“Coherent” means Coherent Software Australia Pty Ltd ABN 15 068 209 576 trading as Coherent Digital.
“Contract” means the sale of Products by Coherent according to these Terms.
“Customer” means a person or Organisation to whom any quotation is made by Coherent, or any person or organisation that purchases Products from Coherent.
“Goods” means physical Products agreed to be supplied by Coherent to you from time to time under these Terms.
“GST” means any goods and services tax and any replacement or similar tax.
“Order” means any order for Products placed by you with Coherent, in whatever form.
“Organisation” means a company, incorporated body, club, trade union, educational institution, church, partnership, trust or any other organisation to whom any quotation is made by Coherent, or that purchases Products from Coherent.
“Product” means any Goods or Services available to be supplied by Coherent to you from time to time under these Terms.
“Services” are any action by a person, computer or network, any change in a database or information store, or any transaction involving the transfer of data that Coherent or its suppliers agree to perform for the Customer from time to time under these Terms.
“You” means the person consenting to these Terms with Coherent, either a Customer or a person representing the Customer.
2. Payment and Credit
Payment terms are subject to Coherent's credit approval. Coherent may require payment of a deposit before Coherent supplies Products or makes any preparation or provisioning for Products. At Coherent's discretion, the Customer may be required to provide credit references that are satisfactory to Coherent, or to pay the balance prior to despatch, installation or deployment. If credit is provided, the balance must be paid within 30 days.
3. Interest and costs
Coherent may charge interest at the penalty interest rate fixed by the Attorney General from time to time under the Penalty Interest Rates Act 1983 (Vic) plus 2% per annum on any outstanding amounts owed to it by the Customer. Coherent may also charge the Customer all enforcement costs (including legal costs and disbursements on a solicitor own client basis) incurred in connection with a breach of these Terms by the Customer.
4. Risk and title
Unless otherwise agreed in writing, all risk in and to Goods purchased shall pass to the Customer when the Goods are despatched for delivery to the Customer. Legal and equitable title in and to Goods shall not pass to the Customer until payment in full for all Goods is made.
Coherent’s rights under this clause 4 secure Coherent’s right to receive the price of the Goods at the times and in the manner specified in these Terms, and all other amounts owing to Coherent under any other contract or any other accounts including GST and interest.
The Customer must, forthwith upon the happening of any of the following events, notify Coherent of any:
- Statutory Demand under section 459(E) of the Corporations Act 2001 in respect of the Customer;
- application to wind up the Customer whether on a voluntary or involuntary basis;
- proposed resolution to wind up the Customer;
- proposal to appoint an administrator to or to execute a Deed of Company Arrangement in respect of the Customer;
- issue of a Bankruptcy Notice under section 41 of the Bankruptcy Act 1966 in respect of the Customer;
- application for a Sequestration Order under Division 2 of the Bankruptcy Act 1966 against the Customer;
- presentation of a Debtors Petition under Division 3 of the Bankruptcy Act 1966 by the Customer whether alone or jointly with another person or persons.
6. Limitation of Liability and Remedies
All Products, content, materials and information are provided “as is” without any representation or warranty of any kind, whether express, implied, statutory or otherwise with respect to them. Except to the extent prohibited by law, Coherent disclaims all warranties including implied warranties of merchantability, fitness for purpose and non-infringement.
Many Products offered by Coherent rely on the Internet. Coherent intends to provide reliable Products and will take commercially reasonable measures to enhance reliability. In the event of any failure, disruption or abnormally slow response, Coherent will take commercially reasonable measures to respond to a report from the Customer, to diagnose the problem and, where possible, to fix the problem. Coherent will take commercially reasonable steps to communicate with Internet providers and other suppliers to assist in finding and fixing a problem.
The Customer understands and agrees the Internet is complex. Diagnosing and fixing a problem may well be the responsibility of the Customer's Internet provider or some other third party and beyond the control of Coherent. Coherent makes no representations as to the level of reliability the Customer can expect.
Coherent will take commercially reasonable measures, as described in relevant product offerings, to secure from unauthorised third parties all Customer's data and digital property hosted on Coherent's servers. The Customer understands that all software has an "end of life" after which security updates are no longer available, exacerbating the risk of access and alteration of data by an unauthorised party. Should software approaching "end of life" be in use by any supplied Product, Customer will be notified and offered an alternative. The Customer agrees that, should the Customer decide to continue with the "end of life" Product against the advice of Coherent, Coherent bears no responsibility in the event of any malfunction or security breach related to that Product, and is under no obligation to supply a remedy or to assist in fixing any problems.
In no event will Coherent be liable for any loss or damage suffered by the Customer or any other person, including but not limited to: actual loss or direct damage, damage for loss relating to the Customer's procurement of substitute products, indirect, incidental, special, exemplary, economic or consequential damages, loss of profits, goodwill, data, revenue, damage to reputation or business interruption.
The Customer agrees to indemnify Coherent against any loss, damage, claim, proceeding and cost (including all legal costs on an indemnity basis), including as a result of a third party claim against Coherent, arising out of:
- the use or attempted use (including fraudulent use), by the Customer (or anyone with access to the Customer's account) of Products; or
- any allegation of passing off or trademark violation; or
- any information, data, images, graphics or material produced, stored, transmitted, accessed, downloaded or used by the Customer or any other person using Products; or
- any breach by the Customer of these Terms.
8. Right to vary or cancel Order
Coherent and its suppliers, in their sole discretion, expressly reserve the right to without notice or refund, delete, suspend, deny, cancel, modify, take ownership of or transfer the Order, or to publish, transmit, share Order-related data with any person or entity, or to contact any entity:
- to recover any payment from the Customer, for any service rendered by Coherent including services rendered outside the scope of this Contract for which the Customer has been notified and requested to remit payment; or
- to correct mistakes made by Coherent or its suppliers in processing or executing the Order; or
- in the case of any breach of these Terms; or
- if Coherent learns of a possibility of breach or violation of these Terms; or
- in the case of Termination of this Contract; or
- if Coherent learns of any such event which Coherent reasonably determines would lead to Termination of this Contract or would constitute a Breach thereof; or
- to protect the integrity and stability of Coherent and its suppliers' Products; or
- to comply with any applicable laws, government rules or requirements, requests of law enforcement, or in compliance with any dispute resolution process; or
- in accordance/compliance with any agreements executed by Coherent including but not limited to agreements with suppliers, and/or Customers and/or Resellers; or
- to avoid any liability, civil or criminal, on the part of Coherent and/or it suppliers, as well as their affiliates, subsidiaries, officers, directors and employees; or
- if the Customer and/or agents or any other authorized representatives of the Customer violate any applicable laws/government rules/usage policies, including but not limited to, intellectual property, copyright, patent, anti-spam, Phishing (identity theft), Pharming (DNS hijacking), distribution of virus or malware, child pornography, using Fast Flux techniques, running Botnet command and control, Hacking (illegal access to another computer or network), network attacks, money laundering schemes (Ponzi, Pyramid, Money Mule, etc.), illegal pharmaceutical distribution, or Coherent learns of the possibility of any such violation; or
- upon appropriate authorisation (what constitutes appropriate authorisation is at the sole discretion of Coherent) from the Customer or their authorized representatives; or
- if Coherent or its suppliers in their sole discretion determine that the information associated with the Order is inaccurate, or has been tampered with, or has been modified without authorisation; or
- if Coherent determines that the ownership of the Order should belong to another entity; or
- if the Customer does not comply with any applicable terms and conditions, standards, policies, procedures, and practices laid down by Coherent, its suppliers, ICANN, or a domain name Registry Operator; or
- for any appropriate reason.
Coherent and its suppliers also reserve the right to freeze the Order during resolution of a dispute. The Customer agrees that Coherent, its suppliers, and the contractors, employees, directors, officers, representatives, agents and affiliates, of Coherent and its suppliers, are not liable for loss or damages that may result from any of the above.
9. Illegal and Anti-Social Activities
The Customer agrees that they will not use a Product supplied or administered by Coherent for any purpose that is illegal under the law of the Commonwealth of Australia or the State of Victoria.
The Customer agrees that they will not use a Product supplied or administered by Coherent for the purposes of unsolicited commercial email (“spam”), pornography, online gambling, or other anti-social activities.
Coherent may immediately terminate these Terms if an Event of Default occurs. An Event of Default occurs if:
- the Customer fails to pay any monies due and that failure is not remedied within 14 days after receiving a notice from Coherent requesting the breach to be remedied; or
- the Customer breaches any other Term and does not remedy that breach within 14 days after receiving a notice from Coherent requesting the breach to be remedied; or
- the Customer becomes insolvent or bankrupt; or
- a notice of deregistration of defaulting party under section 601AA(5) or 601AB(5) of the Corporations Act is given to or in respect of a party; or
- a petition has been presented against the Customer, an order made, a resolution passed or a meeting summoned or convened to consider a resolution for its winding up.
In the event that the Customer purports to terminate an Order after acceptance of Coherent’s Quote, Coherent shall be entitled to accept that purported termination as a repudiation of the Order and shall be entitled to retain or charge to the Customer one third (33.3%) of the purchase price being a reasonable pre-estimate of its loss and damage plus a reasonable amount for work already undertaken.
Many Products provided by Coherent have a duration and will eventually expire.
The Customer acknowledges that it is the Customer's responsibility to keep records and maintain reminders regarding the expiry of a Product. As a convenience to the Customer, and not as a binding commitment, Coherent may notify the Customer, via an email message sent to the contact information associated with the Customer in Coherent's database, about the expiry of the Product. Should renewal fees go unpaid for a Product, the Product will expire.
The Customer acknowledges that after expiration of the term of a Product, the Customer has no rights on such Product, or any information associated with the Product, and that ownership of the Product now passes on to Coherent. Coherent and its suppliers may make modifications to the Product or make reasonable modifications to information associated with the Product.
Coherent and its suppliers and Service Providers may intercept any network/communication requests to the Product and process them in any manner at their sole discretion. Coherent and its suppliers may choose to display any appropriate message, and/or send any response to any user making a network/communication request, for or concerning the Product. Coherent and its suppliers may choose to delete said Product at any time after expiry at their sole discretion. Coherent and its suppliers may choose to transfer the ownership of the Product to any third party in their sole discretion. The Customer acknowledges that Coherent and its suppliers shall not be liable to Customer or any third party for any action performed under this clause.
Coherent at its sole discretion may allow the renewal of the Product after expiry, and such renewal term will start as on the date of expiry of the Product, unless otherwise specified. Such process may be charged separately at the price then prevailing for such a process as determined by Coherent at its sole discretion. Renewal after the expiry of the Product may not result in exact reinstatement of the Product in the same form as it was prior to expiry.
12. Intellectual Property
Any data or content created by the Customer or by clients of the Customer and processed or stored using Products supplied by Coherent is the property of the creator and Coherent makes no claim to intellectual property rights over such data.
Unless otherwise agreed in writing, Coherent retains all copyright in Products created by Coherent including software, scripts, artwork, design concepts and “look and feel”.
13. Acceleration of Payment
All money which the Customer owes Coherent for Products (including amounts which would not otherwise be payable until a later date) will become immediately due and payable if:
- the Customer is a company and an application is made to wind up the Customer, or;
- a Receiver, Receiver and Manager, Official Manager, Agent for Mortgagee or an Administrator is appointed in respect of any part of the Customer's property, or;
- an Inspector is appointed to investigate any of its affairs; or
- the Customer makes an arrangement or composition with its creditors or proposes to do so; or
- the Customer is unable to pay its debts as they fall due; or
- the Customer ceases or threatens to cease to carry on its business; or
- the Customer has execution levied against any of its assets; or
- has a mortgagee enter, or seek to enter into possession of any of its assets.
14. Authority to Agree
You warrant you have all requisite power and authority to execute, deliver and perform the Customer's obligations under this Agreement.
15. Delays, Omissions and Waivers
No failure on the part of any Party to exercise any power, right, privilege or remedy under this Contract, and no delay on the part of any Party in exercising any power, right, privilege or remedy under this Contract, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise or waiver of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy.
No Party shall be deemed to have waived any claim arising out of this Contract, or any power, right, privilege or remedy under this Contract, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument on behalf of such Party; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given.
No waiver of any of the provisions of this Contract shall be deemed to constitute a waiver of any other provision (whether or not similar), nor shall such waiver constitute a waiver or continuing waiver unless otherwise expressly provided in writing.
If any provision of this Contract shall be held to be invalid or in any way unenforceable, it shall be severed and the remaining provisions shall not in any way be affected or impaired and this Contract shall be construed so as to most nearly give effect to the parties’ intention when it was originally executed.
17. Force Majeure
Neither party shall be liable to the other for any loss or damage resulting from any cause beyond its reasonable control (a "Force Majeure Event") including, but not limited to, insurrection or civil disorder, riot, war or military operations, national or local emergency, acts or directives or omissions of government or other competent authority, compliance with any statutory obligation or executive order, strike, lock-out, work stoppage, industrial disputes of any kind (whether or not involving either party's employees), any Act of God, fire, lightning, explosion, flood, earthquake, eruption of volcano, storm, subsidence, weather of exceptional severity, equipment or facilities breakages / shortages which are being experienced by providers of telecommunications services generally, or other similar force beyond such Party's reasonable control, and acts or omissions of persons for whom neither party is responsible.
Upon occurrence of a Force Majeure Event and to the extent such occurrence interferes with either party's performance of this Contract, such party shall be excused from performance of its obligations (other than payment obligations) during the first six months of such interference, provided that such party uses best efforts to avoid or remove such causes of non performance as soon as possible.
These Terms will be governed by, take effect and be construed in accordance with the laws in force in the State of Victoria, and the parties submit to the exclusive jurisdiction of the Courts of that State.
19. Terms of Regulators
You agree that while you use Coherent's Products, you will comply with the terms of relevant regulators.
For domain names, while specific details vary depending on the regulator, it is common that you are required to:
- Choose a domain name closely related to an organisation or personal name, or a trademark
- Maintain an accurate whois record
Below are the regulators for some common domain names.
|.au||auDA (.au Domain Administration)|
|.com, .net, .org||ICANN|