in respect of proposed work.
- “Work Instruction” means:
- Any instruction provided to Hatchet in writing by the Client in respect of the Work or the proposed Work.
- “Work” means any work undertaken by Hatchet in relation to:
- Web hosting;
- Custom software;
- Database development;
- App development; and
- website design.
- “Australian Consumer Law” means:
- These terms and conditions govern the rights and duties between us and you.
- By using these services, you agree to be bound by the Terms and Conditions; you agree to indemnify and hold harmless Hatchet from any loss, liability, claim, damage and expense arising from or related to your content or use of any services provided by Hatchet. If you are not satisfied with these Terms and Conditions then you must discontinue the use of our service(s).
- No advice or information, whether oral or written, obtained by you from Hatchet, its employees or associates or through their respective websites shall create any warranty not expressly stated in these Terms and Conditions.
- The parties each individually represent and warrant that they each have full power and authority to enter into this Agreement and to perform all obligations hereunder without violating the legal or equitable rights of any third party.
- The parties each individually represent and warrant that each has full power and authority to enter into this Agreement and to perform all of their obligations hereunder without violating the legal or equitable rights of any third party.
- If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable under any present or future law, then that provision will be fully severable. In such instance, this Agreement will be construed and enforced as if the illegal, invalid, or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions of this Agreement will remain in full force and effect.
Terms of Agreement
- Where Hatchet has given you a proposal, that proposal, together with the Terms and Conditions, shall constitute the entire agreement between Hatchet and the client in respect of such work or proposed work and shall supersede any prior written or oral agreement, arrangement or understanding between the parties relating to such work or proposed work.
- In the event of any inconsistency between these Terms and Conditions and the relevant proposal, the terms of the proposal shall prevail to the extent of the inconsistency.
- In the event of any inconsistency between these Terms and Conditions and any terms of trade or ordering customarily adopted by the Client (including the terms of any order form used by the client), these Terms and Conditions shall prevail.
- Unless otherwise stated in writing, prices for work or proposed work contained in any proposal or work instructions are exclusive of GST.
- Prices for work or proposed work contained in any proposal or work instructions shall be considered to be an estimate only unless they are stated to be a quotation.
- Prices contained in quotations are valid for 30 days; however, Hatchet may amend a quotation prior to acceptance in the event of any increase in the cost of relevant products or services supplied by third parties.
- Where the Client gives Hatchet work instructions in writing that vary the agreed work, Hatchet will use its best endeavours to produce a work product in accordance with that instruction.
- Hatchet shall not be responsible for any changes required by the client to such work product and such changes shall be deemed to be variations and chargeable as such.
- Any materials, services, or other charges we have properly committed ourselves to purchase for your account (either specifically or as part of a plan such as modules, photography and/or external services) shall be paid for by you in accordance with the provisions of this Agreement. We agree to use all reasonable efforts to minimise such liabilities immediately upon written notification from you. We will provide written proof, upon request of the client, that any such materials and services could not be reasonably cancelled.
Invoicing and Payment
- Unless otherwise agreed in writing in a relevant proposal, Hatchet may issue invoices to the client:
- upon the completion of a relevant item of work product; and/or
- upon the completion of a milestone outlined.
- All invoices issued by Hatchet are payable within 14 days of the invoice or as indicated by the Due Date specified at the top of the invoice. If payment is not received within this timeframe, Hatchet can and will issue reminder notices by way of email communication to you.
- Where an invoiced amount is not paid on or before its due date for payment, a 10% per annum interest charge will apply and will accrue daily on the overdue amount until the outstanding amount is paid.
- Hatchet may, on its own discretion, waive any interest charge on an overdue invoice.
- Once invoices are 7 or more days overdue, Hatchet may suspend or take action to redact any hosting, domain, email or other services related to your customer account without notice.
- Once invoices are 30 or more days overdue, Hatchet may pass on the details of the unpaid invoices to our debt collectors, who may act on our behalf. The invoice details passed on will be amended to include any relevant debt collector fees as determined by our debt collection agency. These fees will ultimately be added to the outstanding amount on your account and be requested in full by our debt collector.
- Failure to pay our debt collection agency may result in your credit rating being affected. Hatchet Pty Ltd will not be held liable for any implications that this credit rating has on your business or person.
- Unless otherwise agreed in writing in a relevant proposal, Hatchet may issue invoices to the client:
Service and Marketing Emails
- The Client agrees to receive Service, Marketing and Promotional emails from Hatchet to the email address registered to their account.
- Emails from Hatchet to the Client in regard to a Service, such as invoicing and other notices, will be sent from firstname.lastname@example.org.
- The Client acknowledges that:
- any email from Hatchet is taken to have been sent by Hatchet and delivered to the Client when that email is received in the Client’s inbox, junk folder or another like folder; and
- any email sent by Hatchet is taken to be read by the Client once it has been received, even where the client fails to do so.
- The Client may opt out of marketing and promotional emails, at the time of receiving the email, via the footer link within the email campaign.
Work Performed and Service(s) Provided
- Delivery of work product shall be made in accordance with any relevant provision in any proposal or work instruction or, if there is no such provision, within a reasonable time.
- Hatchet shall not be responsible for delivery delays resulting from variations or payment delays by the client, including delays by the Client in response to communications sent by Hatchet for further information or material related to the product.
- Hatchet will endeavour to provide continuous availability of all services to the client. Due to the nature of the service we provide, it is not possible to guarantee; and we, therefore, do not warrant; that the service will be provided free of interruption or free from intrusion or hacking by external parties. Hatchet will not be liable for any service interruptions or downtime.
- Hatchet reserves the right to take action, including legal action or suspension of or termination of a service, against a client who interferes with the rights of another user online or attempts to interfere with the smooth running of Hatchet’s services. We reserve the right to discontinue or terminate any account or service where the use of service is deemed to be an abuse directed to any person, and we will charge the customer for costs incurred by us as a result of having to take action to respond to or the consequence of any such abuse.
- Hatchet does not tolerate Spam. If you use spam, unsolicited emails or message board posting, or any other similar method to promote your site, then your access to our services may be immediately suspended or, in the case of repeat offenders, terminated.
- Scheduled maintenance will be performed at times that are deemed suitable by Hatchet or Hatchet’s service provider(s) which has the least noticeable impact on the Client, and should it require the service(s) to be offline for greater than thirty (30) minutes, Hatchet will post details of the scheduled maintenance at least 24 hours prior.
- Unscheduled maintenance will be performed at times by Hatchet or Hatchet’s service provider(s), and should the Services be offline for greater than thirty (30) minutes, Hatchet will post details of the maintenance and any updates until it has been completed.
Limitation of Liability
- Hatchet shall not be liable to the client for harm caused by or related to the client’s service or inability to utilise the service unless proven to have been caused by gross negligence or wilful misconduct.
- Neither Party shall be liable to the other for lost profits, whether it be a direct or indirect loss, or for damages of any kind, including special, incidental, consequential or punitive, whether or not the loss arising from the breach or any work completed was known or foreseeable at the time the Agreement is executed.
- Notwithstanding anything else in these Terms and Conditions, the maximum aggregate liability of Hatchet, any of its employees, agents or affiliates, under any theory of law shall not exceed a payment in excess of the amount paid by the Customer for the Service in question for the six months prior to the occurrence of the event(s) giving rise to the claim.
- Any claims by the client relating to the quality, quantity or any other aspect of any work product must (Subject to any contrary right given to a consumer by the Australian Consumer Law) be made in writing within 7 days of collection of the work product by, or actual delivery of the work product to the client.
- Any claims by the client relating to the amount of any invoice or part thereof must be made in writing within 7 days of the invoice date.
- Hatchet may, at its absolute discretion, refuse to set up, print or deliver any matter which, in its opinion, may expose Hatchet or any of its employees or agents to any action, claim, demand, or proceeding whatsoever in correction with or arising from any infringement of the intellectual rights of any third party.
- The client warrants that no text or imagery supplied by the client to Hatchet for the purposes of work or proposed work will breach any law (written or unwritten) or infringe any intellectual property or rights of any third party or result in Hatchet otherwise becoming liable to any third party.
- Where the client has informed Hatchet of the intended use of a work product, the client warrants the accuracy of such information.
- Hatchet will not, in the creation of a work product for the client, knowingly infringe any other person’s intellectual property rights. However, Hatchet does not warrant that anything that it utilises in the creation or production of work product for a client, or embodied in the work product created or produced for a client, does not infringe any other person’s intellectual property rights.
- The visual elements of the final work product will be transferred or otherwise assigned to the Client upon the complete payment of the Work.
- Where more than one concept, design or other option has been presented to the client, the options which are not selected by the client as the final work product shall remain the property of Hatchet unless otherwise agreed in writing. Fees may apply to the granting of further usage rights in respect of such concepts and designs.
- If Work involves photographs being created by Hatchet on behalf of the client, then the client will own full usage rights for such photographs upon receipt of payment in full for the work product in which the photographs were used. If Work involves photographs being commissioned from third parties, then usage rights for such photographs shall be governed by the terms under which those photographs are supplied by third parties.
- Notwithstanding any other provision in these Terms & Conditions, Author Materials used by Hatchet or its suppliers in the creation of work produced shall remain the sole and exclusive property of Hatchet or the relevant supplier(s).
- Unless otherwise agreed in writing, the client acknowledges Hatchet’s moral rights and grants Hatchet standard authorship acknowledgement and permission to use its work product to promote its services. In relation to digital presentations and web-based systems or sites designed or developed by Hatchet, the authorship acknowledgement includes hyperlink(s) to Hatchet’s designated website.
- All materials (logos, images, text or other material) supplied by the client must be of quality and to the specifications required by Hatchet. Additional costs apply for any additional Work required to be performed to attain such quality or specifications.
- Hatchet and the client must agree on deadlines for the delivery of materials to be supplied by the client. The client will be responsible for all costs incurred by Hatchet in the loss of production time due to such deadlines not being met by the client or due to the materials supplied not being of quality or to the specifications required by Hatchet.
- The client warrants that any information supplied for the purpose of creating an account with Hatchet, including but not limited to first name, last name, address, telephone number and email address, is true and correct and will be kept up to date with Hatchet.
- The client warrants that they will keep any passwords or sensitive information used with the Service in a secure location. There must be a reasonable basis for the client to consider the chosen location to be secure.
- The client warrants that they own and will continue to own the copyright for data stored on Hatchet’s servers or that they are licensed and will continue to be licensed to use that data.
- The client warrants that at the time of entering into any agreement related to these Terms and Conditions, they are not relying on any representation made by Hatchet which has not been expressly stated in this agreement, or on any descriptions or specifications contained in any other document produced by Hatchet.
- The client warrants that all due care has been taken to ensure data integrity on Hatchet’s servers. This includes an undertaking that the client will conduct computer virus scanning and other tests as necessary to ensure that the data uploaded by the client onto or downloaded by the client from the server does not contain any computer virus and will not in any way corrupt the data or systems of any person.
- You are responsible for any misuse of our services, even, for example, if the misuse was committed by a friend, family member, guest, employee or client with access to your account or website. You are also responsible for any such misuse regardless of whether it was with or without your consent. Therefore, you must take steps to ensure that others do not gain unauthorised access to your account or website.
- The client agrees that they are solely responsible for dealing with anyone who accesses and/or modifies their data and that the Client will not refer complaints or inquiries in relation to such access or modification of data to Hatchet.
- Hatchet does not warrant that the Services will not be subjected to external hacking attempts, viruses, worms, denial of service attacks, or other persons gaining unauthorised access to the Service or internal Hatchet systems.
- If you are aware of any violations of the terms and agreements, please report them to: email@example.com
- Neither party shall be held liable for a force majeure event.
- If a party believes that a force majeure event has occurred, such party shall immediately inform the other party of the start and end of the force majeure event.
Term and Termination
- The Terms and Conditions and/or any related agreement shall become effective as of the approval date and shall continue until terminated by either party upon not less than 30 days’ notice in writing given by either party to the other.
- Hatchet reserves the right to refuse new orders, renewals or service to anyone at our sole discretion without prior notice.
- Either party to this Agreement may terminate the Agreement if the other party defaults in the performance of any of its material duties and obligations and the default is not remedied within thirty (30) days of the receipt of notice of said default or if the default is not reasonably remedied within the said period of time unless the defaulting party commences remediation within the said period of time and diligently proceeds to remedy the default.
- Either party may immediately terminate this Agreement by giving written notice to the other party if the other party is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction, if the other party makes an assignment for the benefit of creditors if a trustee or similar agent is appointed with respect to any property or business of the other party, or in the case of the Client if the Client materially breaches its obligations to make payments pursuant to this Agreement.
- Hatchet may suspend or terminate Services if the Client is found to be in breach of any formal policy, including but not limited to these Terms and Conditions.
- Hatchet may suspend or terminate Services if the Client has outstanding fees that are more than seven (7) days past the due date.
- Hatchet may decide at its sole discretion to advise theClient that their service will be terminated by giving seven (7) days written notice. In this circumstance, Hatchet will refund any pre-paid fees for Services on the account.
- Hatchet may suspend or terminate Services if a Client’s account is closed for any reason, and the Client agrees that he or she must pay all outstanding charges by the due dates.
- Hatchet is under no obligation to provide the Client with a copy of the data stored on our servers if Hatchet has suspended or terminated access to the service for any breach of the terms of these Terms and Conditions, or the proposal. In this circumstance, a copy of the data may be provided to the Client for an additional fee.
- The Client can request cancellation of any Service with us for any reason by contacting Hatchet. The Client acknowledges that only the designated primary contact for the Client may cancel an account.
- Any pre-paid fees for Services past the current billing month will have a credit applied to their account, except for Domain name purchases.
- The Client agrees to pay any and all outstanding fees upon cancellation of their Services.
- Cancellation requests must be received (3) days prior to the renewal date. An administration charge may be applied for requests passed this period.
- Hatchet will backup and archive the Client’s data in relation to any products and or service(s) that are contained within Hatchet’s infrastructure or ownership on a regular basis for the purpose of disaster recovery.
- Hatchet will store backups for 14 calendar days.
- In the event of hard disk failure or data corruption, Hatchet will restore data from the last known verified archive.
- The Customer should always maintain a recent copy of all data at all times, as Hatchet will not be liable for incomplete, out-of-date, corrupt or otherwise incomplete data recovered from our backups and archives.
- Should the Customer require Hatchet to restore or supply a backup of the account data where no fault was caused by Hatchet, a restoration fee will be payable prior to restoration.
- You understand that the email services provided with your hosting account are not to be used as a long-term archive. You must download all email collected by your account to your own computer as it arrives; you must not keep emails on our servers for more than 60 days.
- Hatchet may revise these terms and conditions from time to time by posting a new version of this document on our website. Each account is bound by the version of this document that was active as of the date of the initial order or, if the account has been renewed, the version that was active as of the date of the latest renewal, even if the renewal was automated. By renewing or agreeing to have your account renewed, you affirm your acceptance of these terms.
- In exceptional circumstances, Hatchet may be required to amend the Terms of Service and enforce the amendments immediately. If this has to occur, Hatchet will advise you by email as soon as is reasonably practicable, and the circumstances explained.
- This agreement is governed by the laws of Western Australia. The client submits to the nonexclusive jurisdiction of the courts of Western Australia and any courts which may hear appeals from those courts in respect of any proceedings in connection with this agreement.