Mindflow - Business Web

  

Terms and Conditions of Trade

Mindflow (Australia) ABN: 29727467284

PREAMBLE
1. Preamble
1.1 All Goods and/or Services of CA De David T/A Mindflow (Australia), whether gratuitous or not, are supplied subject to these
Conditions and:
(a) The provisions of Part I shall apply to the provision of all and any Goods and/or Services.
(b) The provisions of Part II shall only apply to the provision of Codes Hosting Services.
(c) The provisions of Part III shall only apply to the provision of Web Development Services.
PART I - GENERAL CLAUSES
2. Definitions
2.1 “Seller” shall mean CA De David T/A Mindflow its successors and assigns or any person acting on behalf of and
with the authority of CA De David T/A Mindflow.
2.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described
on any quotation, work authorisation or other form as provided by the Seller to the Client.
2.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a
principal debtor basis.
2.4 “Materials” shall mean all data, graphics, pictures, trade marks, software and other materials to be incorporated in
the Clients’ Codes (including, but not limited to), user data created by the operation of the Clients’ Codes.
2.5 “Goods” shall mean Goods supplied by the Seller to the Client (and where the context so permits shall include any
supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or
any other forms as provided by the Seller to the Client
2.6 “Services” shall mean all services supplied by the Seller to the Client and includes any advice or recommendations
(and where the context so permits shall include any supply of Goods as defined above).
2.7 “Price” shall mean the price payable for the Goods as agreed between the Seller and the Client in accordance with
clause 4 of this contract.
2.8 “Prohibited Content” means any content on a Codes that:
(a) is, or could reasonably be considered to be, in breach of the Broadcast Services Amendment (Online Service)
Act 1999 (Cth); the Trade Practices Act 1974 (Cth); or any other applicable law or applicable industry code; or
(b) contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be
considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
(c) is, or could reasonably be considered to be, in breach of any person’s intellectual property rights.
2.9 “Codes” means a location which is accessible on the Internet through the World Wide Web and which provides
multimedia content via a graphical User Interface.
3. Acceptance
3.1 Any instructions received by the Seller from the Client for the supply of Goods and/or the Client’s acceptance of
Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all
payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be
amended with the written consent of the Seller.
3.4 The Client undertakes to give the Seller at least fourteen (14) days notice of any change in the Client’s name,
address and/or any other change in the Client’s details.
4. Price And Payment
4.1 At the Seller’s sole discretion the Price shall be either;
(a) as indicated on invoices provided by the Seller to the Client in respect of Goods supplied; or
(b) the Seller’s quoted Price (subject to clause 4.2) which shall be binding upon the Seller provided that the Client
shall accept the Seller’s quotation in writing within thirty (30) days.
4.2 The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation.
4.3 At the Seller’s sole discretion a deposit may be required.
4.4 At the Seller’s sole discretion payment for approved Clients shall be made by instalments in accordance with the
Seller’s payment schedule.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no
time is stated then payment shall be due fourteen (14) days following the date of the invoice.
4.6 Payment will be made by cheque, or by bank cheque, or by direct credit, or by credit card, or by any other method as
agreed to between the Client and the Seller.
4.7 GST and other taxes and duties that may be applicable may be added to the Price.
5. Delivery Of Goods
5.1 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.2 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or
any of them) promptly or at all.


6. Risk
6.1 If the Seller retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the
Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and
conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the
need for any person dealing with the Seller to make further enquiries.
7. Title
7.1 The Seller and Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid the Seller all amounts owing for the particular Goods, and
(b) the Client has met all other obligations due by the Client to the Seller in respect of all contracts between the
Seller and the Client.
7.2 Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of
payment has been honoured, cleared or recognised and until then the Seller’s ownership or rights in respect of the
Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until the Seller shall have received
payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from the Seller to the Client the Seller may give notice in
writing to the Client to return the Goods or any of them to the Seller. Upon such notice the rights of the Client
to obtain ownership or any other interest in the Goods shall cease; and
(c) the Seller shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into
land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where
the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as the Seller has received payment in full for the
Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for the Seller;
and
(f) the Client shall not deal with the money of the Seller in any way which may be adverse to the Seller; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while
they remain the property of the Seller; and
(h) the Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the
Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other
products, the parties agree that the Seller will be the owner of the end products.
8. Client’s Disclaimer
8.1 The Client hereby disclaims any right to rescind, or cancel any contract with the Seller or to sue for damages or to
claim restitution arising out of any misrepresentation made to the Client by the Seller and the Client acknowledges
that the Goods are bought relying solely upon the Client’s skill and judgement.
9. Defects and Returns
9.1 The Client shall inspect the Goods on delivery and shall within thirty (30) days of delivery (time being of the
essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the
description or quote. The Client shall afford the Seller an opportunity to inspect the Goods within a reasonable time
following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with
these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which
the Seller has agreed in writing that the Client is entitled to reject, the Seller’s liability is limited to either (at the
Seller’s discretion) replacing the Goods, repairing the Goods, updating the Goods or maintaining the Goods.
10. Warranty
10.1 To the extent permitted by statute, no warranty is given by the Seller as to the quality or suitability of the Goods for
any purpose and any implied warranty, is expressly excluded. The Seller shall not be responsible for any loss or
damage to the Goods, or caused by the Goods, or any part thereof however arising.
11. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
11.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the
Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia,
except to the extent permitted by those Acts where applicable.
12. Intellectual Property
12.1 Subject to Clause 12.2 the Intellectual Property Rights in the Codes will be and are hereby vested in the Client.
12.2 Notwithstanding anything herein, the Intellectual Property Rights in the Seller Materials and the Seller Routines do
not vest in the Client and there is no assignment of the Intellectual Property Rights in the Seller Materials or the
Seller Routines to the Client. The Seller hereby grants to the Client an irrevocable, non-exclusive and nonCA
De David T/A Mindflow – Terms & Conditions of Trade

transferable licence to use and reproduce the Seller Materials and Seller Routines for the purposes of this
agreement only.
13. Default & Consequences of Default
13.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment
at a rate of two and one half percent (2.5%) per calendar month and such interest shall compound monthly at such
a rate after as well as before any judgement.
13.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Seller from and against all
costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own
client basis and the Seller’s collection agency costs.
13.3 Without prejudice to any other remedies the Seller may have, if at any time the Client is in breach of any obligation
(including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Client and
any of its other obligations under the terms and conditions. The Seller will not be liable to the Client for any loss or
damage the Client suffers because the Seller has exercised its rights under this clause.
13.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten
percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200)) shall be levied for
administration fees which sum shall become immediately due and payable.
13.5 Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any
order of the Client which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for
payment, become immediately payable in the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Client will be unable to meet
its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement
with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client
or any asset of the Client.
14. Security And Charge
14.1 Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being
charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts
and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor
acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a
caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder
have been met.
(b) should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the
Client and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements
including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Seller or the
Seller’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to
give effect to the provisions of this clause 14.1.
15. Cancellation
15.1 The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any
time before the Goods are delivered by giving written notice to the Client. On giving such notice the Seller shall
repay to the Client any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage
whatever arising from such cancellation.
15.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by the Seller
(including, but not limited to, any loss of profits) up to the time of cancellation.
16. Privacy Act 1988
16.1 The Client and/or the Guarantor/s agree for the Seller to obtain from a credit reporting agency a credit report
containing personal credit information about the Client and Guarantor/s in relation to credit provided by the Seller.
16.2 The Client and/or the Guarantor/s agree that the Seller may exchange information about the Client and the
Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit
report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in
default with other credit providers; and/or
(d) to assess the credit worthiness of Client and/or Guarantor/s.
16.3 The Client consents to the Seller being given a consumer credit report to collect overdue payment on commercial
credit (Section 18K(1)(h) Privacy Act 1988).


16.4 The Client agrees that personal credit information provided may be used and retained by the Seller for the following
purposes and for other purposes as shall be agreed between the Client and Seller or required by law from time to
time:
(a) provision of Goods; and/or
(b) marketing of Goods by the Seller, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods;
and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s
account in relation to the Goods.
16.5 The Seller may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the
Client.
17. General
17.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence,
legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria and are
subject to the jurisdiction of the courts of Victoria.
17.3 The Seller shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of
profit) suffered by the Client arising out of a breach by the Seller of these terms and conditions.
17.4 In the event of any breach of this contract by the Seller the remedies of the Client shall be limited to damages
which under no circumstances shall exceed the Price of the Goods.
17.5 The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to
the Client by the Seller.
17.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Seller reserves the right to review these terms and conditions at any time. If, following any such review, there
is to be any change to these terms and conditions, then that change will take effect from the date on which the
Seller notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,
fire, flood, drought, storm or other event beyond the reasonable control of either party.
17.9 The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of
that provision, nor shall it affect the Seller’s right to subsequently enforce that provision.
PART II: Codes HOSTING
18. What The Seller Will Do
18.1 The Seller will, at its sole cost and expense:
(a) install the Clients Materials on the Seller’s Web Server;
(b) host the Clients Codes on the Seller’s Web Server;
(c) ensure that from the Live Date:
(i) sufficient capacity is maintained on the Seller’s Web Server to enable Users access to the Clients Web
Site in a timely manner;
(ii) the Clients Codes is accessible to Users in accordance with the Service Levels (subject to reasonable
downtime for server maintenance which has been notified to the Clients prior to the commencement of
the downtime or Codes Maintenance in accordance with Clause 18.1(d));
(d) provide the Clients with reasonable access to the Clients Codes to perform maintenance services.
19. What The Seller Will Not Do
19.1 The Seller will not:
(a) alter or amend, or permit any person to alter or amend the Clients’ Codes without the written consent of the
Clients;
(b) post or display on the Clients’ Codes any advertisement, sponsorship or promotion without the written
consent of the Clients;
(c) use any User Data for marketing, referral or other purposes except as expressly authorised by this agreement;
(d) sub-licence, rent, time-share, lease, lend or grant any rights to use the Clients’ Codes; or
(e) assign, transfer or authorise anyone else to exercise the rights in any licence granted pursuant to this
agreement.
20. What The Clients Will Do
20.1 The Clients will, at its sole cost and expense:
(a) develop and maintain the Clients’ Codes;
(b) provide the Clients’ Materials to the Seller, in such form as reasonably prescribed by the Seller from time to
time, and hereby grants the Seller a non-exclusive, world wide, irrevocable licence to use the Clients’
Materials for the purposes of hosting the Clients’ Codes;
(c) do all things reasonably necessary to enable the Seller to host the Clients’ Codes on the Seller Web Server;


(d) ensure that the Clients’ Materials supplied to the Seller do not contain:
(i) Prohibited Content;
(ii) a Link to any Codes that contains Prohibited Content; or
(iii) any viruses, trojan horses, worms, time bombs or any other software program or routine designed for or
capable of interfering with the operation of the Hosting Services.
21. What The Clients Will Not Do
21.1 The Clients will not do anything that prevents or hinders the Seller from providing hosting services to any other
person.
PART III: DEVELOPMENT OF THE Codes
22. What The Seller Will Do
22.1 Upon approval of the Specifications and Quotation in accordance with this agreement, the Seller will:
(a) use its best endeavours to develop the Codes in accordance with the Development Stages; and
(b) to the extent specified in the Specifications, negotiate and procure Third Party Agreements on behalf of the
Clients.
23. What The Clients Will Do
23.1 The Clients will, in addition to any other obligations expressed in this agreement, have the following responsibilities:
(a) provision of all data to be incorporated into the Codes;
(b) provision of logos, designs, graphic and related materials to be incorporated into the Codes; and
(c) provision of any other information, ideas or suggestions which are to be expressly considered by the Seller in
developing the Codes.
23.2 The Clients will ensure that the Seller is given such information and assistance as the Seller reasonably requires to
enable it to construct and maintain the Codes.
23.3 The Seller will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the Web
Site which is attributable to:
(a) incorrect information provided by the Clients, either pursuant to this clause or otherwise; or
(b) failure by the Clients to provide relevant information, either pursuant to this clause or otherwise; or
(c) any 3rd party Materials used by the Seller in creation of the Codes.
24. Maintenance
24.1 Subject to Clause 24.2, the Seller will provide the Maintenance Services in accordance with the maintenance terms
set out in the Seller’s maintenance schedule.
24.2 The Clients will procure all necessary authorisations, licences and consents to enable the Seller to have access to
the Codes in order to provide the Maintenance Services.