General Terms Of Trade

1. Definitions

1.1. “Supplier” shall mean Fireworks Fireworks Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Fireworks Fireworks Pty Ltd .
1.2. “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 Supplier to the Client.
1.3. “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4. “Services” shall mean all Services supplied by the Supplier to the Client and includes any advice or recommendations.
1.5. “Price” shall mean the price payable for the Services as agreed between the Supplier and the Client in accordance with clause 3 of this contract.

2. Acceptance

2.1. Any instructions received by the Supplier from the Client for the supply of Services and/or the Client’s acceptance of Services supplied by the Supplier shall constitute acceptance of the terms and conditions contained herein.
2.2. Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3. 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 Supplier.
2.4. The Client shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by the Supplier as a result of the Client’s failure to comply with this clause.
2.5. Services are supplied by the Supplier only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of
the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
2.6. The Client agrees that the Services do not include any services carried out by other professions such as legal or accounting and if other such
professional services are required the Client shall obtain these services at the Client’s own cost.
2.7. The Supplier will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the Services which is attributable to
incorrect information or specifications provided by the Client.

3. Price And Payment

3.1. At the Supplier’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Supplier to the Client in respect of Services supplied; or
(b) the Supplier’s quoted Price (subject to clause 3.2) which shall be binding upon the Supplier provided that the Client shall accept the Supplier’s quotation in writing within thirty (30) days.
3.2. The Supplier reserves the right to change the Price in the event of a variation to the Supplier’s quotation.
3.3. At the Supplier’s sole discretion a deposit may be required.
3.4. At the Supplier’s sole discretion:
(a) payment shall be due on delivery of the Services; or
(b) payment shall be due before delivery of the Services; or
(c) payment for approved Clients shall be made by instalments in accordance with the Supplier’s payment schedule.
3.5. Time for payment for the Services 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 seven (7) days following the date of the invoice.
3.6. Payment will be made by cash, or by cheque, or by bank cheque, or by pay-pal, or by direct credit, or by any other method as agreed to between the Client and the Supplier.
3.7. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
3.8 The supplier's standard hourly for the majority of development services is $150.00.

4. Delivery Of Services

4.1. The failure of the Supplier to deliver the Service (or any part of them) shall not entitle either party to treat this contract as repudiated.
4.2. The Supplier shall not be liable for any loss or damage whatever due to failure by the Supplier to deliver the Services (or any part of them) promptly or at all where due to circumstances beyond the control of the Supplier.
4.3. Customers who purchase .au Domain Names must comply with any specifications, policies or codes of practice published by auDA including http://www.auda.org.au/policies/ and http://www.auda.org.au/policies/auda-2004-04/
4.4. We do not offer private registration services for .au domain names as noted at http://www.auda.org.au/consumeralert/consumeralert-12022013/
4.5. The terms and conditions of domain name licenses are available at http://policy.secureapi.com.au/
4.6. Delivery of hosting services including website hosting, email hosting, domain registration and dedicated hosting are subject to routine technology upgrades and maintenance. The Supplier shall not be liable for any loss or damage whatever due to hosting upgrades or maintenance.

5. Risk

5.1. If the Supplier retains ownership of the Services nonetheless, all risk for the Services passes to the Client on delivery.
5.2. All third-party software (including, but not limited to, open-source software) is provided at the Client’s own risk and is not in any way warranted by the Supplier, nor shall the Supplier be in any way responsible for the implementation or effects of any ‘patches’, ‘updates’, or ‘fixes’ offered by the manufacturer of the software.
5.3. The Client acknowledges that once the Services have been provided by the Supplier, the project is signed-off, and the website is activated, it is the sole responsibility of the Client to maintain the website unless an on-going maintenance schedule has been agreed upon in writing by both parties. The Supplier shall not be liable for any loss or damage caused by the Client making any changes to the website, and the Client acknowledges that they do so at their own risk.
5.4. The Supplier shall not be liable whatsoever for any loss or damage incurred by the Client’s as a result of:
(a) the Client failing to comply with any part of this agreement;
(b) any equipment failure (including, but not limited to, service provider power and telephone networks);
(c) computer hackers.

6. Title

6.1. The Supplier and the Client agree that ownership of the Services shall not pass until:
(a) the Client has paid the Supplier all amounts owing for the particular Services; and
(b) the Client has met all other obligations due by the Client to the Supplier in respect of all contracts between the Supplier and the Client.
6.2. Receipt by the Supplier 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 Supplier’s ownership or rights in respect of the Services shall continue.

7. Errors and Omissions

7.1. The Client shall inspect the Services on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Supplier of any alleged defect, errors, omissions, or failure to comply with the description or quote. The Client shall afford the Supplier an opportunity to inspect the Services within a reasonable time following delivery if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect. For defective Services, which the Supplier has agreed in writing that the Client is entitled to reject, the Supplier’s liability is limited to either (at the Supplier’s discretion) replacing the Services or correcting the Services, except where the Client has acquired Services as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion, either a refund of the purchase price of the Services, or repair of the Services, or replacement of the Services.

8. The Commonwealth Trade Practices Act 1974 (“ TPA” ) and Fair Trading Acts (“ FTA” )

8.1. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

9. Client Content

9.1. The Client warrants that all materials supplied to the Supplier to be used for the provision of the Services shall:
(a) be true and correct in every particular; and
(b) not breach any third-party copyright; and
(c) not be, nor contain, anything that is defamatory of any person or is indecent or obscene; and
(d) not breach any advertising industry standards or guidelines; and
(e) not contain nor constitute a statement that is misleading or deceptive or likely to deceive or to mislead or which is otherwise in breach of a provision of the Trade Practices Act of 1974.
9.2. The Supplier reserves the right to refuse to accept, or withdraw from display at any time, any material submitted by the Client that does comply with this clause.

10. Intellectual Property

10.1. Copyright in all designs, images, software, specifications, documents, and other materials provided to the Client by the Supplier shall remain vested in the Supplier until payment for these services has been received in full. Once payment has been made from the Client to the Supplier, the copyright of all designs, images, software, specifications, documents, and other materials related to the project becomes the property of the Client. The Client is hereafter free to take their business elsewhere along with all of the files associated with their project.

11. Default & Consequences of Default

11.1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, 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 judgment. A $20 administration fee will also apply for overdue invoices.
11.2. If the Client defaults in payment of any invoice when due, the Client shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in pursuing the debt including legal costs on a solicitor and own client basis and the Supplier’s collection agency costs.
11.3. Without prejudice to any other remedies the Supplier may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Supplier may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. The Supplier will not be liable to the Client for any loss or damage the Client suffers because the Supplier has exercised its rights under
this clause.
11.4. 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 ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
11.5 Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Supplier becomes overdue, or in the Supplier’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.
11.6 If the Client in default has any information or files on the Supplier’s Web space, The Supplier can, at its discretion, remove all such material, or withhold access from its web space. The Supplier is not responsible for any loss of data incurred due to the removal of the service. Removal of such material does not relieve the Client of the obligation to pay any outstanding charges assessed to the Client's account.

12. Security And Charge

12.1. Despite anything to the contrary contained herein or any other rights which the Supplier 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 Supplier or the Supplier’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 Supplier (or the Supplier’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 Supplier elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Supplier from and against all the Supplier’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 Supplier or the Supplier’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 12.1.

13. Cancellations & Refunds

13.1. The Supplier may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are delivered by giving written notice to the Client. On giving such notice the Supplier shall repay to the Client any sums paid in respect of the Price. The Supplier shall not be liable for any loss or damage whatever arising from such cancellation.
13.2. In the event that the Client cancels delivery of Services the Client shall be liable for any loss incurred by the Supplier (including, but not limited to, any loss of profits) up to the time of cancellation.
13.3. Fireworks provide hosting services on yearly contract cycles. Therefore no refunds can be provided if a customer no longer requires the hosting service mid-contract / mid-term.

14. Privacy Act 1988

14.1. The Client and/or the Guarantor/s agree for the Supplier 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 Supplier.
14.2. The Client and/or the Guarantor/s agree that the Supplier 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 the 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.
14.3. The Client consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
14.4. The Client agrees that personal credit information provided may be used and retained by the Supplier for the following purposes and for other purposes as shall be agreed between the Client and Supplier or required by law from time to time:
(a) provision of Services; and/or
(b) marketing of Services by the Supplier, its Suppliers or distributors in relation to the Services; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Services; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the 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 Services.
14.5. The Supplier 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.

15. General

15.1. 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.
15.2. These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
15.3. The Supplier 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 Supplier of these terms and conditions.
15.4. In the event of any breach of this contract by the Supplier the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Services.
15.5. 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 Supplier.
15.6. The Supplier may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
15.7. The Supplier 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 Supplier notifies the Client of such change.
15.8. 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.
15.9. The failure by the Supplier to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Supplier’s right to subsequently enforce that provision.