Definitions

• "Billing Dispute" means a dispute relating to a Charge and/or an invoice issued by DoubleQ.
• "Business Day" means a day on which banks (as defined in the Banking Act 1959 (Cth)) are open for general banking business in Victoria, excluding Saturdays and Sundays.
• "CDN" refers to a Content Delivery Network.
• "Client" means the person or entity who ordered our services.
• "Co-Location" means the running of a client's equipment in the facilities of DoubleQ.
• "Commencement Date" refers to the date you accept these terms and conditions either by signing of the service agreement or proposal / quote.
• "Confidential Information" means the terms of this agreement and any information:
  • relating to the business and affairs of that party;
  • relating to the customers, clients, employees, sub contractors or other persons doing
  • business with that party;
  • which is by its nature confidential;
  • which is designated as confidential by that party; or
  • which the other party knows or ought to know, is confidential, and includes all trade secrets, know how, financial information and other commercially available information of that party.
• "Corporations Act" means Corporation Act 2001 (Cth).
• "Client Material" means any material provided by or to which access is given by the Client to DoubleQ for the purposes of this agreement including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, trademarks, logos, schedules and data stored by any means
• "Fees" means the fees specified on the Website as well as those agreed upon in this Service Agreement.
• "Force Majeure Event" means any occurrence or omission outside a party's control and includes:
  • a physical natural disaster including fire, flood, lightning or earthquake;
  • war or other state of armed hostilities (whether war is declared or not), insurrection, riot, civil commotion, act of public enemies, national emergency (whether in fact or in law) or declaration of martial law;
  • epidemic or quarantine restriction;
  • ionising radiation or contamination by radioactivity from any nuclear waste or from combustion of nuclear fuel;
  • confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government agency;
  • law taking effect after the date of this agreement; and
  • strike, lock-out, stoppage, labour dispute or shortage including industrial disputes that are specific to a party or the party's subcontractors.
• "Gigabyte" or "GB" means 1073741824 eight-bit bytes.
• "Initial Period" means the period from the Commencement Date until the date which is one calendar month after the Commencement Date.
• in the context of a person means:
• "Insolvency Event" in the context of a person means:
  • a liquidator, receiver, receiver and manager, administrator, official manager or other controller (as defined in the Corporations Act), trustee or controlling trustee or similar official is appointed over any of the property or undertaking of the person;
  • the person or the person's property or undertaking becomes subject to a personal insolvency arrangement under part X Bankruptcy Act 1966 (Cth) or a debt agreement under part IX Bankruptcy Act 1966 (Cth);
  • the person is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts within the meaning of the Corporations Act or is presumed to be insolvent under the Corporations Act;
  • the person ceases to carry on business; or
  • an application or order is made for the liquidation of the person or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the person, otherwise than for the purpose of an amalgamation or reconstruction.
• "Interest" means interest on any payment owing under this agreement calculated:
  • at the rate which is 2% in excess of the published Australia and New Zealand Banking Group Limited variable interest rate for personal loans or, if lower, the maximum rate permitted by applicable law; and
  • daily from the date on which such payment was due to the date on which the payment is made (both inclusive) including the relevant Interest.
• "DoubleQ" means Double Queue Pty Ltd of Victoria Australia
• "DoubleQ DaaS" means the delivery of Desktop as a Service, as labelled as the "DoubleQ DaaS".
• "DoubleQ Material" means any material provided by or to which access is given by DoubleQ to the Customer for the purposes of this agreement including documents, equipment, reports, technical information, studies, plans, charts, drawings,calculations, tables, schedules and data stored by any means.
• "Related Body Corporate" has the meaning given to that term by section 9 Corporations Act.
• "Rollover Period" means each period of one calendar month following the initial period or a Rollover Period.
• "Services" means any product(s) or service(s) the Client has signed up to use. This can include, but is not limited to, the provisioning of space on one of our servers, a connection to and from the internet for web, email and FTP functions, Virtual Private Servers and Cloud Infrastructure. These product(s) and service(s) are fully identified within the Service Agreement, or within the 'sign up' pages of our website.
• "Telecommunications Act" means the Telecommunications Act 1997 (Cth).
• "Term" means the term contemplated by clause 4.1.
• "Third Party" means any other party other than the Client and DoubleQ.
• "VPS" refers to Virtual Private Servers, which are provisioned as a fraction of a physical server, through the use of a Hypervisor and outlined on the Website.
• "Website" means the website located at doubleq.com.au as modified by DoubleQ from time to time.

Acceptance

• The client accepts these Terms and Conditions as well as our Privacy Policy and Fair Use Policy.
• The client acknowledges and agrees that they will receive email from DoubleQ regarding their service, company updates and any special offers/promotions.

Term

• The client agrees to a month to month contract term for Services unless otherwise stated in the product or service offering or otherwise agreed in writing. The month to month contract for services is automatically renewed each month in perpetuity subject to written cancellation by the client.
• Monthly services are established as part, thereof, signifying the beginning of a new month demotes commitment till the end of that monthly period.

Server Use

• DoubleQ reserves the right to refuse service and/or access to its servers to anyone.
• DoubleQ does not allow any of the following content to be stored or accessed on its servers or within any customer owned equipment connected to our network:
  • Illegal material, including copyrighted works, commercial audio, video, or music files, and any material of any type in violation of any Federal, State or Local law or regulation anywhere in the world.
  • Adult material, including pornography, erotic images, or otherwise lewd or obscene content of any type. What constitutes "adult material" is entirely at the discretion of DoubleQ.
  • Bittorrent.
  • Warez, including pirated software, ROMS, emulators, phreaking, hacking, password cracking. IP spoofing, etc., and encrypting of any of the above. Also includes any sites which provide "links to" or "how to" information about such material.
• You will comply, and will ensure that each of Your End Users complies, with the Fair Use Policy. You confirm that You have read and understood the Fair Use Policy prior to signing this Agreement.
• You acknowledge that DoubleQ may at any time amend the Fair Use Policy or cancel the Fair Use Policy and introduce a replacement Fair Use Policy and such amendment, cancellation or replacement shall be binding on You on and from the date that it is published on the DoubleQ web site

Availability of Services

• While DoubleQ will endeavour to provide continuous availability of all Services to the Client, DoubleQ will not be liable for any service interruptions or downtime.
• Scheduled maintenance will be performed at times which is deemed suitable by DoubleQ which has the least noticeable impact on the Client, and should it require the Services to be offline for greater than thirty (30) minutes, DoubleQ will post details of the scheduled maintenance at least two (2) days prior. You are required to raise any conflicts you may have with a scheduled maintenance window within one (1) day of the notification being sent.
• Unscheduled maintenance will be performed as required by DoubleQ and should the Services be offline for greater than thirty (30) minutes DoubleQ will post details of the maintenance and any updates until it has been completed.
• In some cases, DoubleQ will utilise the services of other providers, such as when overseas services are required. This is noted in the Service Agreement. DoubleQ has no direct control over all services provided by other providers and hence will not be liable for any service interruptions or downtime. DoubleQ will ensure that any such downtime is communicated to the client.

Charges

• The charges payable by you for the Services are payable in accordance with this clause 6 and as set out as in the relevant Specific Schedule(s), Order for Service or as otherwise agreed in writing between the parties from time to time
• Data Charges:
  • Traffic Charges are calculated in accordance with either of the following two options (as selected in the relevant Order(s) for Service or Specific Schedule):
    • Flat Rate, where the monthly Traffic Charges are fixed and do not vary in relation to traffic usage; or
    • Usage Based, where the Traffic Charges are calculated at the rates set out in the relevant Order(s) for Service or Specific Schedule and, in respect of each month during the term of this Agreement, shall be the greater of:
      • the amount specified in the relevant Order(s) for Service or Service Schedule as the Minimum Monthly Fee payable; or
      • the total amount calculated at the rate per Gigabyte specified in the relevant Order(s) for Service or Specific Schedule, for inbound traffic (i.e. traffic sent from the Servers network to Your network); and
      • the total amount calculated at the rate per Gigabyte specified in the relevant Order(s) for Service or Service Schedule, for outbound traffic (i.e. traffic sent from the Your network to DoubleQ's network).
  • For the purposes of determining the volume of inbound and outbound traffic, DoubleQ shall determine the volume of traffic calculated by the number of Gigabytes and the calculations of DoubleQ shall be final and binding on the parties.
• Power Charges:
  • In the case where a client has servers co-located within the facilities of DoubleQ, the client has been allocated a certain amount of power for each piece of equipment, as outlined in the relevant specific schedule.
  • If the client's equipment exceeds the amount allocated, the client will be asked to purchase additional power capacity to meet the requirements of their server. This will be billed at the same rate as specified in the relevant Specific Schedule.
• Access Charges:
  • Outside of the free monthly visits (if any) as specified in the relevant Specific Schedule, the Client will be charged at the rate outlined in the Specific Schedule for access to their equipment. Additional charges may occur for out of standard business hours.

Limitation of Liability

• DoubleQ shall not be liable to the Client for harm caused by or related to Client's Service or inability to utilise the Service unless caused by gross negligence or wilful misconduct.
• DoubleQ shall not be liable to the Client for lost profits, direct or indirect, special or incidental, consequential or punitive, or damages of any kind whether or not they were known or should have been known.
• Notwithstanding anything else in this agreement, the maximum aggregate liability of DoubleQ, any of its employees, agents or affiliates, under any theory of law shall not exceed a payment in excess of the amount paid by the Client for the Service in question for the six months prior to the occurrence of the event(s) giving rise to the claim.

Client General Warranties and Undertakings

• The Client warrants that they will keep any passwords or sensitive information used with the Service in a secure location.
• The Client warrants that they hold and will continue to hold the copyright for data stored on DoubleQ's servers, or that they are licensed and will continue to be licensed to use that data.
• The Client warrants that at the time of entering into this agreement they are not relying on any representation made by DoubleQ which has not been expressly stated in this agreement, or on any descriptions or specifications contained in any other document produced by DoubleQ.
• The Client warrants that all due care has been taken to ensure data integrity on DoubleQ's servers. This includes an undertaking that the Client will conduct computer virus scanning and other tests as necessary to ensure that the data uploaded by the Client onto or downloaded by the Client from the server does not contain any computer virus and will not in any way, corrupt the data or systems of any person.
• The Client agrees that they are solely responsible for dealing with anyone who accesses your data, and that you will not refer complaints or inquiries in relation to such access to DoubleQ.

DoubleQ General Warranties and Undertakings

• DoubleQ accepts liability for the supply of the Service to the Client to the extent provided in this agreement.
• DoubleQ does not warrant that:
• The Services provided within this agreement will be uninterrupted or error free;
• The Services will meet your requirements, other than as expressly set out in this agreement;
• The Services will not be subjected to external hacking attempts, viruses, worms, denial of service attacks, or other persons gaining unauthorised access to the Service or internal DoubleQ systems.
• DoubleQ does not make or give any express or implied warranties including, without limitation, the warranties of merchantability or fitness for a particular purpose, or arising from a course of dealing, usage or trade practice, with respect to any goods or services provided under or incidental to this agreement.
• No oral or written information or advice given by DoubleQ or its resellers, agents, representatives or employees, to the Client, shall create a warranty or in any way increase the scope of the express warranties hereby given, and the Client should not rely on any such information or advice.
• In no event will DoubleQ be liable to the Client for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.

Fees and Credit Management

• In relation to fees for Services:
  • Fees for Services ordered by the Client shall begin on the date of the initial order and shall be prorated to include all days until the first day of the next month, and the chosen billing cycle in advance. This may be monthly, quarterly, semi-annually, annually or biennially.
  • The first day of the month will serve as the anniversary date for all future billings including one time fees, upgrades, additional services, cancellations and service credits, unless the Services only allows annually or biennially billing cycles (eg. domain name registrations, etc).
  • Fees are due in advance of the billing cycle and will be invoiced to the Client seven (7) days prior to the due date. If a credit card is stored on file, it will be charged three (3) days prior to the due date, to allow sufficient time for any potential issues (such as insufficient funds, expired cards, etc) to be rectified before the due date.
  • All fees are due within the period specified on the invoice and as outlined in the relevant specific schedule.
• In relation to fees for DoubleQ DaaS:
  • Fees for services will be incurred on a monthly basis, beginning at the time of your first instance provisioning.
  • The first day of the month will serve as the anniversary date for all future billings, including one time fees, upgrades, additional services, cancellations and service credits.
  • Fees are payable in arrears, with the billing cycle beginning on the first day of the month, and ending on the last day of the month. Fees will be processed via Credit Card at the time of invoice generation (1st day of the month, for the previous month). If your Credit Card has insufficient funds, or has expired, you are expected to make alternate payment arrangements to pay the balance outstanding per the invoice sent to you.
  • If you do not make alternate arrangements to settle your account within 3 days of the balance becoming due (date of invoice issue), DoubleQ reserves the right to disable your account and suspend any currently running services.
  • Upon signup, your credit card will be billed $1.00 to validate the card. This will be credited to your first invoice.

Fees for upgrades to Services

• Upgrades ordered by the Client on the billing anniversary date will be billed for a full cycle and will continue each cycle on the anniversary date, unless the Services only allows annually or biennially billing cycles (eg. domain name registrations, etc).
• Upgrades ordered by the Client after the billing anniversary date will be prorated to the next anniversary date at the full monthly costs. Future fees will appear as the new plan from your existing anniversary billing date.
• Fees for upgrades will be payable within seven (7) days of the upgrade taking place. If a credit card is stored on file, it will be charged three (3) days prior to the due date, to allow sufficient time for any potential issues (such as insufficientfunds, expired cards, etc) to be rectified before the due date.
• Additional fees may be payable for upgrades where manual work is required by DoubleQ to process the upgrade request (eg. single hosting to reseller hosting, intercontinental transfers, inter-server transfers, etc).

Fees for downgrades to Services

• In relation to fees for downgrades to Services:
  • Downgrades will be processed when the request is received by DoubleQ from the Client, unless otherwise specified in the request.
  • A credit will be issued to the Client's account for the difference of any pro-rated pre-paid amount minus the cost of the new plan pro-rated on the chosen cycle.
  • A $15.00 administration fee may be charged for a downgrade request at DoubleQ's sole discretion. Additional fees may be payable for downgrades where manual work is required by DoubleQ to process the downgrade request (eg. reseller hosting to single hosting, intercontinental transfers, inter-server transfers, etc).
• Any fees paid for the setup or establishment of any Services will be automatically deemed as non-refundable.
• Fees for one-off Services including, but not limited to, dedicated IP address, SSL certificates and data blocks, are due within seven (7) of the invoice being issued and are non-refundable.
• All published prices are inclusive of any government taxes and charges, unless otherwise noted.
• The speed of provisioning new Services is reliant upon the Client having paid any and all outstanding fees in full.
• Failure to pay any fees may result in the account being referred to an external collection agency, which may include interest (calculated daily) and collection costs.
• Accounts that are more than three (3) days past the due date will automatically attract an overdue fee of $10.00 which will be payable on top of the invoice amount.
• Accounts that are more than seven (7) days past the due date will be automatically suspended, and a reconnection fee of $300.00 on top of any outstanding fees may apply to have the service restored.
• Accounts which are not paid in full within fourteen (14) days of the due date will be deleted from our servers.

Suspension and Termination of Services

• DoubleQ may suspend or terminate Services if:
  • The Client is found to be in breach of these terms and conditions;
  • The Client is found to be in breach of the Fair Use Policy;
  • The Client has become insolvent or bankrupt;
  • The Client has outstanding fees that are more than seven (7) days past the due date;
  • The Client has outstanding fees that are more than fourteen (14) days past the due date;
• From time to time DoubleQ may be required to suspend or disconnect Services without notice, or deny access to the Service during a technical failure, modification or maintenance. If a Client's Service is suspended for excessive resource usage in a shared environment they will be given three (3) formal written opportunities to rectify the issue before permanent suspension is applied.
• DoubleQ may decide at its sole discretion to advise a Client that their service will be terminated by giving thirty (30) days written notice. In this circumstance, DoubleQ will refund any prepaid fees for Services on the account.
• If a Client's account is closed for any reason, the Client must pay all outstanding charges by the due dates.
• DoubleQ is under no obligation to provide the Client with a copy of the data stored on our servers if Client has suspended or terminated access to the service for any breach of terms 13.1 "a" through "e". In this circumstance, a copy of the data may be provided to the Client for an additional fee.
• You acknowledge that it is reasonable in all the circumstances that DoubleQ retains a lien over your Assets in the event that this Agreement terminates and, on such termination, any moneys remain owing to DoubleQ under this Agreement. In that event, DoubleQ may retain the Assets until all moneys owing have been paid.
• All Assets must be collected from us within seven (7) days after the termination of your service to avoid a holding fee of up to the current average rack unit retail price.

Cancellation

• The Client can request cancellation of any Services with us for any reason by submitting a secure cancellation request.
• The Client agrees to immediately pay any and all outstanding fees upon cancellation of their Services.
• DoubleQ reserves the right to deny access to services or release data to a customer until the final balance has been paid.
• Cancellation requests must be received by DoubleQ four (4) days before the package renewal date. If cancellation is not received before this time, package renewal costs generated for the next period of time will remain outstanding.

Data Management

• DoubleQ acknowledges and agrees that it must attend to backups during the term of any Services with us and use its best endeavours to ensure the integrity and success of any backup

Changes

• DoubleQ may update these terms and conditions at any time. Should any change occur, we will advise the Client by email and note the specific changes which have occurred, and provide thirty (30) days notice before any changes are enforced.

Entire Agreement

• These terms and conditions constitute the entire agreement between DoubleQ and the Client, and it supersedes all prior oral or written agreements, understandings and representations

Governing Law

• The Client agrees to abide by all local, state and federal laws pursuant to the Services delivered by DoubleQ in Australia.
• The Client agrees that these terms and conditions are governed by the laws of VIC, Australia for Australian customers.

Indemnification

• The account holder agrees that it shall defend, indemnify, save and hold DoubleQ harmless from any and all demands, liabilities, losses, costs and claims, including legal costs (on an indemnity basis or solicitor/client basis, whichever is higher) claimed or asserted against DoubleQ, its agents, its account holders, officers and employees, that may arise or result from any service provided or omitted, performed or agreed to be performed or any product sold by account holder, its agents, employees or assigns.
• The account holder agrees to defend, indemnify and hold harmless DoubleQ against liabilities arising out of;
  • any injury to person or property caused by any products sold or otherwise distributed in connection with DoubleQ's servers;
  • any material supplied by the account holder infringing or allegedly infringing on the proprietary rights of a third party;
  • copyright infringement;
  • any defective products sold to account holder from DoubleQ's server and any defamatory or allegedly defamatory material on DoubleQ servers.
  • the negligence or intentional acts or omissions of any of You or Your officers, agents, employees or contractors;
  • your use of the Services;
  • any breach of the Fair Use Policy;
  • the transmission of or the presence of any illegal, fraudulent or offensive material by You (or any of Your End Users);
  • any breach of this Agreement by You; or
  • any wilful, unlawful or negligent act or omission of You (or any of Your End Users).

Access to Location

• You will use your best endeavours to give DoubleQ as much notice as DoubleQ requires of a request to enter the Location.
• In the case of failure of any Client Equipment requiring urgent repairs necessitating unscheduled access to the Location, You must notify DoubleQ as soon as practicable and make arrangements for access to the Location.
• DoubleQ may charge fees for access to the Location outside of the agreed complimentary monthly visits, as specified in the relevant Specific Schedule.
• You agree to comply with DoubleQ' security regulations and other local site operating policies and procedures as advised by DoubleQ to You from time to time.
• You and Your agents, employees and contractors must not interfere with or modify any equipment at the Location other than the Client Equipment.
• You and Your agents, employees and contractors must not cross-connect any of the Client Equipment with any other equipment at the Location without the prior written consent of DoubleQ (which is subject to Your agreement to pay additional Charges for such cross-connect Services) and the third party owner of such other equipment.
• You will be liable for any damage to other equipment by You, Your agents, employees or contractors.
• Unless You have Secure Access Status (which is personal to the Key Holder and cannot be assigned or delegated without DoubleQ consent.) You must be accompanied by an authorised DoubleQ staff member when accessing the Location, and may be denied access to the Location unless accompanied by such authorised DoubleQ staff member.

General Obligations

During the Term You will:

• provide, monitor and maintain your own network and network security on any directly attached or accessing network to the Service including VPN and internet access points;
• adhere to DoubleQ' operational procedures and technical specifications (where applicable) and any other reasonable directions given by DoubleQ in relation to Your obligations under this Agreement from time to time;
• not do, or permit to be done, any act which damages the reputation of DoubleQ;
• provide DoubleQ with all information, assistance and cooperation reasonably requested by DoubleQ in order to enable DoubleQ to meet our obligations under this Agreement including, without limitation, all information, assistance or cooperation required in relation to the resolution of any dispute between DoubleQ or any of our Related Bodies Corporate and any supplier or any other third party in relation to the Services;
• ensure that all equipment that You or Your End Users connection to the DoubleQ Network is appropriate, adequately maintained and meets minimum technical standards determined by the Australian Communications Authority;
• ensure that End User Contracts exclude DoubleQ (as Your supplier of the Services) from any liability to End Users;
• not represent expressly or by omission or implication that You are approved by, an agent of, or affiliated with DoubleQ;
• when dealing with End Users, not attribute blame for fault or other problems with the Services to DoubleQ; and
• take out, maintain and not void any insurances specified in the Service Schedule.

Acknowledgements

• You acknowledge that the DoubleQ network is not necessarily a secure and confidential method of communications and You shall transmit data on the DoubleQ network at Your own risk.
• You acknowledge that DoubleQ does not and cannot in any way supervise, edit or control the nature, content and form of any material available to be accessed through use of the Services and that DoubleQ is not responsible in any way for the nature, content and form of that material, access to that material or use of that material.
• You acknowledge that DoubleQ will not be responsible for ensuring that any material sent or received by means of the Services is sent or received correctly.
• You acknowledge that, to the extent permitted by law, DoubleQ makes no representations or warranties as to the effectiveness or fitness for purpose of any access restrictions, DoubleQ' network security or Your network security. You shall make no claim against DoubleQ concerning any access restrictions, DoubleQ' network security or Your network security.
• You agree not to disclose to any other person any identification or log-in information, whether in use or not, nor any other confidential information relating to the Services, other than to Your employees, agents and contractors who require this information to properly perform their function.

Fault Reporting

• Procedures:
  • During the Term You must report any faults in relation to the Services in writing to DoubleQ. You acknowledge and agree that DoubleQ will only respond to faults reported in accordance with these procedures.
  • DoubleQ reserves the right to charge You at our then commercial rates for fault restoration services if DoubleQ responds to a request from You and DoubleQ is able to demonstrate that:
  • the failure to provide the Service to You or in respect of any End User was not due to a matter for which DoubleQ is responsible; and
  • the fact that DoubleQ is not responsible for that matter would have been disclosed upon reasonable investigation by You.
• Fault Restoration Exclusions:
  • DoubleQ' fault restoration obligations do not extend to faults caused as a result of:
  • any fault in equipment, software or any network unit which does not form part of the network owned by DoubleQ or any of our Related Bodies Corporate;
  • damage due to causes external to the facilities used by DoubleQ to provide the Service;
  • interference;
  • Force Majeure; or
  • planned outages.

Compliance

• Privacy Obligations:
• You must comply with Your obligations under the Privacy Act.
• Without limitation, You must ensure that all personal information of End Users is handled in accordance with the Privacy Act.
• You shall also comply with any reasonable direction of DoubleQ with respect to the collection, use, disclosure, storage and disposal of personal information.
• Compliance:
  • Each party shall comply with all relevant local, State and Commonwealth laws and regulations and any registered industry based codes of practice.
  • Each party shall comply with the provisions of the Telecommunications Act and the Interception Act. In particular, You acknowledge that DoubleQ may be required to disclose information to comply with Part 13 of the Telecommunications Act. In such a case DoubleQ will use our reasonable endeavours to advise You of the information provided to the enforcement agency.
  • Each party must provide the assistance the other party reasonably requires to comply with relevant local, State and Commonwealth laws and regulations and any registered industry based codes of practice.

Taxes and Disputed Invoices

• Taxes:
  • All prices quoted for supplies made and/or to be made under this Agreement are in Australian dollars and are exclusive of GST, unless otherwise agreed to in writing.
  • If GST is applicable to any supply made by DoubleQ under this Agreement, DoubleQ is entitled to add to the amount otherwise payable an additional amount for the applicable GST.
  • You hereby agree to pay DoubleQ such GST charge in the same manner and at the same time as the payment for the relevant supply.
  • DoubleQ will issue tax invoices to You for the purposes of GST.
  • If required by applicable law, DoubleQ will give You an adjustment note arising from the adjustment event relating to a taxable supply made under, or in connection with, this Agreement within 30 days after the date DoubleQ becomes aware of the adjustment event.
  • For the purposes of this clause 25, "GST" means the Goods and Services Tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
• Disputed invoices:
  • In the event of a Billing Dispute, You may, by written notice provided to DoubleQ in accordance with clause 25, invoke the dispute resolution mechanism in this clause 25.
  • A Billing Dispute must be initiated only in good faith.
  • You must pay all undisputed amounts in the invoice containing the Charge that is being disputed in full in accordance with this Agreement.
  • DoubleQ is not obliged to accept a notice of a Billing Dispute in relation to an invoice unless You have complied with the above clause.
  • Subject all requirements of this clause being met, DoubleQ will investigate a Billing Dispute within 20 Business Days of receipt by DoubleQ of a Billing Dispute Notice in accordance with clause 25, and will report to You on our findings as soon as possible after completing such investigation.
  • .Where You are required to pay a previously disputed Charge that You withheld, You shall pay interest at the Interest Rate on any such amount. Interest shall accrue daily from the date on which each relevant amount was first withheld by You until the date it is paid in full to DoubleQ.
• Notification of Disputed Invoices:
  • You must notify DoubleQ of any Billing Dispute within 30 days of the date of receipt of the invoice to which the dispute relates (in relation to which time is of the essence) by submitting a completed Billing Dispute Notice to DoubleQ by email.
  • You must provide any further details reasonably requested by DoubleQ in relation to the Billing Dispute.
• Failure to notify DoubleQ
  • In the event that You do not:
    • notify DoubleQ of a Billing Dispute within the time period specified in clause 25(3); or
    • provide the requested additional information to DoubleQ within 14 days of receipt of DoubleQ' request for further information under clause 25(2); or
    • pay all amounts (excluding any disputed amounts, subject to Your compliance with clause 25) in the invoice to which the Billing Dispute relates by the due date,
    • then all amounts in the invoice to which the Billing Dispute relates will be deemed to be agreed and accepted by You and acknowledged as a debt due and payable in accordance with the terms of this agreement.

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These Terms and Conditions act in concert with the provided Services Agreement and in whole constitute the entire Agreement.

1. ENGAGEMENT

1.1 Scope of Engagement. Subject to the terms and conditions of the Services Agreement, Client hereby retains the services of DoubleQ to design, develop, and implement the Software in accordance with the specifications, requirements, and deliverables (“Scope”) and the time schedule described in the accompanying Services Agreement. DoubleQ may use employees and/or contractors capable of designing and implementing the Software. Client will cooperate with DoubleQ’s reasonable requests for information necessary to accomplish the tasks and objectives for completion of the Services. 1.2 DoubleQ’s Duties and Responsibilities. DoubleQ and Client will jointly define the Specification and DoubleQ will: (a) Perform the Work in accordance with the Specification; (b) use reasonable efforts to deliver the Software to Client by the delivery deadline set out in the Services Agreement. DoubleQ shall be responsible for delivering and performing only those professional services specifically identified in the Services Agreement. 1.3 Changes to Scope. In the event Client wishes to make any modification to the Scope, Client must provide a detailed proposal to DoubleQ in writing specifying the desired changes (“Change Request”). DoubleQ will evaluate each Change Request at its standard rates and charges. DoubleQ shall submit to Client a written response to each Change Request including any impact the proposed changes will have on the price, delivery dates, deliverables, or warranty provisions of the Services Agreement. Client shall use its reasonable efforts to accept, reject, or propose modifications to each such Change Request Response. 1.4 Support and Maintenance. Any support and maintenance services, updates, versions, or new releases shall be contracted under a separate agreement between the Parties. Maintenance and support rights or obligations for any third party products or equipment that are used in the Software and are available through the respective vendors or manufacturers of such content and equipment shall be assigned by DoubleQ to Client. 1.5 Marketing. Client grants DoubleQ the right to use Client’s name, service marks, and a description of its services in DoubleQ’s marketing materials or other written promotional campaigns. Either Party may elect to issue a press release related to this Agreement with prior approval from the other Party, which approval shall not be unreasonably withheld. 1.6 Independent Contractor. DoubleQ is not an employee of Client. DoubleQ shall not be eligible for any benefits given by Client to its employees. The Parties are and remain independent contractors. At its own expense, DoubleQ may use employees or subcontractors to develop the Software or otherwise complete the Work. Nothing in this Agreement will be deemed to create an agency, partnership, or joint venture between the Parties. Neither Party has authority to bind the other or incur any liability or otherwise act on behalf of the other Party.

2. CLIENT RESPONSIBILITIES

2.1 Assigned Tasks. Client agrees to perform all of the tasks assigned to Client as set forth in this Agreement and to provide all assistance and cooperation to DoubleQ in order to complete timely and efficiently the Work and execute all Change Requests. Client shall be responsible for making, at its own expense, any changes or additions to Clients’ current systems, software, and hardware that may be required to support operation of the Software.] 2.2 Acceptance Testing. Client shall make available such personnel as necessary for testing the Software and training users of the Software and prepare complete acceptance test data for testing the Software. 2.3 Lawful Purpose. Client will only use the Software for lawful purposes.

3. ACCEPTANCE OF SOFTWARE

3.2 Acceptance. Client will have the specified number of days following the date of delivery of the Software, as set forth in the Specification to inspect, test, and assess the Software and determine whether it satisfies the criteria in accordance with the Specification.

4. TERM AND TERMINATION

4.1 Term. This Agreement is effective as of the Effective Date and will continue in full force and effect until complete payment for the Work is received by DoubleQ, unless earlier terminated as provided in this Agreement. 4.2 Termination. Each Party may terminate this Agreement upon material breach by the other Party of one or more of the terms and conditions of this Agreement, provided that the breaching Party is notified in writing

5. CONFIDENTIALITY

5.1 Client’s Confidential Information. All information relating to Client that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by DoubleQ and will not be disclosed or used by DoubleQ except to the extent that such disclosure or use is reasonably necessary to the performance of the Work. 5.2 DoubleQ’s Confidential Information. All information relating to DoubleQ that is known to be confidential or proprietary, or which is clearly marked as such, will be held in confidence by Client and will not be disclosed or used by Client except to the extent that such disclosure or use is reasonably necessary to the performance of Client’s duties and obligations under this Agreement. 6.3 Survival. These obligations of confidentiality will extend after the termination of this Agreement, but will not apply with respect to information that is independently developed by the Parties, lawfully becomes a part of the public domain, or of which the Parties gain knowledge or possession free of any confidentiality obligation.

6. INTELLECTUAL PROPERTY RIGHTS

6.1 Work Made for Hire DoubleQ agrees that the development of the Software (but excluding DoubleQ Tools) is “work made for hire” and that the Software shall be the sole property of Client. “DoubleQ Tools” means the materials, information, trade secrets, generic programming codes and segments, algorithms, methodologies, processes, tools, data, documents, notes, programming techniques, reusable objects, routines, formulae and templates that: (a) are developed prior to the Software and utilized by DoubleQ in connection with the Software; (b) are designed to perform generalized functions not specific to the particular requirements of Client or the Software; (c) do not contain any of Client’s Confidential Information or other information or items provided by Client; and (d) cannot reasonably be expected to provide Client an advantage over its competitors. 6.2 Assignment. To the extent any Work performed by DoubleQ does not qualify as a “work made for hire” under applicable law, DoubleQ hereby irrevocably and unconditionally assigns to Client, without further compensation, all of its right, title and interest in and to the Software and any and all related patents, copyrights, trademarks, and trade names in Australia and elsewhere. This assignment is conditioned upon full payment of the compensation due to DoubleQ under this Agreement. To the extent any of DoubleQ’s rights in the Software, including without limitation any moral rights, are not capable of assignment under applicable law, DoubleQ hereby irrevocably and unconditionally waives all enforcement of such rights to the maximum extent permitted under applicable law. DoubleQ will assist Client in obtaining and enforcing patent, copyright and other forms of legal protection for the Software in any country. Upon request, DoubleQ will sign all applications, assignments, instruments and papers and perform all acts necessary or desired by Client to assign the Software fully and completely to Client and to enable Client, its successors, assigns and nominees, to secure and enjoy the full and exclusive benefits and advantages of the Software at no charge to Client; however, Client shall reimburse DoubleQ for reasonable out-of-pocket expenses.

7. WARRANTIES AND DISCLAIMERS

7.1 Software. The Software furnished under this Agreement is provided on an “as is” basis, without any warranties or representations express, implied or statutory, including without limitation, warranties of quality, merchantability or fitness for a particular purpose. Nor are there any warranties created by a course of dealing, course of performance or trade usage. DoubleQ does not warrant that the software will meet client’s needs or be free from errors or that the operation of the software will be uninterrupted. The foregoing exclusions and disclaimers are an essential part of the Agreement and formed the basis for determining the price charged for the Software. 7.2 Performance Standard. DoubleQ warrants the Work will be performed in a workmanlike manner, and in conformity with generally prevailing industry standards. Client must report any material deficiencies in the Work to DoubleQ in writing. Client’s exclusive remedy for the breach of this warranty will be the re-performance of the Work within a commercially reasonable time. This warranty is exclusive and is in lieu of all other warranties and any oral or written representations, proposals, or statements made on or prior to the effective date of this agreement. 7.3 No Infringement. DoubleQ warrants the Software will not infringe on any copyright, patent, trade secret or other intellectual property interest of any third party. DoubleQ will indemnify and hold Client harmless from and against all such infringement claims, losses, suits and damages including, but not limited to attorney’s fees and costs. Following any bona-fide claim of infringement, DoubleQ shall promptly correct the Software so as not to be infringing, or secure (at its own expense) the right of Client to use the Software without infringement. 7.4 No Third Party Warranties. DoubleQ makes no warranty of any kind, whether express or implied, with regard to any products, software, content, equipment, or hardware obtained from third parties. 7.5 no other warranties. The warranties set forth in this agreement are the only warranties granted by DoubleQ and DoubleQ disclaims all other warranties, express or implied, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose.

8. LIMITATION OF LIABILITY

Neither party will be liable to the other party for any indirect, incidental, consequential, special, punitive or exemplary damages arising as a result of or related to performance of the work or software, regardless of the type of claim and even if that party has been advised of the possibility of such damages, such as, but not limited to, lost profits, loss of revenue or anticipated profits or lost business. To the extent allowed by law, client will indemnify and hold DoubleQ harmless against any claims incurred by DoubleQ arising out of or in conjunction with client’s breach of this agreement, as well as reasonable costs, expenses, and attorney’s fees incurred therein.

9. GENERAL CONDITIONS

9.1 Excusable Delays. DoubleQ shall not be responsible for delays or failures in performance resulting from acts beyond the control of DoubleQ, including, without limitation, acts of God, strikes, riots, acts of war, epidemics, fire, communication and power line failures, earthquakes, and hurricanes. 9.2 Assignment. The rights, duties, and privileges of a Party to this Agreement shall not be transferred or assigned by it, in whole or in part, without the prior written consent of the other Party. If Client sells its business to a third party, such consent by DoubleQ will not be unreasonably withheld. 9.3 Entire Agreement; Amendment. These Terms and Conditions along with the Services Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto. This Agreement may not be amended except by a writing signed by an authorized representative of both Parties. 9.5 Severability. In case of any one or more of the provisions of this Agreement should be held invalid, illegal or unenforceable, each such provision shall be modified, if possible, to the minimum extent necessary to make it valid and enforceable, or if it cannot be so modified, then severed, and the remaining provisions contained in this Agreement shall not in any way be affected or impaired. 9.6 No Waiver. Neither Party’s failure to enforce strict performance of any provision of this Agreement will constitute a waiver of a right to subsequently enforce such a provision. No modification, extension or waiver of this Agreement shall be valid unless made in writing and signed by an authorized representative of the Party to be charged. No written waiver shall constitute, or be construed as, a waiver of any other obligation or condition of this Agreement. 9.7 Notices. All notices, demands or other communications required or permitted to be given under this Agreement by either Party to the other may be effected either by electronic mail, personal delivery in writing, by post registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the other Party at the address appearing in the introductory paragraph of this Agreement, but each Party may change such address by written notice in accordance with this paragraph. Notices delivered personally will be deemed communicated as of actual receipt. Mailed notices will be deemed communicated as of two (2) days after mailing. 9.8 Counterparts. The Parties may execute this Agreement in multiple counterparts, each of which constitutes an original as against the Party that signed it, and all of which together constitute one agreement. The signatures of all Parties need not appear on the same counterpart. The delivery of signed counterparts by facsimile, email or other electronic transmission that includes a copy of the sending Party’s signature is as effective as signing and delivering the counterpart in person.