ABN: 28 102 407 732
1.1 "2excel" means the 2excel Web Solutions business, its executors, agents, employees, or assigns.
1.2 "Quotation" means the quotation attached to these terms. To the extent of any inconsistency between these terms and the Quotation, the Quotation prevails.
1.3 "Services" means the services specified in the Quotation and/or any other services agreed to in writing by 2excel.
1.4 "Client" means the person/entity that requests and/or receives the Services provided.
1.5 "Fee" means the fee(s) specified in the Quotation and/or otherwise agreed to by 2excel in writing, (including a fee based on hourly rates), for the Services.
1.6 "Contract" means the contract between 2excel and the Client for the provision of Services, which among other things incorporates these terms.
2.1 These terms prevail over any terms issued by the Client unless otherwise agreed by 2excel in writing. These terms may only be varied with the written consent of 2excel.
3. 2excel's Responsibilities and Obligations
3.1 2excel agrees to perform the Services required by the Client with due care, skill, and diligence;
3.2 2excel agrees to endeavour to perform the Services in a timely manner, as agreed, and in accordance with the requirements of the Client, to the extent that it is within 2excel’s reasonable control to do so;
3.3 2excel gives no warranty as to the efficacy or expediency of the Services.
4. Client's Responsibilities and Obligations
4.1 The Client agrees to;
4.1.1 provide 2excel with all relevant information and documents relating to the Client’s requirements;
4.1.2 promptly and satisfactorily answer all reasonable enquiries and where possible, provide any information reasonably requested by 2excel;
4.1.3 take all reasonable steps to avoid doing or omitting anything which may hinder/delay 2excel in performing the Services;
4.1.4 advise 2excel in writing of any material fact that may affect the performance of the Services;
4.1.5 pay for all fees and charges in connection with the performance of the Services;
4.1.6 discharge its obligations under the Contract reasonably and in good faith;
4.1.7 acknowledge that the Services performed by 2excel are opinion based and 2excel gives no warranty for the efficacy or expediency of the Services; and
4.1.8 Accepts 2excel's right to sub-contract the whole or any part of the Services;
5. No Warranty
5.1 Except as provided here or required by mandatory operation of law, 2excel makes no warranty whether express or implied in relation to the performance of the Services.
5.2 2excel gives no warranty for the efficacy or expediency of the Services. The Services represent the professional opinion of 2excel and accordingly, other suitably qualified/accredited professionals may differ in their opinion.
5.3 All information produced from the Services, (as contained in the report or other similar product), is based entirely upon the information provided by the Client. 2excel is not responsible for verifying that information. Accordingly, 2excel gives no warranty in relation to the stated facts provided by the Client.
6. Payment of Fee and Expenses
6.1 The Client must pay 2excel the Fee specified in the Contract for the performance of the Services plus related disbursements at the times specified in the Contract. If no fee or basis for calculating the Fee has been agreed, then 2excel shall be paid a reasonable fee, taking into consideration 2excel's hourly rate as at the time the Services are performed.
6.2 The Client must pay invoices issued by 2excel for the Services performed, within thirty (30) days of receiving the said invoices, unless otherwise agreed in writing. 2excel may halt the performance of the Services until payment of all outstanding invoices has been received by 2excel.
6.3 2excel may withhold any information, results or reports arising from the performance of the Services, until payment of the Fee has been received by 2excel.
6.4 The Fee is inclusive of Goods and Services Tax.
6.5 At any time, 2excel may require payment in advance for any part (or all) of the Fee.
6.6 All subscription based Services, require that payment is made in advance prior to the commencement of agreed Services, and you will continue to be charged for said Services until it is terminated by you by providing 30 days written notice prior to the subscription roll-over or anniversary date.
7.1 The Client may request a variation to the scope or timing of Services by notice in writing to 2excel. 2excel shall endeavour to comply with such request (any acceptance of the variation by 2excel must be made in writing) provided that the Fee shall be reasonably increased in respect of any variation resulting in increased costs to 2excel.
7.2 2excel may request a variation to the scope or timing of the Services by notice in writing to the Client. Any such variation request shall be negotiated in good faith between the parties.
8.1 Where legislation implies any term, condition or warranty in the Contract, which cannot be excluded, restricted or modified; such term condition or warranty shall be deemed to be included in the Contract provided that 2excel’s liability for breach of such term condition or warranty is, at the option of 2excel, restricted to:
8.1.1 the supply of part or all of the Services again; or
8.1.2 the reasonable cost of supplying part or all of the Services again.
8.2 Without limiting the above provisions and subject to the mandatory operation of law; under no circumstances will 2excel's liability under the Contract exceed the Fee or $6,000 whichever is the lesser amount.
8.3 Except where required by mandatory operation of law, 2excel shall not be liable to the Client for any personal injury, indirect, special or consequential loss or damage (including without limitation loss of profits, loss of opportunity or business interruption) suffered by the Client or any other person, howsoever arising.
8.4 2excel shall not be liable to any person other than the Client in relation to the performance of the Services and the Client shall indemnify and keep indemnified 2excel in respect of any loss or damage suffered by any third party in relation to the performance of the Services, in accordance with these terms.
8.5 2excel shall have no liability to the Client in respect of any claim by the Client or any other person arising out of or in relation to the Services unless the Client (or other person) notifies 2excel, of both their intention and relevant circumstances to claim, within 12 months of the completion of the Services, irrespective of whether the claim arose within that time or not.
8.6 Clause 8.5 above, may be pleaded as an absolute bar to any legal proceedings against 2excel in relation to the Services unless such legal proceedings are issued and Court documents served upon 2excel within such period.
9. Intellectual Property
9.1 2excel has copyright in all documents supplied to the Client in performing the Services and the Client shall not use or deal with such documents, other than for the purpose that the Services are provided. If 2excel terminates the Contract by reason of breach of Contract by the Client, the Client shall immediately return all documents to 2excel and shall cease to have any rights to use or otherwise deal with the documents.
9.2 Unless otherwise agreed in writing by 2excel, all right title and interest in all inventions and/or discoveries made by 2excel in performing the Services shall be owned by 2excel and the Client shall have a non-exclusive free and continuous licence from 2excel to use the same, for the purpose that the Services are provided. If 2excel terminates the Contract by reason of breach of the Contract by the Client, such licence shall automatically cease.
10.1 The parties agree that all information obtained from each other in relation to the Services will be treated as confidential and shall not be disclosed to any third party (unless required by law) without prior written consent of the other party.
11. Events Beyond the Control of 2excel
11.1 If 2excel's performance of the Services is delayed due to an act, omission or event beyond their reasonable control, 2excel will be entitled to a reasonable extension of time for the performance of the Services.
11.2 If 2excel is unable to complete performance of the Services due to an act, omission or event beyond their reasonable control, 2excel may terminate the Contract.
12.1 2excel may by written notice immediately terminate the Contract if:
12.1.1 the Client is in breach of any terms of the Contract;
12.1.2 2excel has served the Client with a written notice specifying the breach and requiring its remedy; and
12.1.3 the breach is not remedied within fourteen (14) days of the said notice.
12.2 Without limiting the foregoing, if the Contract is lawfully determined or terminated for any reason then the Contract shall be deemed to be void from the beginning.
13. Dispute Resolution
13.1 Any dispute or difference whatsoever arising out of or in connection with the Contract shall be submitted to mediation in accordance with, and subject to, acceptable alternative dispute resolution rules and practices.
13.2 Dispute Resolution procedure:
- Any complaint, dispute or difference (“the original complaint”) must be formally brought to 2excel’s notice by letter, fax or email;
- By the client; and,
- The client will then receive a resolution from 2excel within 10 working days from the date on which 2excel formally acknowledged receipt of the original complaint;
- Once a resolution has been submitted by 2excel, the original complaint will be deemed as resolved and finalised;
- A further complaint, dispute or difference can only be raised for a second time with the consent of 2excel; or,
- If the dispute or difference is in relation to a service or product supplied by 2excel after the date of the original complaint;
13.2 Any dispute or difference in which the quantum is less than $6,000 arbitration shall take place using the submission of documents alone unless both parties agree otherwise.
14.1 If any provision of this contract or its application to any party, person, corporation, association or circumstances is or becomes invalid, void, voidable or otherwise unenforceable for any reason whatsoever then:
14.1.1 that provision is severed from this contract or its application must be read down so as not to apply to that party, person, corporation, association or circumstance;
14.1.2 the remainder of this contract or the application of that provision to any other party, person, corporation, association, or circumstance shall not be affected; and
14.1.3 to the extent permissible by law, the parties must act in good faith to reach agreement as to a replacement valid and enforceable provision (and any necessary consequential amendments to the contract) which so far as possible achieves the same purpose, object or effect as the invalid, void, voidable or otherwise unenforceable provision was intended to achieve PROVIDED THAT in so doing the parties must preserve the basic purpose and intent of this contract.
15.1 Quotations are valid for acceptance within 30 days from the date they bear and will lapse if not accepted within such period unless otherwise agreed by 2excel in writing.
15.3 If 2excel started the Services before all parties agreed to the terms of the Contract, then the Contract shall apply retrospectively from when the Services started.
15.4 The Contract is made in and shall be subject to the laws of the State of South Australia.
15.5 The parties to the Contract irrevocably and unconditionally submit exclusively for all purposes of, in relation to or in any way in connection with or arising out of the Contract to the jurisdiction of the Courts of South Australia.
15.6 Any and all actions that may be brought by the parties to the Contract in relation to or in any way in connection with or arising out of the Contract shall be brought in Courts located in the State of South Australia.
15.7 Fair Use Policy
All work provided is in accordance with a fair use policy, intended to ensure:
- the availability of our services to all eligible 2excel customers
- that the unlimited services are not used in an unreasonable manner; and
- we are not responsible for copyright infringements.
When Agreeing to our terms by deposit or signature
I/We hereby agree that 2excel may give to and seek from any credit providers’ name in this credit application and any credit providers that may be named in a credit report issued by a credit reporting agency information regarding my/our credit arrangements.
I/We understand that this information can include any information about my/our credit worthiness, credit standing, credit history, or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act, and where the application relates to a company the aforementioned shall also refer to any directors of the company.
I/we the undersigned persons, in consideration of 2excel (“the Supplier”) having at my/our request agreed to supply the within mentioned applicant (“the Applicant”) with goods and or services and do hereby agree with the Supplier’s Terms and Conditions for of Engagement for Services (“the Terms and Conditions”) on www.2excel.com.au and as provided to me and I confirm and acknowledge as follows:
- I confirm that I have read the Terms and Conditions and that the Supplier has explained it to me and that I was given reasonable time and opportunity to read through and to study the Terms and Conditions.
- I confirm that I was made aware that the Terms and Conditions are available on the Supplier’s website at www.2excel.com.au.au
- I confirm that I was offered a copy of the Terms and Conditions and that I was advised to obtain independent legal advice before signing the Terms and Conditions.
- I confirm and acknowledge that my signature hereunder legally and unconditionally binds me, my assigns and any company or entity I am representing in this and any related transaction between me and the Supplier.
- In any event, I/we hereby guarantee the payment of the above amount credit required only to the Supplier for all such goods and services as may be from time to time supplied by the Supplier to the Applicant and the Supplier may treat me/us as if I/we were the principal debtors.
- This agreement shall be a continuing guarantee to the Supplier for all debts whatsoever and whenever contracted by the Applicant with the Supplier in respect of goods and services to be supplied to the Applicant by the Supplier.
I/we agree the account rendered for goods and services supplied to the Applicant by the Supplier will be paid within 7 days of the date of the statement relating to the delivery or provision of the goods and services.