Terms and Conditions

Last Updated: Feb 8, 2018

These are the terms and conditions subject to which we allow you to use Our Website and Services. By visiting or using Our Website, or making an order for Services, you agree to be bound by them.

We are Coherent Software Australia Pty Ltd, a company registered in Australia, ABN 15 068 209 576. Trading as Coherent Digital.

Our address is Suite 9, 1176 Nepean Hwy, Cheltenham Vic 3192.

Our current contact details can be found at https://www.coherentdigital.com.au/company/contact-coherent-digital.html

You are: Anyone who uses Our Website or buys any Service from us in any circumstances.

It is now agreed as follows:

  1. Definitions
    means either of Coherent Software Australia Pty Ltd or Coherent Digital (also us, we).
    means the instruction manuals, user guides and other documentation agreed to be written by you.
    "Hosting Services"
    means all of the services we offer on Our Website or agree in writing to provide, that relate to online hosting, whether free or charged. These services include, but are not limited to: website hosting, CMS hosting, web application hosting (e.g. CRM, ERP), email hosting, DNS hosting, domain registration services.
    "Intellectual Property"
    means intellectual property owned by us, of every sort, whether or not registered or registrable in any country, including intellectual property of all kinds coming into existence after today; and including, among others, patents, trademarks, unregistered marks, designs, copyrights, software, domain names, discoveries, creations and inventions, together with all rights which are derived from those rights.
    “Our Website”
    means all websites under the domains coherentdigital.com.au and coherentsoftware.com.au, as well as any website or service designed for electronic access by mobile or fixed devices which is owned or operated by us. It includes all of the web pages owned by us.
    means the price for our Services as set out on Our Website or supplied to you in writing.
    "Renewable Services"
    means Services involving Work that is intended to be repeated at regular intervals.
    means all of the services described on Our Website, or that we agree in writing to provide to you, whether free or charged, excluding only Hosting Services. For clarity, this term does include "Renewable Services".
    means the written specification of the Work you have instructed us to do.
    means the work we do to provide the Services you have ordered.
  2. Interpretation

    In this agreement unless the context otherwise requires:

    1. a reference to one gender shall include any or all genders and a reference to the singular may be interpreted where appropriate as a reference to the plural and vice versa;
    2. a reference to a person includes a human individual, a corporate entity and any organisation which is managed or controlled as a unit;
    3. in the context of permission, “may not” in connection with an action of yours, means “must not”;
    4. the headings to the paragraphs to this agreement are inserted for convenience only and do not affect the interpretation;
    5. any agreement by either party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing;
    6. except where stated otherwise, any obligation of any person arising from this agreement may be performed by any other person;
    7. in any indemnity, a reference to costs or expenses shall be construed as including the estimated cost of management time of the indemnified party, such cost calculated at $175 per hour;
    8. these terms and conditions apply to all supplies of Services by us. They prevail over any terms proposed by you;
    9. this agreement is made only in the English language. If there is any conflict in meaning between the English language version of this agreement and any version or translation of this agreement in any other language, the English language version shall prevail.
  3. Basis of contract
    1. In entering into this contract you have not relied on any representation or information from any source except the definition and explanation of the Services given on Our Website.
    2. If you use Our Website in any way or make an order on behalf of another person you warrant that you have full authority to do so and you accept personal responsibility for every act or omission by you.
    3. Subject to these terms and conditions, we agree to complete the Work and to provide to you some or all of the Services described on Our Website or Specification at the Prices we charge from time to time.
    4. You acknowledge that you understand exactly what is included in the Services and you are satisfied that the Services you intend to buy are suitable and satisfactory for your requirements.
    5. So far as we allow use of our Intellectual Property, we grant a licence to you, limited to the terms set out in this agreement.
    6. Our contract with you and licence to you last until the end of any time period specified in our invoice, or if no time period is specified in the invoice, until we have completed the Work and you have paid in full the amounts invoiced. Any continuation by us or by you after the expiry is a new contract in the terms then shown on Our Website. Your continued use of our Services after that shall be deemed acceptance by you of the changed Service, system and/or terms.
    7. The contract between us comes into existence only when we write to you to confirm that we agree to provide to you the Service you want. Your payment does not create a contract. If we decline to provide a Service we shall immediately return your money to your credit card.
    8. We do not offer the Services in all countries. We may refuse to supply a Service if you live in a country we do not serve.
    9. Some of our Services are now or may in future, be available to you only subject to additional terms. Those terms will be set out on Our Website. You now agree that if you choose to use any such service, the relevant terms will become part of this agreement.
    10. If we give you free access to a Service or feature on Our Website which is normally a charged feature, and that Service or feature is usually subject to additional contractual terms, you now agree that you will abide by those terms.
    11. We may change this agreement and / or the way we provide the Services, at any time. If we do:
      1. the change will take effect when we post it on Our Website.
      2. we will give you notice of the change by including the date of last change on our invoices. If you do not accept the change, you should not use Our Website or the Services.
      3. if you make any payment for Services or goods in the future, you will do so under the terms posted on Our Website at that time.
    12. Our contract terminates on the earliest of:
      1. our completion of any Work or Service for which you have paid us. If there is any doubt as to when this is, or was, then our decision is final;
      2. our having worked for the amount of time for which you have paid us, even if the Work is unfinished.
    13. You do not become a client for the time when after completion of one piece of work we start another. Each piece of Work is a new retainer which terminates when that Work is done. If we should give advice on the same subject at a later time, that advice constitutes a separate contract and does not retrospectively extend the first contract for our Services.
    14. There is no contract between us for any free Service, so you do not become a client by using any free Service and we are not liable to you in any way resulting from your use of any free Service.
    15. You agree that you are bound by these terms (or the latest version of them) for all future contracts with us, whether ordered through Our Website or in some other way.
  4. Price and payment
    1. Prices are inclusive of any applicable goods and services tax unless clearly stated otherwise.
    2. The Price of any Service may be changed by us at any time. But we will never change a Price so as to affect the Price charged to you at the time when you buy a Service.
    3. Charges for Services are fixed whenever it is reasonably possible for us to ascertain the price.
    4. When we do not provide fixed charges for the Service, we will charge by the hour. In that case all Work done, including all Documentation, letters, e-mails, faxes and telephone calls made and received will be charged on a time basis in minimum units of one quarter of an hour.
    5. Estimates of charges will be provided to you wherever possible.
    6. Payment will be due to us within fourteen days of your receipt of our monthly invoice.
    7. Payment may be made by any of the methods detailed on our invoice to you.
    8. If we do not receive payment within the period required, we shall stop Work until you have brought your payment up to date.
    9. It is possible that the Price may have increased from that posted on Our Website. If that happens, we will not provide the Services until you have confirmed that you wish to order at the new price.
    10. Bank charges by the receiving bank on payments to us will be borne by us. All other charges relating to payment in a currency other than Australian dollar will be borne by you.
    11. Any details given by us in relation to exchange rates are approximate only and may vary from time to time.
  5. Renewal payments
    1. At least two weeks before expiry of the period for which you have paid for a Renewable Service, we shall send you a message to your last known email address to tell you that your Renewable Service is shortly to expire and to invite you to renew. An invoice for the new period will be included.
    2. At any time before expiry of your Renewable Service, you may use the “Account” tab on Our Website to access your personal information and change your requirements for Renewable Services or cancel renewal.
    3. Changes to or cancellation of Renewable Services can also be requested by contacting us by any of the means listed at the web location referred to at the top of this document, however such requests do not take effect until we confirm receipt of your request.
    4. If you have provided credit card details, at least one day before expiry of your Renewable Service we shall automatically take payment from your credit card of the sum specified on the invoice sent earlier and shall confirm the renewal of your Renewable Service for a further period by sending you an email message.
  6. Service provision
    1. In order to provide the Services we may need specific help from you, as follows:
      1. access to alter the code of the pages of your website;
      2. access to third party and cloud services;
      3. access to alter DNS records for your domain;
      4. information and confirmation from you on any aspect of your business.
    2. The provision of our Service relies on a schedule of Work. If you are unable to provide us with acceptance or information we require for a period which extends the agreed timescale then we are entitled to payment in accordance with the schedule in any event.
    3. If we are not able to commence Work within 10 Days of the date of your order, we shall notify you by email to tell you the likely commencement date.
    4. If we have started to Work for you and you cancel this contract, you accept that you will be obliged to pay us for Work done, whether or not this Work is sufficiently advanced for you to be able to use it.
    5. You may not share or allow others to use the Services in your name without our express written permission.
  7. Foreign taxes, duties and import restrictions
    1. If you are not in the Commonwealth of Australia, we have no knowledge of, and no responsibility for, the laws in your country.
    2. You are responsible for purchasing Services which you are lawfully able to import or use and for the payment of import duties and taxes of any kind levied in your country.
  8. Dissatisfaction with the Services
    1. Our most important task is to ensure your absolute satisfaction. We will always strive to reach that target. However, we acknowledge that mistakes are made occasionally. This paragraph covers that possibility. If you are not wholly satisfied with the Service, please tell us at the earliest opportunity:
      1. exactly why you think we have failed;
      2. the date, if relevant, of the failure;
      3. when and how you discovered the failure;
      4. the result of the failure;
      5. your suggestion as to action we should take to resolve the situation and restore your faith in us.
    2. To do this, it is essential that you contact us by email at the contact point on Our Website.
    3. You now agree that you commit a breach of this contract if you seek repayment of money paid to us by asking your credit card provider to credit back a payment made to us, without attempting to seek repayment from us first. In that event, you agree that you will owe us first the sum charged to us by our payment service provider ($25 at 1st January 2018) and secondly a sum based on time spent at $175 per hour in dealing with your breach. You also agree that this provision is reasonable.
  9. Confidentiality
    1. Both parties are aware that in the course of our Work for you either of us will have access to and be entrusted with information in respect of the business and operation of the other and their dealings, transactions and affairs, all of which information is or may be confidential.
    2. We both now undertake for ourselves and every employee, or sub-contractor whose services we may use both during and after completion of the Work, that we will not divulge to any person whatever or otherwise make use of (and will use their best endeavours to prevent the publication or disclosure of) any trade secret or confidential information.
    3. For the purposes of your above undertaking, the information will be deemed to include all information (written or oral) concerning the Specification.
    4. Each of us now undertakes to the other to make all relevant employees, agents and sub-contractors aware of the confidentiality of information and the provisions of this paragraph and to take all such steps as will from time to time be necessary to ensure compliance by its employees, agents and sub-contractors with these provisions.
  10. Intellectual Property

    You agree that at all times you will:

    1. not cause or permit anything which may damage or endanger our title to the Intellectual Property;
    2. notify us of any suspected infringement of the Intellectual Property;
    3. indemnify us for any loss or expense arising from your misuse of the Intellectual Property;
    4. on the expiry or termination of this agreement immediately stop using the Intellectual Property except as expressly authorised by us in writing;
    5. not use any name or mark similar to or capable of being confused with any name or mark of ours;
    6. so far as concerns software provided or made accessible by us to you, you will not:
      1. copy, or make any change to any part of its code;
      2. use it in any way not anticipated by this agreement;
      3. give access to it to any other person than you, the licensee in this agreement;
      4. in any way provide any information about it to any other person or generally.
    7. not use the Intellectual Property except directly in our interest.
  11. Disclaimers and limitation of liability
    1. The law differs from one country to another. This paragraph applies so far as the applicable law allows.
    2. All implied conditions, warranties and terms are excluded from this agreement. If in any jurisdiction an implied condition, warrant or term cannot be excluded, then this sub paragraph will be deemed to be reduced in effect, only to the extent necessary to release that specific condition, warranty or term.
    3. Our Website and our Services are provided “as is”. We make no representation or warranty that the Service will be:
      1. useful to you;
      2. of satisfactory quality;
      3. fit for a particular purpose;
      4. available or accessible, without interruption, or without error.
    4. We claim no expert knowledge in any subject. We disclaim any obligation or liability to you arising directly or indirectly from information you take from Our Website.
    5. We make no representation or warranty and accept no responsibility in law for:
      1. accuracy of any content or the impression or effect it gives;
      2. delivery of content, material or any message;
      3. privacy of any transmission;
      4. third party advertisements which are posted on Our Website or through the Services;
      5. the conduct, whether online or offline, of any user of Our Website or the Services;
      6. failure or malfunction of computer hardware or software or technical equipment or system connected directly or indirectly to your use of the Services;
      7. any act or omission of any person or the identity of any person who introduces himself to you through Our Website;
      8. any aspect or characteristic of any goods or services advertised on Our Website.
    6. You agree that in any circumstances when we may become liable to you, the limit of our liability is the amount you have paid us in the immediately preceding 3 month period for the Services concerned.
    7. Except in the case of death or personal injury, our total liability under this agreement, however it arises, will not exceed the sum of $1,000. This applies whether your case is based on contract, tort or any other basis in law.
    8. We will not be liable to you for any loss or expense which is:
      1. indirect or consequential loss; or
      2. economic loss or other loss of turnover, profits, business or goodwill even if such loss was reasonably foreseeable or we knew you might incur it.
    9. This paragraph (and any other paragraph which excludes or restricts our liability) applies to our directors, officers, employees, subcontractors, agents and affiliated companies as well as to us.
    10. Nothing in this agreement will be construed as limiting or excluding our liability for death or personal injury caused by our negligence.
    11. Nothing in this agreement excludes liability for a party's fraud.
  12. Indemnity

    You agree to indemnify us against all costs, claims and expense arising directly or indirectly from:

    1. your failure to comply with the law of any country;
    2. your breach of this agreement;
    3. any act, neglect or default by any agent, employee, you or your customer;
    4. a contractual claim arising from your use of the Hosting Services;
    5. a breach of the intellectual property rights of any person.

    For the purpose of this paragraph you agree that the cost of our management and technical time is properly recoverable and can reasonably be valued at $175 per hour without further proof.

  13. Termination
    1. This agreement may be terminated:
      1. when the Work has been delivered to you.
      2. immediately by us if you fail to pay any additional sum due within 21 days of the date of submission of an invoice;
      3. immediately by either party if the other commits any material breach of any term of this agreement and which in the case of a breach capable of being remedied is not remedied within 30 days of a written request to remedy it;
      4. immediately by either party if a trustee receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration or bankruptcy order (otherwise than for the purpose of an amalgamation or reconstruction).
    2. In the event of termination by you, we are under no obligation to refund any payments made by you.
    3. There shall be no reimbursement or credit if we decide in our absolute discretion that you have failed to comply with any of the terms of this agreement.
    4. Termination of this agreement by this paragraph will be without prejudice to any other rights or remedies to which a party may be entitled.
  14. Miscellaneous matters
    1. You undertake to provide to us your current land address, e-mail address, telephone number as often as they are changed together with all information that we may require to enable us to fulfil our obligations under this contract.
    2. If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it will be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it will be binding in that changed or reduced form. Subject to that, each provision will be interpreted as severable and will not in any way affect any other of these terms.
    3. The rights and obligations of the parties set out in this agreement will pass to any permitted successor in title.
    4. If you are in breach of any term of this agreement, we may:
      1. publish all text and content relating to the claimed breach, including your name and email address and all correspondence between us and our respective advisers; and you now irrevocably give your consent to such publication.
      2. terminate your account and refuse access to Our Website;
      3. remove or edit content, or cancel any order at our discretion;
      4. issue a claim in any court.
    5. Any obligation in this agreement intended to continue to have effect after termination or completion will so continue.
    6. No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.
    7. When you visit Our Website or send messages to us by email, you are communicating with us electronically. We communicate with you by e-mail or by posting notices on Our Website. You agree that all our electronic communications satisfy any legal requirement that such communications be in writing.
    8. Any communication to be served on either part by the other will be delivered by hand or sent by registered post or recorded delivery or by email.

      It will be deemed to have been delivered:

      • if delivered by hand: on the day of delivery;
      • if sent by post to the correct address: within 72 hours of posting;
      • if sent by us via email to the address from which you last sent email: after 48 hours if no notice of non-receipt has been received by the sender.
      • if sent by you to the email address referenced at the top of these terms: after 2 complete business days
    9. In the event of a dispute between the parties to this agreement, then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation.
    10. This agreement does not give any right to any third party.
    11. Neither party will be liable for any failure or delay in performance of this agreement which is caused by circumstances beyond its reasonable control.
    12. In the event of any conflict between any term of this agreement and the provisions of the constitution of a limited company or any comparable document intended to regulate any other corporate or collective body, then the terms of this agreement will prevail.
    13. The validity, construction and performance of this agreement shall be governed by the laws of the State of Victoria.

© NL Document Library Ltd