Terms and conditions

• The Client shall pay Hatch Head the Fees for the Services.
  

  • Background IP means any Intellectual Property Rights owned by Hatch Head which are created or derived independently of these Terms; and
  • Third Party IP means Intellectual Property Rights proprietary to third parties (including open-source software) which are utilized by Hatch Head in the provision of the Services.

• Fees specified in these Terms and a Proposal are exclusive of GST and other similar taxes and surcharges and net of withholding or other similar taxes.
  

• If Goods and Services Tax (GST) has application to any supply made under or in connection with these Terms, Hatch Head may, in addition to any amount or consideration payable under these Terms, recover from the Client an additional amount on account of GST, such amount to be calculated by multiplying the amount or consideration payable by the Client for the supply by the prevailing GST rate.
  

• Any additional amount on account of GST recoverable from the Client under this clause shall be calculated without any deduction or set-off of any other amount and is payable by the Client upon demand by Hatch Head whether such demand is by means of an invoice or otherwise.
  

• In addition to the Services Fee, the Client shall pay all reasonable costs incurred by Hatch Head while performing support tasks, including but not limited to data communication costs, third party hosting costs, and the costs of any third-party software/plugins unless expressly specified otherwise in a Proposal (Additional Services Fee).
  

• Hatch Head shall together with its invoice for the Services Fee, submit details of any Additional Services Fee to the Client.
  

• Within 10 Business Days of the last day of each calendar month or on such other dates as set out in a Proposal, Hatch Head must issue to the Client an invoice for the Fees and charges payable in respect of that period.
  

• The Client must pay invoices within 14 Business Days of receipt.
  

If the Client does not pay the Fees on or before the due date, Hatch Head shall be entitled to receive interest on overdue payments of 1% per month and shall be entitled to withhold delivery or part thereof of Services yet to be provided.

Hatch Head may, without limiting any other rights or remedies it may have, set off any amounts owed to it by the Client under these Terms against any amounts payable by Hatch Head to the Client.

• Upon full payment of the Fees, and subject to the Client’s final approval of such Deliverables in accordance with clause 3, the Intellectual Property Rights, other than the Background IP and the Third Party IP, in each of the Deliverables, the Application(s) and the Documentation shall vest in and become the absolute property of the Client Assigned IP) and the Client grants to Hatch Head a perpetual non-exclusive, royalty-free right to use the Assigned IP so long as such use does not otherwise breach its obligations under these Terms.
  

• The
  

  • Background IP is, and shall remain the property of Hatch Head; and
  • Third Party IP is, and shall remain the property of the relevant third party owner,

  and for so long as the Client is not in breach of these Terms, Hatch Head grants to the Client a perpetual non-exclusive, royalty-free, non-transferable right to use the Background IP and the Third Party IP to the extent necessary to obtain the full benefit of the Deliverables and the Services.
  

• For the purposes of this clause:
  

  • Background IP means any Intellectual Property Rights owned by Hatch Head which are created or derived independently of these Terms; and
  • Third Party IP means Intellectual Property Rights proprietary to third parties (including open-source software) which are utilized by Hatch Head in the provision of the Services.

• Notwithstanding anything else in this clause 6.1, the parties agree that all Intellectual Property Rights in any designs, concepts or other creative materials that do not form part of a final, approved Deliverables or are otherwise rejected by the Client at any time (including under clause 3) shall remain the property of Hatch Head.
  

Notwithstanding clause 6.1, where the Services consist (in whole or in part) of a detailed plan by Hatch Head setting out how Hatch Head proposes to complete a specific project or mandate, and such Proposal is not accepted by the Client, without limiting any other clause in these Terms, the Intellectual Property Rights in such Proposal shall remain the property of Hatch Head and the Client must not disclose such Proposal to any third party for the purposes of requesting that third party to utilise, replicate or modify such Proposal for the purpose of providing any similar services to the Client.

• This document will commence upon the Commencement Date and will continue until terminated under clause 7.2, by mutual agreement between the parties or as otherwise set out in a Proposal.
  

• If no term is expressly set out in a Proposal, the engagement and this agreement to provide the Services will be terminable by Hatch Head on 30 days’ notice, provided such notice does not expire before the first anniversary of the date of commencement of the Services.
  

• Each party agrees to, and shall ensure each of its officers, employees and contractors:
  

  • hold in strict confidence all Confidential Information of the other party;
  • use the Confidential Information solely to perform or to exercise its rights under these Terms; and
  • not transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any third party.
  • use its best endeavours, including keeping such information in a safe place and implementing adequate security measures, to ensure that all Confidential Information is secure from unauthorized use, disclosure or copying by third parties.

• The obligations in clause 8(a) do not apply:
  

  • to the extent necessary to enable disclosure required by law;
  • to a disclosure agreed in writing between the parties; or
  • where the Confidential Information has entered the public domain other than as a result of a breach by the Client of these Terms.

• This clause sets out the entire financial liability of the parties (including any liability for the acts or omissions of its employees, agents and subcontractors) to each other in respect of:
  

  • any breach of these Terms;
  • any use made of the Services, the Deliverables or an Application; and
  • any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.

• As far as the law permits and unless otherwise specified in these Term
  

  • all liability to a party for any injury, loss damage, cost or expense relating to or arising from these Terms, except to the extent that the injury, loss, damage, cost or expense arises from the negligent act or omission of a party, is excluded;
  • the Client shall be solely responsible, as against Hatch Head, for any opinions, recommendations, forecasts or other conclusions made or actions taken by the Client, any client of the Client or any other third party based (wholly or in part) on the results obtained from the use of the Services by the Client;
  • Hatch Head shall have no liability for any damage caused by errors or omissions in any information or instructions provided to Hatch Head by the Client in connection with the Services;
  • Hatch Head shall have no liability for, and no obligation to amend, replace or refund, any Deliverables that cease to function in accordance with any agreed specifications or services levels to the extent the failure arises from a change to any operating or software platform or any change to the terms and conditions implemented by any third party;
  • all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded from these Terms; and
  • where the Services becomes unavailable due to the failure of any third-party hosting provider, Hatch Head’ liability for a breach of these Terms will be limited to the extent that such failure was caused, or contributed to, by Hatch Head.

• Both parties must comply with all applicable requirements of the Data Protection Legislation.
  

• Without prejudice to the generality of clause 9.5(a), the Client will ensure that it has all necessary and appropriate consents and notices in place to enable lawful transfer of any personal data to Hatch Head for the duration and purposes of these Terms so that Hatch Head may lawfully use, process and transfer the personal data in accordance with these Terms on the Client’s behalf.
  

• Hatch Head shall notify the Client immediately if it becomes aware of any security incident affecting its network and information systems that could potentially affect the Client and shall respond without delay to all queries and requests for information from the Client about any security incident, whether discovered by Hatch Head or the Client.
  

• During the term of these Terms and for a period of six months after its termination neither party shall, without the prior written consent of the other, solicit, or permit any related entity of that party to solicit, the employment of any person who is employed by the other party or its related entities in the course of developing, supplying, maintaining or supporting the Services or any part of it.
  

• if a party breaches clause 11(a), then it shall pay to the other party an amount equal to twelve month’s salary (excluding any bonus or benefits) for the employee concerned in recognition only of the disruption that such inducement has caused to the efficient conduct of the other party's business.
  

• Neither party may commence court proceedings concerning any dispute between the parties arising out of or in relation to this document (Dispute), unless the party starting the proceedings has complied with this clause 13.
  

• A party claiming that a Dispute has arisen must notify the other party in writing, specifying the nature of the Dispute (Dispute Notice).
  

• Following the Dispute Notice being given, the CEO of both parties must endeavour in good faith to resolve the Dispute within 14 days.
  

• If the Dispute is not resolved within 14 days of the Dispute Notice being given, the parties must endeavour in good faith to resolve the Dispute by mediation as follows:
  

  • if the parties fail to agree on the appointment of a mediator within 21 days of the Dispute Notice being given, either party may apply to the President of the Law Society of Queensland or the nominee of the President to nominate a mediator (which nomination the parties must accept);
  • if the mediator accepts the appointment, the parties must comply with the mediator’s instructions;
  • if the Dispute is not resolved within 21 days of the appointment of a mediator, the mediation ceases;
  • the parties will be jointly responsible for the fees of the mediation, and each party is to bear its own costs in relation to the mediation;
  • the mediation will be held in Brisbane, Queensland;
  • the parties may be legally represented at the mediation; and
  • the mediation will not be bound by the rules of natural justice and may discuss the Dispute with a party in the absence of any other party and their advisers.

• Nothing in this clause prevents a party from seeking urgent interlocutory relief in a court.
  

• Application means the tools or applications developed by Hatch Head which are specified in the Services.
  

• Application means the tools or applications developed by Hatch Head which are specified in the Services.
  

• Business Day means a day that is not a Saturday, Sunday or public holiday in Brisbane, Queensland.
  

• Client Data means all information provided by the Client for the purposes of providing the Services to be stored, transmitted, processed and/or retrieved by Hatch Head in its performance of the Services.

• Commencement Date means the date of acceptance of these Terms.

• Confidential Information means any information:
  

  • relating to the business and affairs of a party;
  • relating to the customers, clients, employees, sub-suppliers or other persons doing business with a party;
  • relating to these Terms or a Proposal;
  • relating to the Intellectual Property Rights or Source Code of a party;
  • which is by its nature confidential;
  • which is designated as confidential by a party; or
  • which the other party knows or ought to know, is confidential,

  and includes all trade secrets, knowhow, marketing, financial and customer information, forecasts, and strategies and any other commercially valuable information of a party.
  

• Consequential Loss means indirect, economic, special or consequential loss or damage, loss of revenue, time, goodwill, data, anticipated savings, opportunity, loss of production and loss of profit.
  

• Data Protection Legislation means:
  

  • the Privacy Act 1988 (Cth) and any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued under it, as amended from time to time;
  • the Australian Privacy Principles (or APPs) contained in schedule 1 of the Privacy Act referred to in (i); and
  • all other laws, regulations, registered privacy codes, privacy policies and contractual terms applicable in the jurisdiction where the Services are being provided that relate to the processing of personal information.

• Deliverables means the products or services to be delivered as final to, and approved by, the Client by Hatch Head as set out in a Proposal.
  

• Documentation means any operating manuals, user instruction manuals, technical literature and all other related materials in human-readable or machine-readable forms supplied by Hatch Head as part of the Deliverables.
  

• Fee means the fees for the Services payable by the Client under these Terms and as set out in a Proposal, including the Services Fee and any Additional Services Fee.
  

• Force Majeure Event means an act of God, national emergency, terrorist act, sabotage, flood, storm, earthquake, pandemic, epidemic, fire, explosion, civil disturbance, insurrection, riot, war, industrial action, lockout, rebellion, quarantine, embargo and other similar governmental action or a general and continued energy shortage, power or utilities interruption or failure.
  

• Insolvency Event means any of the following events concerning a party:
  

  • if an administrator, liquidator, receiver, receiver and manager or other controller is appointed to, or over, any of the property or undertaking of the party;
  • if the party is unable to pay its debts when they become due and payable;
  • if the party ceases to carry on business; or
  • if any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition

• Intellectual Property Rights means all industrial and intellectual property rights throughout the world, whether registered, unregistered or unregistrable, including all copyrights, patents, trademarks, service marks, designs, confidential information, trade secrets, know how, data and databases, systems and domain names
  

• Services means the services to be provided by Hatch Head as specified in each Proposal or as otherwise agreed between the parties.

• Services Fee means the fee set out in a Proposal or if not specified, an amount calculated at Digital Maker’s usual rates and charges to carry out the Services and reviewed annually.

• Source Code means software written in a form intelligible to trained programmers and capable of being translated into object code through assembly or compiling for operations on computer equipment.

• UAT means User Acceptance Testing.

• a reference to a clause, schedule, annexure or party is a reference to a clause of, and a schedule, annexure or party to, this document;

• a reference to a party to this document or any other document or agreement includes the party's successors, permitted substitutes and permitted assigns;
  

• if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
  

• a reference to a document or agreement (including a reference to these terms) is to that document or agreement as amended, supplemented, varied or replaced;
  

• a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
  

• if any day on or by which a person must do something under this document is not a Business Day, then the person must do it on or by the next Business Day;
  

• a reference to a person includes a corporation, trust, partnership, unincorporated body, government and local authority or agency, or other entity whether or not it comprises a separate legal entity;
  

• a reference to '$' or 'dollar' is to Australian currency; and
  

• the meaning of any general language is not restricted by any accompanying example, and the words 'includes', 'including', 'such as', or 'for example' (or similar phrases) do not limit what else might be included.