GENERAL TERMS & CONDITIONS
Where the Company is required under any Order Form to provide Services to the Client, then these General Terms & Conditions will apply to such Services.
1A Definitions and Interpretation
The following definitions apply in this document
Agreement where the context is this contract means these General Terms & Conditions, any Order Form accepted by the Client and any attachments
Applicable Law means any applicable statute, regulation, by-law, ordinance, policy or subordinate legislation in force from time to time in Australia, whether made by a State, Territory, the Commonwealth or a local government that may apply to the Services provided under this Agreement.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Client Content means all materials, logos, information, photography, writings and other content (including creative content) provided by the Client for use in the preparation of and/or incorporation in the Deliverables.
Confidential Information in relation to a party means information of a confidential nature including information about its business, operations, strategy, administration, technology, affairs, clients, customers, employees, contractors or suppliers, including the terms of this Agreement and any applicable Order Form, but does not include any information which is in the public domain other than through a breach of confidence.
Deliverables means any content (including but not limited to Trial HSC Papers and/or Preliminary Papers in the specific subject area) created or developed by or on behalf of the Company for the Client for the purposes of or relating to this Agreement and each Order Form or in the provision of the Services in the form and media specified in the Order Form or any additional Order Form.
HSC means Higher School Certificate.
Intellectual Property Rights means all current and future registered and unregistered rights in respect of patents, copyright, designs, trade marks, trade secrets, know-how, confidential information, inventions (including patents), strategies, templates, ideas, domain names, discoveries, data, database, and all other rights resulting from intellectual activity whether created before or after the date of this Agreement, and whether in Australia or otherwise.
Moral Rights means the moral rights granted under the Copyright Act 1968 (Cth), including the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship, and any similar rights existing under foreign laws.
NESA means the New South Wales Education Standards Authority.
Order Form means the Order Form completed and submitted online or as otherwise agreed between the parties via email and substantially in the form located at www.twoteach.com.au/order-form.
Preliminary Papers means the content created by the Company as part of the Services and Deliverables.
Services means services related to (but not limited to) and as specified in the completed Order Form and any additional Order Form as agreed between the parties from time to time.
Trial HSC Papers means the content created by the Company as part of the Services and Deliverables.
In this Agreement:
(a) clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
(b) words in the singular include the plural and vice versa; and
(c) a reference to:
(i) a party to this Agreement includes that party’s permitted assigns; and
(ii) including and similar words do not imply any limit.
To ensure things go smoothly and to help us help you, we are both required to do certain things and for convenience, we have set some of those things out below and everything else will be as set out in the Order Form.
2.1 Our Obligations
As soon we receive the Fee and receipt of all necessary Client Content to commence the Services we will:
(a) commence the Services and will undertake commercially reasonable efforts to perform the Services and provide the Deliverables for the timeframes agreed in the Order Form;
(b) ensure best efforts to create and develop the Deliverables that meets the goals set out in each applicable Order Form;
(c) ensure that all material in the Deliverables (save and except any Client Content supplied by you), will be our original work and will not infringe the rights (including Intellectual Property Rights) of any third party; and
(d) ensure we have (where applicable) obtained appropriate permission, release, waiver or some other form of written permission of any third parties to use any third party materials.
2.2 Your obligations
You acknowledge and agree:
(a) to pay the Fees as specified in the Order Form;
(b) to the extent applicable, you will grant all necessary rights and licenses under this Agreement without violating the legal or equitable rights of any third party (including without limitation any Intellectual Property Rights);
(c) you will at all times comply with this Agreement, Applicable Laws and regulations.
(a) If you do not meet your obligations as set out in this Agreement and/or the Order Form, you acknowledge and agree that we are not liable for any failure to provide the Services to the extent that such failure is caused by your failure to comply with your obligations.
(b) If as a result of you not meeting your obligations our performance of our obligations under this Agreement is prevented or delayed, then, without prejudice to any other right or remedy we may have, we will cancel and reschedule the time agreed to provide the Services.
(c) In the unlikely event that we are unable to provide the Services in this Agreement for any reason including, but not limited to illness, injury, emergency, or act of God, sudden event or other circumstances beyond our control (Force Majeure Event), then we will provide new dates to complete the Services.
3 Relationship of the Parties
3.1 Independent Contractor
It is expressly agreed that the parties shall be independent contractors and that the relationship between the parties shall not constitute a partnership, joint venture or agency and in particular, not the relationship of employer and employee. Neither party shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other party, without the prior consent of such other party.
We will be the non-exclusive provider of the Services. We shall be entitled to offer and provide our services to others, solicit other clients and otherwise advertise the services offered by us.
3.3 Use of Subcontractors
Sometimes we use subcontractors to help us provide some of the Services, we only source the best people for the job. If we do use subcontractors, we will be responsible for their work and for paying them.
4.1 Payment of Fees
(a) Payment for our Services (Fees) will be in Australian Dollars (AUD), and will be made by electronic funds transfer to e either our bank account, via our payment gateway, details of which will be set out in our invoice. All invoices will be sent electronically.
(b) All payments made by you, must be made within 7 days of the date of the invoice or as otherwise agreed and specified in the invoice. Payments will include all applicable taxes as set out in the relevant invoice.
4.2 Late Payment
You will be responsible for:
(a) any costs associated with international transfers;
(b) the credit card transaction fee being 3% of the total invoice where you pay using a credit card; and
(c) late payment fee of 1.5% of the total Fees chargeable per day following the due date.
4.3 Variation of Fees
We are entitled to vary the prices charged for its Services during the term of this Agreement with 14 days written notice to the Client, prior to the change being implemented. The increase in fees will not apply to the Fees agreed and accepted in the Order Form, provided the Services are not postponed.
You acknowledge and agree to pay us for any additional expenses which will be set out in the Order Form and we will make sure to obtain your approval before incurring any expenses.
5 Intellectual Property Rights
5.1 Assignment of Intellectual Property
We retain all rights to the Deliverables (excluding any Client Content), and you shall obtain a royalty-free perpetual, irrevocable, non-exclusive, transferable license to use, reproduce, publish, translate, distribute and display any content created by us strictly for use as part of the Client’s internal educational purposes. This license extends to some or all of the Deliverables on a worldwide basis and allows incorporation into other works with appropriate link attribution back to our domain or social media accounts.
5.2 Company Content
We own all Intellectual Property Rights in all our content, material, developed and/or utilized by us in performing the Services, including, without limitation, templates, ideas, strategies and other tools. We may create tailored templates for use in your business and any such templates may contain our Intellectual Property. The creation of such templates is for your internal purposes only and must not be copied, used, reproduced, sold or used for commercial purposes other than as expressly set out in this Agreement.
We will provide you with a non-exclusive licence to use (if applicable) in perpetuity our intellectual property, but strictly for use with the Services and Deliverables unless agreed otherwise between us in writing.
5.3 Use of Client Content
Any Client Content you provide us, including all pre-existing trademarks and copyright material, shall remain your intellectual property. You give us permission to use your Client Content to enable us to perform the Services and produce the Deliverables.
5.4 Recognition of work
We reserve all rights to refer to you for the sole purposes of recognition of creative excellence or professional advancement and may refer to you on our website or our social media channels.
5.5 Third Party Materials
All third party materials are the exclusive property of their respective owners (Third Party Materials). We will inform you of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Deliverables. Under such circumstances, you are responsible for the costs of such Third Party Materials and we shall inform you of any need to license and any cost associated including costs of obtaining a license to be borne by you.
6 Warranties and Indemnities
(a) Except as expressly set out in this Agreement, the Deliverables are provided on an “as is” without representation, warranty or condition of any kind, either express or implied, including, but not limited to the implied representations, warranties or guarantees that any result or objective (including financial) can or will be achieved or attained at all, whether stated in this Agreement or otherwise specified in the Services. We will do our absolute best to deliver our Services and provide the Deliverables to standards equivalent in our industry and will be provided in a professional manner.
(b) If any condition or warranty is implied into this Agreement and cannot be excluded, and the Company is able to limit the client’s remedy for breach of such a condition or warranty, then the liability of the Company is limited:
(i) in the case of goods to the replacing of the goods or of acquiring equivalent goods or the payment of the cost of having the goods repaired; or
(ii) in the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again.
You must indemnify and hold us harmless from all claims and losses arising from any action, claim, loss, damage, liability, expense and third parties, infringement of third party intellectual property (including Moral Rights), or third party losses by reason of or arising out of or in connection with their breach or failure to comply with their obligations set out in this Agreement, and for any information or Client Content supplied to us by you, your employees or suppliers.
(c) In no event shall we be liable for any delays, errors, any loss, damage or cost, including without limitation, incidental, indirect, consequential, punitive or special damages (including but not limited to damages to business reputation, lost business, or lost profits), whether foreseeable or not in connection with your use and engagement of our Services, or the use of information provided by you to us.
(d) We will not be liable for any Services and/or Deliverables that have been accepted by you.
(e) Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done by the other party under or in connection with the Agreement or an applicable Order Form.
(f) Our liability under this Agreement (including under indemnity) will be reduced to the extent that your acts or omissions contribute to or cause the liability.
7 Confidentiality and Privacy
(a) Each party agrees that, unless it has the prior written consent of the other party, it will:
(i) keep confidential at all times the Confidential Information of the other party; and
(ii) ensure that any personnel or professional advisor to whom a party discloses the other party’s Confidential Information is aware of and complies with this clause.
(b) The obligations of confidentiality in this clause do not apply to any disclosure:
(i) for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
(ii) required by Applicable Law; or
(iii) of Confidential Information which is publicly available through no fault of the recipient of the Confidential Information or its personnel, or was rightfully received from a third party without restriction and without breach of any obligation of confidentiality.
To the extent applicable, each party acknowledges and agrees that where personal information is disclosed, the recipient will comply with the applicable privacy laws and guidelines.
We reserve the right to either not provide the Services or to terminate the Services where we in our sole discretion consider the mutual confidence and trust no longer exists or where you are otherwise in breach of any warranty or obligation (including the obligation to pay the Fees) in this Agreement.
8.2 Consequences of termination
(a) If you terminate or if you:
(i) become insolvent, bankrupt or go into liquidation; or
(ii) fail, refuse or neglect to pay the Fees when due or fail to provide the necessary information or material for us to perform the Services and provide the Deliverables;
(b) You guarantee that you will make payment to us for all Fees due for any work completed upto and including the termination date under this Agreement; and
(c) Other than as provided in this clause, all rights and obligations of each Party under this Agreement, exclusive of the Services, shall survive.
9 Miscellaneous provisions
9.1 Entire Agreement
This Agreement constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.
9.2 Choice of Law
This Agreement is governed by the laws of the state of New South Wales, Australia. Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.
If this Agreement is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency. Where this Agreement is inconsistent with the Order Form, then the Order Form prevails to the extent of the inconsistency.
9.4 Counterparts and Electronic Signature
This Agreement shall become binding when any one or more counterparts, individually or taken together are signed by the parties. This Agreement may be executed in counterparts, and may be executed by way of electronic signature, including accepting by clicking “I consent” or “I agree” or similar and if so, shall be considered an original, properly executed agreement.
9.5 Severability and Survival
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under Applicable Law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision. There are some clauses in this Agreement like Dispute Resolution and Mediation, Liability, Indemnity, Intellectual Property Rights and any other terms which by their nature should continue to apply, will survive any termination or expiration of this Agreement.
9.6 No Representations
Each party acknowledges that no party (nor any person acting on a party’s behalf) has made any representation or other inducement to it to enter into this Agreement or as to future conduct, except for the representations or inducements expressly set out in this Agreement.
An amendment or variation to this Agreement is not effective unless it is in writing and signed by the parties.
9.8 Dispute Resolution and Mediation
(a) If there is any dispute or if the Client is not happy about the Services, please contact the Company so that we can discuss and both parties will use their best efforts to resolve any dispute under, or in connection with the Agreement, through good faith negotiations with the other party.
(b) In the event of a dispute arising out of this Agreement that cannot be resolved by mutual agreement, the Parties agree to engage in mediation and shall refer the dispute to an independent mediator as agreed and will use their best endeavours to resolve the dispute in mediation. All costs associated with the dispute, (including legal, mediation or arbitration fees), will be at the expense of the Client.
Any written notice under this Agreement can only be given in writing solely by email (in which case notice is deemed to have been received at the time the message enters the recipient’s server, except if the notice is set out of normal business hours or on a day other than a Business Day (a Business Day is a day not a Saturday, Sunday or a public holiday or a bank holiday place where the Company resides), in which case notice is deemed to have been given on the next Business Day.