sMod Tasmania Pty Ltd – Terms & Conditions of Trade

January 2020

1. Definitions
1.1 “sMod” means sMod Tasmania Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of sMod Tasmania Pty Ltd.
1.2 “Client” means the person/s requesting sMod to provide the Services as specified in any invoice, document or order, and if there more than one person requesting the Services is a reference to each person jointly and severally.
1.3 “Services” means all Goods (which includes any files, information, artwork, printed or virtual material, samples, websites, brands, designs, images, advertising, data, graphics, pictures, trademarks or software, whether supplied from a third party software development company or where custom developed or programmed for the Client) or Services (which includes any advice or recommendations, graphic design of brands, designs, images, or advertising, brand integration or strategies, analysis, training, project management or service sourcing and the organisation of copyrighting such any Goods and/or Services) supplied by sMod to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Software” shall mean the programs and other operating information (including documentation) used by a computer, tablet and/or mobile device. Applications developed for use by end users will be accessible through the Web Site or cloud based applications while the business software and user data is stored on servers based at an alternative location for security and back-up purposes.
1.5 “Web Site” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.
1.6 “Prohibited Content” means any content on any advertising media that:
(a) is, or could reasonably be considered to be, in breach of any 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 (including, but not limited to, the
distribution of music files or any other material in which the Client does not own the copyright);
(d) IRC software, pirated software, hacked sites, programs or archives, and/or Warez sites.
1.7 “Price” shall mean the cost of the Services as agreed between sMod and the Client subject to clause 4 of this contract.
2. Acceptance
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by sMod.
2.2 These terms and conditions may only be amended with sMod’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and sMod.
2.3 None of sMod’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of sMod in writing nor is sMod bound by any such unauthorised statements.
2.4 Once accepted by the Client, sMod’s written estimate shall be deemed to interpret correctly the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, sMod shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
2.5 This agreement constitutes the entire agreement between sMod and the Client, and the Client hereby acknowledges that no reliance is placed on any representation made by sMod, but not embodied in this agreement.
3. Change in Control
3.1 The Client shall give sMod not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by sMod as a result of the Client’s failure to comply with this clause.
4. Price and Payment
4.1 At sMod’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by sMod to the Client; or
(b) sMod’s quoted price (subject to clauses 4.2 and 4.3) which will be valid for the period stated in the quotation or otherwise for a period of
thirty (30) days.
4.2 sMod reserves the right to amend the Price where there is any variation to the accepted plan of scheduled Services, or design/specifications,
which will be charged for on the basis of sMod’s standard hourly rates (and double such rate for any Services provided outside sMod’s normal
business hours) and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 The Client acknowledges that all services and support for email and setup of the Web Site are chargeable in addition to the Price.
4.4 At sMod’s sole discretion, a non-refundable deposit may be required.
4.5 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by sMod, which may be:
(a) payment for approved Clients shall be due twenty (20) days following the end of the month in which a statement is sent to the Client; (b) the date specified on any invoice or other form as being the date for payment; or
(c) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by sMod.
4.6 Payment may be made by cheque, electronic/on-line banking, credit card payment via the website or by any other method as agreed to between the Client and sMod.
4.7 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to sMod an amount equal to any GST sMod must pay for any supply of Services by sMod under this or any other agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5. Provision of the Services
5.1 Any time specified by sMod for provision of the Services is an estimate only and sMod will not be liable for any loss or damage incurred by the Client as a result of provision being late. However both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that sMod is unable to provide the Services as agreed solely due to any action or inaction of the Client, then sMod shall be entitled to:
(a) charge the Client additionally for re-providing the Services at a later time and date; or (b) subject to clause 18.3, terminate the agreement.
6. Risk and Limitation of Liability for Client Data
6.1 The Client acknowledges and agrees that sMod shall not be held responsible or liable for:
(a) anything related to the Web Site, Hosting Services or any other Services provided;
(b) any supplied content breaching any Acts, legislation or regulations, unless due to the negligence of sMod;
(c) any loss, corruption, or deletion of files or data (including, but not limited to software programmes) resulting from illegal hacking or Services provided by sMod. sMod will endeavour to restore the Web Site, files or data (at the Client’s cost), and it is the sole responsibility of the Client to back-up any data which they believe to be important, valuable, or irreplaceable prior to sMod providing the Services. The Client accepts full responsibility for the Client’s software and data and sMod is not required to advise or remind the Client of appropriate backup procedures;
(d) any loss or damage to the Client’s software or hardware caused by any ‘updates’ provided for that software.
6.2 The Client acknowledges that any advice or recommendations by sMod are provided on the basis of sMod’s industry knowledge and experience only and shall not be deemed as specialist advice.
6.3 sMod, its directors, agents or employees will not be liable in any way for any form of loss or damage of any nature whatsoever suffered, whether
arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to
the provision of the Services by sMod to the Client.
6.4 The Services are provided on an “as is, as available” basis. sMod specifically disclaims any other warranty, express or implied, including any
warranty of merchantability or fitness for a particular purpose.
6.5 Public Access:
(a) The Client understands that by placing information on the Web Site, such information may be accessible to all internet users. sMod do not (unless expressly requested by the Client) limit or restrict access to such information, nor protect such information from copyright infringement or other wrongful activity. The Client assumes full responsibility for their use of the Services, and it is the Client’s sole responsibility to evaluate the accuracy, completeness and usefulness or all opinions, advice, services, and other information, and the quality and merchantability of all Services provided by sMod, or on the internet generally.
7. Web Site Development
7.1 sMod’s Responsibilities:
(a) Upon acceptance of sMod’s quotation, and in accordance with this agreement, sMod will:
(i) use its best endeavours to develop the Web Site in accordance with the Client’s instructions and specifications; and
(ii) to the extent specified in the Client’s instructions and specifications, negotiate and procure any third-party agreements on behalf of the Client.
(b) The Client acknowledges that the development of the Web Site by sMod is based upon current technology platforms (e.g. internet
browsers, mobile, android, etc.), and therefore sMod cannot guarantee that Web Site features and /or content will display correctly, and
that the overall visual experience will be the same, for use by either superseded or presently undeveloped technology.
7.2 Client’s Responsibilities:
(a) The Client will, in addition to any other obligations expressed in this agreement, have the following responsibilities:
(i) provision of all data to be incorporated into the Web Site;
(ii) provision of logos, designs, graphic and related materials to be incorporated into the Web Site; and
(iii) provision of any other information, ideas or suggestions which are to be expressly considered by sMod in developing the Web Site.
(b) The Client will ensure that sMod is given such information and assistance as sMod reasonably requires to enable sMod to construct and maintain the Web Site.
(c) It shall be the Client’s responsibility to ensure that any specific requirements they may have for mobile web browsers is included in the brief, as, unless otherwise specified therein, the choice of web browsers and technology used in the development of the Web Site shall be at the sole discretion of sMod. In the event that additional Services are requested, or required (as per clause 7.1(b)), in order to meet any specific requirements for mobile web browsers, after sMod has commenced work on the Web Site, shall be treated as a variation to the Price and a strict estimation of further work required shall be submitted to the Client for approval before proceeding with the variation work.
(d) sMod will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the Web Site which is attributable to: (i) incorrect information provided by the Client, either pursuant to this clause or otherwise; or
(ii) failure by the Client to provide relevant information, either pursuant to this clause or otherwise; or
(iii) any third-party products and/or services used by sMod in creation of the Web Site.
7.3 Additional Services:
(a) sMod agrees that there will be no charge in the preparation of the initial quotation, which may include Client discussions, project scoping,
research, testing and business analysis, etc. However, in some instances the aforementioned services may be charged to the Client additionally (at sMod’s sole discretion). In the event the Client requires proofs, mock-ups, layouts, samples or dummies or printed, typewritten or other good copy and/or edits, this shall be invoiced at sMod’s hourly rate unless specified otherwise in the initial quotation, therefore, this variation shall be detailed on the invoice as per clause 4.2.
(b) All work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client.
(c) Any tabulated work and/or foreign language included in the job but not contained in the manuscript originally submitted for the purpose of estimating may be charged to the Client and shown as extras on the invoice.
(d) Unless otherwise agreed, the Client shall bear the cost of fonts, or colour proofs, or artwork, specially bought at the Clients request for
the job.
(e) Where the performance of any contract with the Client requires sMod to obtain products and/or services from a third party, the contract
between sMod and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to sMod,
and the Client shall be liable for the cost in full including sMod’s margin of such products and/or services.
(f) Whilst every effort will be taken by sMod to match virtual colours with physical colours, sMod will take no responsibility for any variation between virtual sale samples and either the virtual sale sample displayed on the Client’s computer and/or the final product. Should a physical sample be required this will be provided on request by the Client and will be charged for as an extra and charged contra against final invoice.
7.4 Proof Reading:
(a) Whilst every care is taken by sMod to carry out the instructions of the Client, it is the Clients responsibility to undertake a final proof reading. sMod shall be under no liability whatever for any errors not corrected by the Client in the final proof reading. Should the Client’s alterations require additional proofs this shall be invoiced as an extra.
(b) When style, type or layout is left to sMod’s judgement and the Client makes further alterations, this will be invoiced as an extra.
7.5 Client’s Property and Materials:
(a) In the case of property and materials left with sMod without specific instructions, sMod shall be free to dispose of them at the end of twelve (12) months after his receiving them and to accept and retain the proceeds, if any, to cover his own costs in holding and handling them.
(b) Where materials or equipment are supplied by the Client, sMod accepts no responsibility for imperfect work caused by defects in or unsuitability of such materials or equipment.
7.6 Maintenance:
(a) Subject to clause (b), sMod will provide the Maintenance Services in accordance with the maintenance terms set out in sMod’s maintenance schedule.
(b) The Client will procure all necessary authorisations, licences and consents to enable sMod to have access to the Web Site in order to provide the Maintenance Services.
8. Hosting Services
8.1 “Live Date” means the date in which sMod provides the Hosting Services as per initial acceptance of sMod’s quotation.
8.2 Hosting Services shall only be used by the Client for lawful purposes. Any use which violates any applicable national or international laws is strictly prohibited (e.g. posting or transmitting any unlawful, threatening, abusive, libellous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind – including, but not limited to, any transmission constituting or encouraging conduct that would constitute a criminal offense or give rise to civil liability).
8.3 T erm:
(a) The Client is required to pay a non-refundable annual fee for the Hosting Services, which is stipulated via sMod’s quotation and is due and payable as per the payment terms stated therein. This fee excludes domain registrations and SSL Certificates, and where the Client is changing from another hosting provider the install and set-up of the Web Site on sMod’s webservers, which shall be charged to the Client additionally. sMod may adjust the annual fee from time to time upon providing one (1) month’s written notice to the Client. Renewal of the Hosting Services will be billed to the Client one (1) month prior the anniversary of the Term, and annually thereafter.
(b) The Hosting Services may terminated by way of the Client providing sMod with a minimum of three (3) months written notice prior to the current anniversary of the Term. If no notice is given in accordance with this clause, the Client shall be liable for the full amount of the annual fee for Hosting Services for the current yearly Term.
8.4 sMod will, at its sole cost and expense:
(a) host the Web Site on sMod’s webservers; (b) ensure that from the Live Date:
(i) sufficient capacity is maintained on sMod’s webserver to enable users access to the Web Site in a timely manner;
(ii) the Web Site is accessible to users in accordance with the agreed service levels (subject to reasonable downtime for server maintenance which has been notified to the Client prior to the commencement of the downtime or (where applicable) Maintenance in accordance with clause 7.6);
(c) provide the Client with reasonable access to the Web Site to perform maintenance services.
8.5 sMod will not:
(a) alter or amend, or permit any person to alter or amend the Web Site without the written consent of the Client;
(b) post or display on the Web Site any advertisement, sponsorship or promotion without the written consent of the Client; (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 Web Site; or
(e) assign, transfer or authorise anyone else to exercise the rights in any licence granted pursuant to this agreement.
8.6 sMod will make best efforts to ensure that the Client receives continual and uninterrupted Services (including network or hosting servers) during the term of this agreement, however sMod does not in any way warrant or otherwise guarantee the availability of the Services, which shall be subject to regularly scheduled maintenance cycles, and many events/circumstances beyond the control of sMod. In no event though, shall sMod be liable to the Client for damages (including loss of income) resulting from or in relation to any failure or delay (including server downtime, programming errors, lack of connection or slow connection) of sMod to provide Services under this agreement, or any loss of data, if such delays or failures are due to circumstances beyond our control. Such a failure or delay shall not constitute a default under this agreement.
8.7 sMod may, at their sole discretion, limit or deny access to the Services is, in the judgement of sMod, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network.
8.8 Client’s Obligations:
(a) The Client will, at its sole cost and expense:
(i) subject to any contract with sMod for Web Site Development, develop and maintain the Web Site;
(ii) provide the content to sMod, in such form as reasonably prescribed by sMod from time to time, and hereby grants sMod a non-exclusive, worldwide, irrevocable licence to use such content for the purposes of hosting the Web Site;
(iii) do all things reasonably necessary to enable sMod to host the Web Site on sMod’s webserver;
(iv) ensure that content supplied to sMod do not contain Prohibited Content, a link to any web site that contains Prohibited Content, or
any viruses, trojan horses, worms, time bombs, cancel bots or any other software program or routine designed for or capable of
interfering with the operation of the Hosting Services.
(b) The Client will not:
(i) logon to an account that the Client is not authorised to access;
(ii) access data or take any action to obtain services not intended for the Client;
(iii) attempt to probe, scan or test the vulnerability of any system, subsystem or network;
(iv) tamper, hack, modify or otherwise corrupt or breach security or authenticity measures without proper authorisation; (v) transmit any material outlined in clause 8.8(a)(iv);
(vi) do anything that prevents or hinders sMod from providing Hosting Services to any other person.
(c) The Client acknowledges that spamming (i.e. the sending of unsolicited email), email address cultivation, or any unauthorised collecting of email addresses without prior notification of the email address owner is strictly prohibited.
8.9 Network Traffic:
(a) Network traffic shall be measured by sMod and may include all forms of traffic to and from the Web Site. Domestic data transfer is
provided free of charge, but sMod reserve the right to suspend Hosting Services (at any time and without notice to the Client) for what it
deems to be excessive traffic usage.
8.10 Limitation of Liability for Hosting Services
(a) in consideration of clause 21.3, in the event the Hosting Services provided to the Client are disrupted or malfunction for any reason, sMod’s liability shall be limited to damages which under no circumstances shall exceed the amount due and payable by the Client to sMod for the Hosting Services during the period of disruption or malfunction.
9. Search Engine Optimisation, Paid Search, Online Promotion
9.1 Although sMod shall use their knowledge and experience to gain the best results possible, sMod gives no guarantee of the quality of visitor or the position / page rank or volume of visits to the Web Site, or warranty that the Web Site will be effective in promoting the Client’s business or result in any increase in sales of the products/services of the Client. Periodic reporting will be sent to the Client’s nominated email address, at the sole discretion of sMod.
10. Title
10.1 sMod and the Client agree that the Client’s obligations to sMod for the supply of Services shall not cease (and ownership of any Goods shall not pass) until:
(a) the Client has paid sMod all amounts owing to sMod for the Services; and
(b) the Client has met all other obligations due by the Client to sMod in respect of all contracts between sMod and the Client.
10.2 Receipt by sMod 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 sMod’s ownership or rights in respect of the Services shall continue.
10.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 10.1 that the Client is only a bailee of the Goods and must return the Goods to sMod on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for sMod and must pay to sMod the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for sMod and must pay or deliver the proceeds to sMod on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of sMod and must sell, dispose of or return the resulting product to sMod as it so directs.
(e) the Client irrevocably authorises sMod to enter any premises where sMod believes the Goods are kept and recover possession of the Goods.
(f) sMod may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while
they remain the property of sMod.
(h) sMod may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to
the Client.
11. Client’s Disclaimer
11.1 The Client hereby disclaims any right to rescind, or cancel any contract with sMod or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Client by sMod, and the Client acknowledges that the Services are bought relying solely upon the Client’s skill and judgment.
12. Intellectual Property
12.1 The Client warrants that all designs or instructions to sMod will not cause sMod to infringe any patent, registered design or trademark in the execution of the Client’s order.
12.2 Where sMod has provided Software (and associated documentation) and/or for any of sMod’s source code, sMod retains ownership thereof, but grants the Client a non-exclusive and non-transferable licence for its use (solely in relation to the operation of the Client’s own business). The Client will use any third-party Software and/or source code supplied by sMod, and identified as such, strictly in terms of the licence (or any other conditions imposed by sMod) under which it is supplied. The Client further agrees that they shall not without sMod’s prior written consent:
(a) copy the Software and/or source code; or
(b) allow any third party to have access to the Software and/or source code; or
(c) alter, modify, tamper with, or reverse engineer the Software and/or source code; or (d) combine the Software and/or source code with any other software and/or item, etc.
12.3 Subject to the Copyright Act 1994 and the conditions therein, the Client agrees that they shall not in any way sell, reproduce, adapt, distribute, transmit, publish, or create derivative works from, any part of the Software (if supplied by sMod) or Web Site without sMod’s prior consent in writing (including, but not limited to, underlying code elements, or any part of the Web Site’s design or layout).
12.4 The Client hereby authorises sMod to utilise images of the Web Site designed or created by sMod in advertising, marketing, or competition material by sMod.
13. Consumer Guarantees Act 1993
13.1 If the Client is acquiring Services for the purposes of a trade or business, the Client acknowledges that the provisions of the Consumer Guarantees Act 1993 do not apply to the supply of Services by sMod to the Client.
14. Default and Consequences of Default
14.1 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 a half percent (2.5%) per calendar month (and at sMod’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 If the Client owes sMod any money the Client shall indemnify sMod from and against all costs and disbursements incurred by sMod in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, sMod’s collection agency fees, and bank dishonour fees).
14.3 Without prejudice to any other remedies sMod may have, if at any time the Client is in breach of any obligation (including those relating to payment, whether or not the payment is due to sMod) sMod may suspend or terminate the provision of Services to the Client, (this includes but is not restricted to, withholding domain codes, passwords and Goods, and/or blocking or restricting public and Client access to the Web Site, or removing the Web Site from the web completely) and any of its other obligations under the terms and conditions. sMod will not be liable to the Client for any loss or damage the Client suffers because sMod has exercised its rights under this clause.
14.4 Without prejudice to sMod’s other remedies at law sMod shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to sMod shall, whether or not due for payment, become immediately payable if:
(a) any money payable to sMod becomes overdue, or in sMod’s opinion the Client will be unable to make a payment when it falls due;
(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.
15. Confidentiality
15.1 Each party agrees to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party, without the other party’s written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.
16. Cancellation and Termination
16.1 sMod may cancel these terms and conditions or cancel delivery of Services at any time before the Services are delivered by giving written notice. sMod shall not be liable for any loss or damage whatever arising from such cancellation.
16.2 At sMod’s sole discretion the Client may cancel delivery of the Services. In the event that the Client cancels delivery of the Services the Client shall be liable for any costs incurred by sMod up to the time of cancellation.
16.3 Should the Client, for any reason, cause the Services to be delayed for more than three (3) months after the acceptance date, this agreement will be terminated by sMod (at their sole discretion) and all Services completed, but not billed or paid, will be payable in full within fourteen (14) days from the date of the submitted invoice.
16.4 If the Client fails to comply with any of the provisions of this agreement and does not rectify such non-compliance within seven (7) days of sMod giving notice either in writing, via fax or email, then sMod may without prejudice to any other rights or remedies, and without being liable to the Client for any loss or damage that may result, give notice to the Client terminating their right to use the Web Site, Software and Services. Upon termination of the agreement, the Client shall lose all right to use the Web Site and products, and shall forthwith deliver the Goods to sMod and destroy all copies made. The Client shall certify in writing that the copies have been destroyed.
16.5 In the event the Services are terminated as per clauses 18.3, 18.4 or 8.3(b), the Services can be re-instated under a new contract at the prevailing rates; however no credits or discounts will be granted, and reinstatement costs shall apply.
17. Dispute Resolution
17.1 sMod and the Client will negotiate in good faith and use their reasonable efforts to settle any dispute that may arise out of, or relate to, this agreement, or any breach thereof. If any such dispute cannot be settled amicably through ordinary negotiations, the dispute shall be referred to the representatives nominated by each party who will meet in good faith in order to attempt to resolve the dispute. Nothing shall restrict either party’s freedom to commence legal proceedings to preserve any legal right or remedy or protect and proprietary or trade secret right.
18. General
18.1 The failure by sMod to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect sMod’s right to subsequently enforce that provision. 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.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Australia and are subject to the jurisdiction of the courts of the Maroochydore Magistrates Court, Queensland, Australia.
18.3 sMod shall be under no liability whatsoever to the Client for any expenses, claims, costs (including but not limited to legal fees and commissions), damages suffered or incurred by sMod, or indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by sMod of these terms and conditions, caused by any failure by the Client to comply with their obligations under this agreement, or that arise from any claim relating to the Services by any person that the Client authorises to use the Services, or where due to server downtime or programming errors (alternatively sMod’s liability shall be limited to damages which under no circumstances shall exceed the Price).
18.4 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 sMod nor to withhold payment of any invoice because part of that invoice is in dispute. Any invoice query/dispute will not be recognised if notified outside of fourteen (14) days from the date of the invoice.
18.5 sMod may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
18.6 The Client agrees that sMod may amend these terms and conditions at any time. If sMod makes a change to these terms and conditions, then that
change will take effect from the date on which sMod notifies the Client of such change via email. The Client will be taken to have accepted such
changes if the Client makes a further request for sMod to provide Services to the Client.
18.7 Neither party shall be liable for any default due to fires, explosions, severe weather, industrial disputes, insurrection, requirements or
regulations, or any civil or military authority, acts of war (whether declared or not), civil unrest, acts of God, earthquake, flood, riot, embargo, government act, strike, lock-out, storm, terrorism, DNS caching, propagation, or other DNS issues outside the reasonable control of either party, or failure or outage of any telecommunications links or other connections forming part of the Internet which are beyond the reasonable control of either party.
18.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.