BASIS OF AGREEMENT
Welcome to hellobiz.au.
HelloBiz carries on the business of providing business phone systems, call analytics, and related digital communications services (Services) via its website https://hellobiz.au/ (Website). The Service Provider has agreed to provide the Services to the Client, and the Client has agreed to procure the Services from the Service Provider in accordance with the attached standard terms and conditions and any Statement of Work agreed between the parties during the Term (which together form this “Agreement”). By clicking the tick box below or “I accept these Terms” on the Website, paying for your Statement of Work, or by otherwise accepting the benefit of any part of the Services under a Statement of Work, you agree to be bound by this Agreement, which is a binding contract between you (the person acquiring the Services) or the company you represent (Client), and the Service Provider.
1 HOW TO READ THIS AGREEMENT
1.1 MEANING OF CAPITALISED WORDS AND PHRASES
Capitalised terms have the meaning given:
(a) in the Statement of Work, if supplied;
(b) by the bolded and bracketed definitions immediately preceding a defined term; or
(c) in the definitions clause at the end of this Agreement.
1.2 ORDER OF PRECEDENCE
(a) Unless otherwise expressly stated, if there is any inconsistency between these terms and a Statement of Work, the terms here prevail.
(b) Any Special Conditions in a Statement of Work that replace or modify clauses will apply as indicated in the Statement of Work.
2 DURATION AND RENEWAL OF THIS AGREEMENT
(a) This Agreement starts on the date the Client accepts it and continues until terminated under Clause 11, unless extended by mutual agreement.
(b) The parties may agree in writing to extend this Agreement. If Services continue beyond any agreed end date, these terms extend to cover them.
(c) Each Statement of Work will have its own duration, and this Agreement applies to all.
3 ORDERING AND PERFORMANCE OF SERVICES
3.1 STATEMENTS OF WORK
(a) The Service Provider will provide the Services described in any Statement of Work in return for the Fees.
(b) The Service Provider may require deposits or payment in advance before commencing work, at its discretion.
3.2 ADDITIONAL STATEMENTS OF WORK
(a) Additional Statements of Work may be agreed during the Term.
(b) These terms apply to all Statements of Work.
(c) If Client requests additional services, the Service Provider will provide a quote via the Statement of Work format.
(d) If Client indicates in writing to proceed, that constitutes acceptance.
(e) Additional Statements of Work do not affect existing ones unless explicitly stated.
3.3 CHANGES / CHANGE IN SCOPE
(a) If the Client requests changes that alter the scope, a Change Fee may be charged.
(b) Schedules and deadlines may be modified in light of the changes.
(c) Changes are only effective if:
(i) Service Provider agrees in writing;
(ii) Client confirms in writing including acceptance of Change Fee;
(iii) Client pays the Change Fee.
3.4 DELIVERABLES AND ACCEPTANCE
(a) Client must notify Service Provider within 14 business days of delivery if there are concerns.
(b) If no notice is given, the Services are deemed accepted.
(c) Service Provider will perform the Services with due care, skill, and professionalism and comply with applicable legislation and standards.
3.5 KEY DATES AND TIMES
(a) Key Dates / Times in a Statement of Work are estimates.
(b) The Service Provider may reasonably adjust Key Dates / Times, notifying Client if variation exceeds 48 hours.
3.6 THIRD PARTY TERMS AND CONDITIONS
(a) Client acknowledges some services may rely on third party goods or services, which are subject to third party terms.
(b) Service Provider will inform Client of such terms. If Client does not object, Client is taken to have accepted them.
(c) If Client does not agree to third party terms, this may impact the ability to meet deadlines.
3.7 INFRASTRUCTURE / RECOMMENDATIONS
(a) Any advice or recommendations re: Client’s systems are based on info provided by Client and current best practice.
(b) Client must assess its own requirements.
(c) Client must comply with any regulations relevant to its business.
3.8 NO LEGAL OR FINANCIAL ADVICE
(a) Advice provided is general.
(b) Not to be treated as legal or financial advice.
(c) Client should seek specific advice separately.
(d) Client acknowledges they are responsible for implementing recommendations.
3.9 NO GUARANTEED OUTCOME
(a) Advice is opinion-based.
(b) No guarantee of third party decisions or results.
(c) Advice may change as new information arises.
(d) Service Provider not liable for Client / third party actions based on the advice.
(e) Client acknowledges they must use judgment.
3.10 DEPENDENCIES
(a) Service Provider’s performance may depend on Client or its personnel fulfilling their obligations.
(b) If Client fails, Service Provider may be relieved from obligation or liability to the extent performance is affected.
4 CLIENT OBLIGATIONS
4.1 PROVIDE INFORMATION
(a) Client must provide all required documentation, information, feedback in a timely manner.
(b) Client must liaise with Service Provider as reasonably requested.
(c) If feedback is delayed, Service Provider is not responsible for resulting delays.
(d) Information provided must be accurate, up to date and compliant with applicable law.
(e) Client releases Service Provider from liability for losses caused by incorrect or incomplete info from Client.
4.2 ACCESS
The Client shall provide access to:
(a) its premises / personnel where needed;
(b) systems or websites if the Service involves making changes;
(c) any third party accounts, login credentials, etc. as required.
4.3 ACCESS TO PREMISES
(a) Client shall provide access to locations where Services are to be performed.
(b) Obtain necessary approvals / permissions (e.g. building, strata).
(c) Facilitate inductions / safety training etc.
(d) If access is impeded by Client’s omission, Client may be liable for costs (travel, lost time).
(e) Premises must be safe; comply with health & safety laws.
4.4 INSURANCE
(a) Client to insure itself against its risks under this Agreement.
(b) Maintain insurance appropriate for its business (liability, professional indemnity etc.).
4.5 COMPLIANCE WITH LAWS
(a) Client will not request Services that breach any laws or privacy regulations.
(b) Client will not infringe third party IP or confidentiality duties.
5 FEES AND PAYMENT
5.1 FEES
(a) Client to pay Fees as set out in the Statement of Work by the Due Date(s).
(b) Fees are non-refundable to the extent permitted by law.
(c) If no Due Date specified, payment is due on receipt of invoice.
5.2 INVOICES
Service Provider will issue tax invoices; Client must pay according to invoice instructions.
5.3 SUSPENSION OF SERVICES
Service Provider may suspend all or part of the Services if Client fails to pay by due date.
5.4 EXPENSES
Unless otherwise agreed, Client bears reasonable travel, accommodation, stationery, third-party costs arising in performance of Services.
5.5 GST
Unless stated otherwise, amounts exclude GST. Client will pay GST when applicable, upon valid tax invoice.
5.6 CARD SURCHARGES
Service Provider may charge surcharges for payments via credit/debit cards.
5.7 LATE PAYMENT
If payment is late:
(a) Service Provider may suspend Services;
(b) may engage collection;
(c) interest at a rate (e.g. 10% p.a.) from due date until payment;
(d) Client to reimburse costs incurred in recovery.
6 CONFIDENTIALITY AND PRIVACY
6.1 PRIVACY
(a) Parties must comply with the Privacy Act 1988 (Cth) if applicable; Client also to abide by Service Provider’s Privacy Policy. HelloBiz has a Privacy Policy. hellobiz.au
(b) Service Provider will notify of changes to its Privacy Policy.
6.2 CONFIDENTIAL INFORMATION
Neither party will disclose Confidential Information except:
(a) with written consent;
(b) as required by law; or
(c) to personnel who need to know for performance of obligations.
6.3 BREACH
If a suspected breach arises, the party will immediately notify the other and take steps to remedy / mitigate.
6.4 PERMITTED USE
Each party may use the other’s Confidential Information only to perform obligations or exercise rights under Agreement.
6.5 RETURN / DESTRUCTION
Upon termination, return or destroy Confidential Information of the other when requested.
6.6 ADDITIONAL DISCLOSEES
Ensure personnel / subcontractors keep info confidential; may need them to sign confidentiality documents.
7 INTELLECTUAL PROPERTY
7.1 DEFINITIONS
- Existing Material: materials owned by a party prior to this Agreement.
- New Material: materials created during the Term for this Agreement.
- Material includes software, documentation, designs, inventions etc.
7.2 EXISTING MATERIAL
(a) Each party retains ownership of its Existing Material.
(b) Client grants Service Provider a licence to use Client’s Existing Material as needed.
(c) Client warrants that using its Existing Material won’t infringe third party rights; indemnifies Service Provider if it does.
(d) Service Provider grants Client a licence to use its Existing Material only to the extent incorporated into New Material and needed for Services.
7.3 NEW MATERIAL
(a) By default, ownership of New Material vests in the Service Provider unless otherwise agreed in Statement of Work.
(b) Service Provider grants Client a licence to use New Material to the extent reasonably required to receive benefit of the Services.
7.4 THIRD-PARTY INTELLECTUAL PROPERTY
Service Provider warrants that provision and Client’s use of the Services (for their intended purpose) will not infringe third party IP rights.
8 WARRANTIES
(a) To the extent permitted by law, disclaim any implied warranties not expressly stated.
(b) Nothing in Agreement intends to limit statutory guarantees under Australian Consumer Law.
9 LIABILITY
9.1 LIMITATION OF LIABILITY
(a) Except as required by law, total liability of either party is limited to the amount paid by Client to Service Provider in the preceding three months before the event that gives rise to liability.
(b) This limitation does not apply for liability related to breach of confidentiality, IP, fraud, wilful misconduct etc.
9.2 ** CONSEQUENTIAL LOSS**
Neither party is liable for indirect or special loss (loss of profits, business opportunity etc.), except in cases which cannot be excluded under law (personal injury, death, etc.).
10 DISPUTE RESOLUTION
(a) If dispute arises that can’t be resolved informally, the parties will attempt mediation in good faith, sharing costs equally.
(b) If mediation fails, proceed to arbitration or other agreed dispute resolution method.
(c) Either party may seek injunction if required.
11 TERMINATION
11.1 TERMINATION FOR CONVENIENCE
(a) Either party may terminate for any reason by notice.
(b) Notice period of ten (10) Business Days unless otherwise agreed.
(c) Service Provider will invoice for Services up to termination date, pre-approved costs, and any genuine losses from Client’s termination (if applicable).
(d) Client must pay Outstanding Amounts by the End Date.
(e) Upon payment, Service Provider must hand over completed deliverables.
(f) If terminated by Service Provider, reasonable effort to hand over remaining scope so Client can engage alternative provider.
11.2 TERMINATION FOR BREACH
(a) If one party believes the other has breached, give notice describing the breach.
(b) Give the breaching party opportunity (e.g. 10 Business Days) to remedy.
(c) If not remedied, terminating party may give notice of termination for breach.
(d) After such notice, work stops unless otherwise agreed.
(e) Disputes under this clause handled per the Dispute Resolution clause.
11.3 OTHER CONSEQUENCES OF TERMINATION
(a) Return or destroy property / Confidential Information.
(b) Survive obligations that by nature survive (IP, confidentiality, etc.).
(c) Stop using any licensed materials not owned.
11.4 APPLICATION TO STATEMENTS OF WORK
(a) Same rights/responsibilities apply to each Statement of Work.
(b) Termination may be for a single Statement of Work or the whole Agreement.
(c) Termination of one Statement of Work doesn’t necessarily affect others unless stated.
12 FORCE MAJEURE
(a) An event beyond control (natural disasters, strikes, pandemics, governmental actions) prevents performance (excluding payment obligations).
(b) Affected party must promptly notify the other party in writing of the event and expected impact.
(c) Obligations suspended to the extent affected.
(d) Affected party uses best endeavours to resume performance.
13 NOTICES
(a) Any required notices must be in writing and sent via email (addresses set in Statement of Work or otherwise agreed).
(b) If no email address is specified, use the email used between parties in past correspondence.
(c) Notices are deemed delivered 24 hours after sending unless email fails.
14 GENERAL
14.1 Governing Law and Jurisdiction
This Agreement is governed by the laws of Victoria, Australia. Client and Service Provider submit to the exclusive jurisdiction of Courts in Victoria.
14.2 Business Days
If an act must be done on a non-Business Day, it is due next Business Day, unless Agreement states otherwise.
14.3 Amendments
May only be amended in writing signed by both parties.
14.4 Waiver
A waiver must be in writing.
14.5 Severance
If any provision is found invalid, the rest remains effective.
14.6 Joint & Several Liability
If more than one Party, obligations are joint & several.
14.7 Assignment
No assignment without written consent.
14.8 Counterparts
May be executed in counterparts; all counterparts form one agreement.
14.9 Costs
Each party pays its own costs of negotiating and executing this Agreement unless otherwise agreed.
14.10 Entire Agreement
This document + any Statements of Work form the entire Agreement. Supersedes prior negotiations, representations, etc.
14.11 Interpretation
(a) Singular/plural includes the other.
(b) Gender expressions inclusive.
(c) Defined terms in all forms.
(d) “Person” includes all entities.
(e) “Party” includes successors, permitted assigns.
(f) References to clause, schedule etc include attachments.
(g) “Includes” isn’t limiting.
(h) Headings / bold / formatting for convenience only.
15 DEFINITIONS
- ABN: Australian Business Number
- ACN: Australian Company Number
- Business Day: a day other than Saturday, Sunday, or a public holiday in Victoria, Australia, when banks are open for general business.
- Client: person or entity using or purchasing the Services.
- Confidential Information: information (written, oral or digital) that is disclosed by one party to the other that is by nature or designation confidential, excluding information already public without breach.
- Fees: amounts payable by Client to Service Provider per Statement of Work.
- Intellectual Property Rights: include copyright, patents, designs, trademarks, trade secrets, domain names etc.
- Existing Material: Material owned or controlled by a party before the Agreement or independently of it.
- New Material: Material created or developed under this Agreement for its purposes.
- Material: tangible & intangible information, documents, reports, software etc.
- Statement of Work: document signed by both parties specifying Services, Fees, Key Dates and any Special Conditions.
- Services: the business phone, call analytics, communications, digital services product(s) or software etc supplied by HelloBiz pursuant to a Statement of Work.
- Term: period from acceptance of this Agreement until termination as per Clause 11.
