By pressing the ACCEPT button you agree to be bound by the following terms and conditions (this "Agreement"), so please carefully review this Agreement before proceeding.
- A. Capital Numbers Australia Pty Ltd with the ABN: 85 607 559 795, from this point forward will be referred to as CNAU.
- B. CNAU provides Outsourcing Services, which includes placement of contractors and sub-contractors.
- C. This Agreement sets out the terms and conditions on which CNAU offers outsourcing services to you.
- D. The outsourced services which are the subject of this Agreement are the services selected by you on the previous page (Graphic Designer, Web Designer, Internet Marketer, App Developer and/or Managed Outsource Service.
- E. This agreement commences after the next business day following payment being received from you and a designated Outsourcing Service Team Member becomes available.
This agreement is governed by the laws of Queensland and the parties submit to the non-exclusive jurisdiction of the courts of that state. In the interpretation of this agreement:
- a) References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
- b) Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;
- c) Grammatical forms of defined words or phrases have corresponding meanings;
- d) Parties must perform their obligations on the dates and times fixed by reference to the capital city of Queensland
- e) Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
- f) If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;
- g) References to a party are intended to bind their executors, administrators and permitted transferees; and
- h)Obligations under this agreement affecting more than one party bind them jointly and each of them severally.
- i) Some of the terms used in this Agreement are defined in the Scope of Services form attached at Schedule A
- j) The following additional terms are defined:
"Your project(s)" is the information created, stored or supplied by CNAU pursuant to this Agreement, and includes all data and programs developed for you by CNAU on CNAU's computer system.
"Outsourcing Service(s)" is a service provided by CNAU to you in accordance with this Agreement.
"Price List" is the current price list or lists published by CNAU on its website for the services provided by CNAU.
"Your Representative" is a person nominated by you, your company or an entity authorized by you to act on your behalf.
“Outsourcing Service Team Member” is an employee, contractor, sub-contractor or a nominated third party supplied by CNAU to work with you as required.
2. Outsourcing Service
- a) The inclusions and details of CNAU’S Outsourcing Services are set out in our current Price List.
- b) Each Outsourcing Service offering includes the following standard features:
- i. Access to a dedicated team member of CNAU via E-Mail, Instant Messaging (IM), Video and/or Voice through IM software.
- ii. Each team member has a team leader appointed to act as a liaison between you and your remote employees.
- iii. You will receive daily, weekly or monthly updates sent to your primary email account summarising work carried out on your project(s).
- c) CNAU may add additional features to your Outsourcing Service without notice.
- d) CNAU may remove features from your Outsourcing Service after delivering to you seven (7) days written notice of our intention to remove those features.
- e) You are responsible for the quality of the directions you issue to the Outsourcing Service Team Member/s allocated to you and specified in Schedule B.
- f) You are responsible for allocation of tasks to the Outsourcing Service Team Member/s allocated to you and specified in Schedule B, unless agreed otherwise in writing.
- g) The allocation of tasks to Outsourcing Service Team Member/s must be within reason and not violate any rights, beliefs, or obligations that may be held by any Outsourcing Service Team Member individually or collectively.
3. Fees and Charges
- a) CNAU’s fees and charges are set out in our current Price List.
- b) As our fees vary between commercial enterprises and not-for-profit or community organisations, you are required to correctly describe your business when completing this Agreement.
- c) By the Agreement you agree to pay CNAU's fees and usage charges as set out on our Price List, for the Outsourcing Service(s) selected by you.
- d) CNAU will not provide the Outsourcing Service(s) pursuant to this Agreement until:
- i. the Agreement has been endorsed by you and by an authorised representative of CNAU; and
- ii. you have paid to us the applicable establishment fees and/or any "pay in advance" fees as set out in our current Price List
- e) CNAU will not refund the establishment fee or the "pay in advance" fees if you:
- i. Terminate this Agreement; or
- ii. Do not use any Outsourcing Services allocated to you.
- f) CNAU may vary its Price List at any time in accordance with clause 16 of this Agreement.
- g) Certain fees and charges are payable by you to CNAU in arrears. These fees and charges are set out in the current Price List and include our reasonable fees payable by you for extra hours or additional specialist support requested by you, and/or usage of services or skills that are not included in the current Scope of Services.
- a) CNAU will issue invoices / statements for all fees and charges that are payable in arrears.
- b) You agree to pay all invoiced amounts within 7 days of the date of the invoice.
- c) If you dispute an invoiced amount, you must notify CNAU in writing within 7 days of the date of the invoice, and the undisputed amount of the invoice must be paid as per clause 4(b) above.
- d) CNAU may charge you an administration fee, as specified in our current Price List, if a cheque presented by you, is not honoured or if an electronic or credit card payment made by you is declined.
- e) If an amount remains unpaid after the 7th day of each month, you will be required to pay the late fee, as specified in our current Price List, and your Outsourcing Service may be suspended or terminated if the whole or remainder of the invoice remains unpaid for 30 days.
5. Goods and Service Tax (GST)
- a) You must pay any GST payable on the supply of CNAU services.
- b) You must pay to CNAU any additional amount, which CNAU determines represents any GST payable by CNAU for which CNAU is not entitled to an input tax credit.
- c) tax credit.
"GST" means any goods and services tax or any similar tax which may be imposed in Australia and have application to the supply of CNAU services
- d) If GST is payable, it will be calculated by multiplying the amount payable for this supply by the prevailing GST rate.
- e) All of CNAU plan prices referred to on the Price List and on our invoices are marked GST inclusive where required.
6. Outsourcing Service Team Members
- a) A FULL TIME Outsourcing Service Team Member is contracted to complete a maximum of 160 hours per month.
- b) A PART TIME Outsourcing Service Team Member is contracted to complete a maximum of 80 hours per month.
- c) A CASUAL Outsourcing Service Team Member requires a minimum of 10 hours commitment from you.
- d) Outsourcing Service Team Members are generally available during Indian Standard Time on normal working days throughout the year.
- e) Outsourcing Service Team Members are not available on public holidays in the country of which they reside or during times of political or civil unrest.
- f) Outsourcing Service Team Members may request, within reason, additional time away from work throughout the month for personal reasons.
- g) Outsourcing Service Team Members will not attend work when they are suffering from an illness that prevents them from working. If extended periods of time are required for them to be unavailable a suitable replacement will be supplied.
- h) Outsourcing Service Team Members may participate in other events throughout the year that prevent them from working. The Outsourcing Service Team Member will give you notice of such events.
- i) Should Outsourcing Service Team Members not be available due to reasons specified in clauses 7.4-7.8 they will make up for said time within the next calendar month unless agreed to otherwise by both CNAU and you.
- j) Outsourcing Service Team Members are not able to work longer than 12 hours on any given day without prior approval from CNAU. Additional penalty rates will apply after the first 10 hours.
7. Use of our Services
- a) You and each of your internal employees must use CNAU's services in a responsible, cooperative and professional manner
- b) You are responsible for the content contained in any communication and end consumers project(s). CNAU does not exercise editorial control over your website.
- c) We prohibit the following acts (Prohibited Acts):-
- i. using a CNAU service for any illegal purpose;
- ii. knowingly transmitting a computer virus, worm or Trojan to disable a CNAU device;
- iii. using a CNAU service to publish, transmit or store any communication or data that is defamatory, obscene, sexually explicit, abusive or violates any federal, state or local law or regulation;
- iv. using a CNAU service to engage in misleading or deceptive marketing practices;
- v. use a CNAU service to conduct or promote a business that is illegal;
- vi. using a CNAU service to copy, store, distribute or transmit any work in violation of another's copyright, trade mark or moral rights; and
- vii. while using a CNAU service, impersonating another person or entity.
- d) Any attempt to do a Prohibited Act is a Prohibited Act.
- e) Knowingly permitting another to do a Prohibited Act is a Prohibited Act.
- f) You must not do any Prohibited Acts.
- g) You must instruct all of your employees that they must not do any Prohibited Acts.
- h) You are solely responsible for any of your employees (or any person using the User ID allocated to act on behalf of you) who does any Prohibited Act.
- a) CNAU and its respective suppliers retain ownership of no data provided by CNAU to you, including all intellectual property rights therein.
- b) CNAU has no ownership rights for any work completed for you or your clients.
- c) You warrant that any work completed for you does not and will not infringe the intellectual property rights of any other person.
- d) Without limiting clause 13.1, you indemnify, will defend and hold CNAU harmless from any claim, action, loss, damage, expense, or cost (including all legal costs and fees) arising out of or resulting from any claimed or actual intellectual property infringement by you or relating to work completed for you.
9. Suspension and Cancellation of Outsourcing Service
- a) You may cancel an Outsourcing service by notifying Capital Number in writing with at least fourteen (14) days notice, if the Outsourcing Service Team Member has been working with you for less than 6 months or thirty (30) days notice if the Outsourcing Service Team Member has been working with you for longer than 6 months.
- b) Without limiting CNAU's right to terminate under clause 6.3, CNAU may suspend or cancel a CNAU service, delete the Customer's information from CNAU's computer system, or prevent access to Customer's information, if:
- i. there is an emergency;
- ii. you do not pay an invoice on time;
- iii. you become bankrupt, insolvent or a receiver, manager or liquidator is appointed;
- iv. you or an employee of yours use of a CNAU's service interferes with the proper operation of CNAU;
- v. you breach this Agreement;
- vi. CNAU believes (whether this belief is reasonable or not) you or an employee of yours have performed or are attempting to perform a Prohibited Act;
- vii. NAU believes (whether this belief is reasonable or not) that your data infringes or may infringe another's intellectual property rights, is defamatory, or may involve CNAU in a legal dispute;
- viii. You bring legal action against CNAU;
- ix. Your level of use of a CNAU service is significantly greater than normal; or
- x. required to do so by law or a court order.
- c) Before suspending a service CNAU will attempt to give you prior notice of the suspension and will attempt to minimise inconvenience to you.
10. Limitation of Liability
- a) This clause limits CNAU’s liability in relation to this Agreement. Please read it carefully.
- b) To the maximum extent permitted by law, and at CNAU's option, you agree to limit CNAU's liability as the service provider to you and under this Agreement to:
- i. resupplying the service; or
- ii. paying for the resupply of the service up to the maximum value of the amounts paid to us by you for that service..
- c) To the maximum extent permitted by law, CNAU is not liable to you or any of your representatives:
- i. for any act or omission which CNAU does or fails to do in relation to this Agreement; and
- ii. for any loss or damage, whether direct or indirect or consequential, including time, money, good will, lost profits, damage to or loss of data, or damage to hardware or software, which may arise from the use, operation, maintenance or failed use of a CNAU's service or which may arise from delays, defects, errors, omissions or interruptions in a CNAU service.
- d) CNAU does not warrant the quality, accuracy or fitness for any particular purpose of a CNAU service.
- e) Due to technology, CNAU does not warrant that your project(s) will be accessible at all times or that any CNAU service will be uninterrupted or error free.
- f) You are responsible for:-
- i.obtaining, installing and operating the hardware and software to use and access CNAU's services.
- ii. the creation and modification of your project(s).
- iii. all approvals, consents and permissions necessary in relation to your website.
- iv. supplying and obtaining licenses where required for items that are going to be used on any work completed for you. This includes images, audio, video, specific hardware and specific software.
- g. You acknowledge that CNAU services are provided in part using third party services and products.
- h. You acknowledge that by CNAU's use of such third party services or products, if the service is restricted or interrupted, then the interruption may affect the provision of the CNAU's services to you.
- i. CNAU's is not liable to you for any service interruptions cause by third party service or product providers.
- j.CNAU does not own or control the Internet and is not responsible for Internet problems, faults or delays.
You indemnify, and forever hold CNAU harmless from any claim, action, loss, damage, expense, or cost (including all legal costs and fees) arising out of or resulting from:
- i. any action of, representation made by, or conduct of you and your representatives;
- ii. the storage, transmission, display, operation, failed operation or publication of your website, including the content and information provided on your project(s);
- iii. any breach of this Agreement by you;
- iv. any Prohibited Acts by you or your Representatives; or
- v. access to or use of a CNAU's service by you or your Representatives.
- vi. data loss of any kind.
12. Amendment and Variation
- a) The current version of this Agreement and associated Price Lists are available on-line at our website
- b) CNAU may vary the terms of this Agreement by written notice to you.
- c) If you object to the change in terms, you must notify CNAU in writing within 7 days of the change in terms, and cease using all services provided under this Agreement.
- d) If CNAU changes the Price List for any Outsourcing service(s) not used by you or if the change will not effect you, CNAU may not notify you.
- a) The parties must keep the terms of this agreement confidential, save for any necessary disclosure to their respective legal and financial advisers.
- b) Any work completed for you by Outsourcing Service Team Members will remain between you and CNAU.
- c) No information will be released to any member of the public, member within the business community or otherwise at any stage unless directed or approved by you in writing.
- d) You will not disclose, release, distribute, replicate, profit from or utilise proprietary methods (trade secrets) for production or otherwise that have been introduced to you by CNAU or an Outsourcing Service Team Member.
- e) CNAU will not disclose any information that relates to or identifies a particular customer unless ordered to do so by court order or required to do so by law.
- f) CNAU does reserve the right to publish work and claim development and design rights completed by Outsourcing Service Team Members if the job completed is a one off job. It does so at its own discretion.
- g) Direct employment of a CNAU employee
- h) If you or a representative of yours makes an offer of permanent employment or further projects or different assignments to a CNAU Employee who is performing an Assignment for you, be it in the past 12 months or in the present, which is accepted by that CNAU Employee, you must pay to CNAU 15,000.00 USD for each CNAU employee who has been employed by you.
- i) Upon termination of this Contract, you or a representative of yours cannot make an offer in respect of a contract, employment of any kind to a CNAU Employee who is performing an Assignment for you, whether it be in the past 12 months or in the present until after 24 months following the termination of this Contract.
- j) You cannot directly offer any contract or employment of any kind to a Capital Numbers Employee’s friends, family members, referrals and network to perform without the involvement and approval of CNAU.
- k) Exchanging and asking for any information relating to contract payments and remuneration between CNAU and its employees is strictly prohibited under this agreement.
- a) CNAU is not liable for any failure to comply with this Agreement if that failure is caused by an act beyond CNAU's reasonable control.
- b) You may not transfer or assign this Agreement or any service provided under this Agreement without CNAU's prior written consent
- c) CNAU may assign this Agreement to a third party without your consent.
- d) The cancellation or suspension of the Outsourcing service(s) does not effect the provisions of this Agreement regarding limitation of liability and indemnity.
- e) You may not set-off any claim against amounts payable to CNAU.
- f) CNAU may, but is under no obligation to, monitor your project(s) (including non-public sections) to ensure compliance with this Agreement and for any other reason considered appropriate by CNAU.
- g) You expressly permits and authorizes CNAU to furnish to you electronically or by any other means selected, information prepared by CNAU or by (or on behalf of) other entities, including advertising information and solicitations.
- h) No terms are implied into this Agreement. The only warranties and representations made by CNAU are those set out in this Agreement.
- i) CNAU is willing to enter into this Agreement only if you accept all the terms of this Agreement.
- j) If there is an express inconsistency between this document and a Schedule or Price List, then the Schedule or Price List will prevail.
- k) CNAU does not ship or post any item, products or physical goods out to a customer as a part of this service. It is an internet based service. Any costs associated with customers sending and receiving any media or items is born to the customer.
15. Dispute Resolution
If a dispute arises between the parties, the complainant must not commence any court or arbitration proceedings, except where that party seeks urgent interlocutory relief, unless it has first complied with this clause:
- (a) Notification
The complainant must inform the respondent in writing of the following:
- (i) The nature of the dispute;
- (ii) The outcome the complainant desires, and
- (iii) The action the complainant believes will settle the dispute.
- (b) Endeavour to resolve dispute
On receipt of the complaint by the respondent, both parties will make every effort to resolve the dispute by mutual negotiation within 14 business days.
- (c) Mediation
- (i) If the dispute is not resolved within 21 business days of the respondent receiving notice, either party may refer the dispute to mediation administered by the Australian Disputes Centre (ADC).
- (ii)The mediation must be conducted in accordance with the ADC guidelines for mediation operating at the time the dispute is referred to the ADC.
- (iii) The guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved.
- (iv) The terms of the guidelines are deemed incorporated into this agreement.
- (v) Each party must attend the mediation
- (vi) The parties are equally liable for the cost of mediation unless otherwise agreed upon in writing.
- (vii) Each party will pay their own cost of attending the mediation.
- (viii) This clause does not affect the rights of a party to the agreement to take legal proceedings under the agreement.
- d) Right to terminate
If the dispute has not been resolved after 30 days from commencement of mediation,
either party may request the mediator to terminate the mediation.
- e) This clause survives termination of this agreement.
16. Term and Termination
- a) This Agreement continues to have effect until it is terminated by either party as permitted herein or by written variation which has been endorsed by both parties.
- b) You may terminate this Agreement at any time by providing to us fourteen days written notice of your intention to terminate the Agreement.
- c) CNAU may terminate this Agreement:
- i. by providing two weeks written notice to you of our intention to terminate the Agreement;
- ii. immediately and without notice, if Customer breaches an essential term of this Agreement; or
- iii. if required by law or by court order.
- d) Upon termination of this Agreement, you will be provided with a final invoice for services provided to you up to the termination date.
- e) Any invoice that remains unpaid at the time of termination immediately become due and payable upon termination of this Agreement.
- f) On termination of this Agreement CNAU will delete any data pertaining to work performed by us from CNAU’s data management systems.
17. Entire agreement
This agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this agreement, and supersedes any
prior understanding, arrangement, representation or agreements between the parties as to the subject matter contained in this agreement.
18. Waiver and Amendments
Any waiver by any party to a breach of this agreement shall not be deemed to be a waiver of a subsequent breach of the same or of a different kind.
19. Events Beyond Control
Neither party shall be liable to the other party for any loss caused by any failure to observe the terms and conditions of this agreement, where such failure is occasioned by causes beyond its reasonable control including but not limited to by fire, flood, riot, strike, war, restrictions and prohibitions or any other actions by any government or semi government authorities.
20. Force Majeure
If any part of this agreement is to any extent invalid, illegal or unenforceable in a court of law, the remaining terms of this agreement will not be affected and will remain in full force.
If anything in this agreement is unenforceable, illegal or void, it is severed and the rest of the agreement remains in force.
A notice or other communication to a party must be in writing and delivered to that party or that party’s practitioner in one of the following ways:
- a) Delivered personally; or
- b) Posted to their address when it will be treated as having been received on the second business day after posting; or
- c) Faxed to their facsimile number when it will be treated as received when it is transmitted; or
- d) Sent by email to their email address, when it will be treated as received when it enters the recipient’s information system.