This is a legal agreement between you and Vanilla Networks. This Agreement replaces any prior written or oral agreement between the parties.
By making at least one payment to Vanilla Networks for our services, you agree to the following Terms and Conditions of Service. If you do not wish to be bound by the terms and conditions of the Agreement, you MUST NOT submit an order to, agree to or allow any service to be provided by, or otherwise make any purchase from, Vanilla Networks.
"account" means all aspects of the Service provided to you under this Agreement.
"Agreement" means these Terms and Conditions of Service.
"Claim" means any action, claim, demand, cost, loss, damage, (whether special, indirect, consequential, general or any other damage), expense or other liability (including for death and injury, and the costs of defending or settling any Claim) whether arising in contract, negligence or any other tortious action.
"Confidential Information" means information or material:
but does not include any information or material:
"days" means calendar days unless explicitly stated otherwise.
"Direct Customer" means any person who pays you directly for your service (the service we are providing support for). Direct Customers include your resellers, but not the clients of your resellers.
"Fixed-Price Project" means a Service Plan with a defined scope and an agreed total price.
"Force Majeure" means circumstances beyond the control of a party which includes (but is not limited to) acts of God, perils of the sea or air, fire, flood, drought, explosion, sabotage, accident, embargo, riot, civil commotion or civil authority, including acts of local government and parliamentary authority, materials, breakdown of equipment and labour disputes of whatever nature and for whatever cause arising including (but without prejudice to the generality of the foregoing) work to rule, overtime bars, strikes and lockouts and whether between either of the parties hereto and any or all of its employees and/or any other employer and any or all of its employees and/or between any two or more groups of employees (and whether of either of the parties hereto or any other employer), acts of war (declared or undeclared) or terrorism.
"person" includes an individual, a body corporate, office, commission, authority, committee, tribunal, board, institute, organization or other body however described.
"Phone Provider" means a third-party entity which provides phone services, phone hardware, phone numbers, telecommunications services, point-to-point protocol services, voice over IP (VOIP) services or other voice-related communications services of any kind.
"Phone Support" means our team answering your customers' questions on your behalf via inbound phone calls from your customers.
"project milestone" means a recognisable or agreed point of progress in the course of completing a Fixed-Price Project.
"Quote Reference Number" means the code we have provided to you to uniquely identify your specific Fixed-Price Project and the quote related to it;
"section" means a sequential collection of sub-sections within this Agreement. Each section commences with a bold upper case heading.
"Service" means the provision to you, by us, of labour-based and IT-enabled services, and all associated systems and software.
"Service Plan" means the service plan or package you have purchased from us, as advertised on our website.
"sub-section" means a collection of statements (clauses) within this Agreement which are grouped under a single heading marked in bold with leading capital letters;
"Vanilla Networks", "we", "our" and "us" means Vanilla Networks Pty Ltd trading as Support Resort (ABN 94 098 484 934), a company incorporated under the Corporations Act 2001.
"website" means any pages, material, content, software or systems made available through the supportresort.com domain name, including all subdomains (such as "www.supportresort.com" and "hub.supportresort.com").
"you" and "your" means the entity that agrees with Vanilla Networks to use the Service. If you provide a business name on the order form, then that business is the entity which agrees with Vanilla Networks to use the service and the person(s) who complete the order form on behalf of that entity warrant(s) that he/she/they are duly authorised by the entity to enter into this legally binding agreement on behalf of the entity. If a business name was not provided on the order form, then the individual person(s) named on the order form is/are bound by this agreement and the order form must only be submitted by the named person(s).
This section applies to all Service Plans.
You confirm that the details you have provided to us when placing your order(s) with us are true, complete and correct.
We reserve the right to decline your order at any time and for any reason. If your order is declined then we will refund any unused portion of any payment you have made to us for the declined order within seven days of declining the order.
You acknowledge that certain limits to the scope of our service apply to all our Service Plans and you agree that we shall not under any circumstances be obliged to carry out work of any type that is not explicitly included in your Service Plan as advertised on our website.
Each party will maintain all Confidential Information of the other party in strict confidence and will not at any time or for any reason disclose any Confidential Information of the other to any third party without the disclosing party's prior written consent.
Neither party will use any Confidential Information of the other for any purpose whatsoever except in performing its duties and exercising its rights under this Agreement.
Neither party will disclose any Confidential Information of the other to any of its agents or employees who do not participate directly in the performance of its duties or exercise of its rights under this Agreement, and each party will advise its employees who are permitted access to any Confidential Information of the other party, of the restrictions on disclosure and use set forth in this Agreement.
Notwithstanding the foregoing, either party may disclose the Confidential Information of the other if it believes in good faith that any applicable law, rule, or regulation requires the disclosure, provided that it makes a reasonable effort to give the disclosing party as much advanced notice as may be practicable.
On termination or expiration of this Agreement, each party will return or destroy all Confidential Information obtained from the other party and copies thereof.
Either party may use for any purpose without obligation to the other party, information (other than Confidential Information) in non-tangible form, which may be recalled by persons who have had access to the Confidential Information, and which results from work with the Confidential Information.
You agree that, if you dispute any payment(s) made to us, then we will have the right to disclose any information we see fit to any financial service provider(s) involved in processing each disputed transaction, and that the Confidential Information provisions in this Agreement do not apply to our communications with those entities.
Nothing in this Clause will prohibit or restrict our right to provide the same or similar products or services furnished hereunder to other parties. You acknowledge and agree that the restrictions on Confidential Information contained in this Agreement shall not apply to the general knowledge, skills and experience gained by us or our employees while engaged by you.
This sub-section applies to any computer program(s), computer code, website design(s) or graphic design(s) we produce for you in relation to your Service Plan if and only if the Service has been paid for in full. Such works are your property subject to the following restriction:
You agree to indemnify us, hold us harmless and defend us at your own expense from and against any and all Claims for infringement of copyright, patents, trade marks, industrial designs or other intellectual property rights issued under the laws of any country where:
You further agree not to provide us with any item nor ask us to download/access/copy/use any item, including but not limited to images, software, computer code and written material, unless you have the legal right to use those items for the purpose our work relates to.
We undertake to give you prompt notice of any Claim described above that is made against us or any of our subsidiaries, dealers or customers and you will forthwith defend any such Claims and make settlements thereof at your own expense.
You acknowledge that any and all of the copyright, patents, trade marks, industrial designs or other intellectual property rights used or subsisting in or in connection with our business, marketing and/or support material relating to our business and all documentation and manuals relating thereto are and will remain our property and you will not, during or at any time after the expiry or termination of this Agreement, in any way question or dispute the ownership by us thereof.
You will not, during or after the expiry or termination of this Agreement, without the prior written consent of us, use or adopt any name, trade name, trading style or commercial designation that includes or is similar to or may be mistaken for the whole or any part of any trade mark, trade name, trading style or commercial designation used by us.
When carrying out design work, unless otherwise instructed by you, our designers will incorporate licensed images from third party image vendors into their designs at no extra charge. However, the following limits apply to the number of stock photographs (or other third-party images) which we will download for use in your project(s):
Daily limits may also apply at our discretion.
Licensing restrictions apply to most images used in website and graphic design work. You must not re-use the images for any other purpose and must not redistribute the images in any way, shape, or form, nor use the images in website templates or any other product or service for multiple re-sale, unless you have our express written permission to do so. Such permission can only be obtained by contacting us through our contact form in the Hub (https://hub.supportresort.com) and cannot be given by your assigned staff.
Where relevant, you agree to provide us with sufficient detail about, and access to, your services, policies and systems to enable us to provide the Service to you and, if applicable, your customers.
Except for the Service itself, You will not directly or indirectly, during this Agreement and for a period of two years after its expiry or termination solicit, engage, employ, contract or otherwise work in any manner with any person who is or was employed or engaged by us (including our subsidiaries). This obligation applies not only to you but also to each of your Directors and principals (where existent). In the event that You or one or more of Your Directors or principals breaches this sub-section, then You agree to pay us a fee of US$25,000 for each breach (that is, once for each employee) plus any legal costs incurred by us in recovering such fees from you.
You acknowledge that the two-year period mentioned above is no greater than is reasonably required to protect the goodwill in the business.
You must keep confidential, all passwords created or used in relation to the Service.
You must not:
All passwords provided by you to us are kept confidential. Passwords are only provided to our employees on a need-to-know basis.
We reserve the right to assign staff to shift times as we see fit.
You acknowledge that, unless otherwise specified in your Service Plan's details on our website, it is our company policy for all staff to rotate shifts once per month and that therefore the daily work period of each individual staff member will vary from month to month. Shift rotations occur around the same date of each month so the first shift rotation may occur at any time during your first month of service and then will generally occur at approximate one-month intervals after that.
We endeavour to provide stable staffing but, unless you have purchased a Service Plan which explicitly provides the services of a specific staff member:
For each payment you make, we have the sole right to decide which due amount(s) to apply the payment to.
This sub-section only applies to Australian customers.
Words or expressions used in this clause which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning in this clause.
The following items do not include goods and services tax (GST):
If applicable, in addition to the amounts payable in respect of any one or more of the amounts above, you must pay, to us, GST on those amounts, as indicated in a Tax Invoice.
We will provide a Tax Invoice for each payment for you to view and print via our customer centre at https://hub.supportresort.com.
GST is payable to us by you at the same time as you pay the amounts referred to above to us.
If you fail to remit GST to us as otherwise required by this Agreement, you will indemnify us for any Claim in relation to the GST that you failed to remit.
You are responsible for all costs associated with the hardware and software you use to provide your products and services, including but not limited to your: server hardware and software; website; ticket system/software; network; billing software; email services; and backup systems.
We will not authorize any charges by third parties on your behalf for hardware and/or software purchases, or related products and/or services.
We will not perform any task that will or is likely to require any employee(s) of ours to view or work with content which is sexually explicit, hateful, obscene, offensive, illegal, threatening, racist or contains depictions of nudity.
You agree to correspond with us via "The Hub" (https://hub.supportresort.com) or by sending email messages to any email address we specify for that purpose. If we need to contact you for any reason we will do so via email, instant messenger or SMS only. You acknowledge that due to the unreliable nature of the SMS protocol any messages we send to you via SMS will not necessarily reach you.
You agree to notify us promptly of any changes to your email address or other contact details.
We scan incoming and outgoing messages for viruses. However we do not guarantee that every message will be scanned, or that every virus will be detected and removed. Additionally, we reserve the right to remove attachments from incoming and outgoing email messages. Messages we answer on your behalf through your ticket system are not scanned for viruses unless your ticket system includes virus scanning facilities.
Our virus scanning facilities provide a high level of protection against viruses but you acknowledge and agree that you are solely responsible for protecting your and your customers' property and email accounts from virus threats.
You are responsible for backing up your servers and data.
You are responsible for backing up and storing any works we undertake for you, including but not limited to website designs and computer programs. You acknowledge that we do not have any obligation to keep a copy of work we undertake for you.
You agree and acknowledge that, if any server which we are providing support for experiences an outage, responsibility for minimizing the length of the outage rests with you, whether or not you are aware of the outage. Our staff may assist in that process (if such assistance is within the scope of the service we are providing to you) but you agree that we will not be liable for any outage period in whole or in part.
If you require support directly from us, and if such support is covered by the Service Plan you have purchased from us, then your request(s) for support must be lodged via the method prescribed in the "Notice" sub-section of this Agreement.
We will provide support to you as required, within reason, and at our discretion, subject to the limitations applying to your Service Plan as advertised on our site.
We will not provide you with training unless we explicitly agree to the contrary.
At our sole discretion, we may outsource the Service or the performance of any work, or part thereof, relating to the Services to any of our affiliates or subsidiaries.
If we outsource any part of the Services or the performance of any part of the work comprising the Services, the terms and conditions of this Agreement will apply mutatis mutandis to the subsidiary company to whom the work or Services have been outsourced. For clarity, this Agreement between you and us will continue on foot and we will hold the rights and obligations of this Agreement on trust for our subsidiaries and affiliates.
We reserve the right to refuse or cancel the Service for any reason, and at our sole discretion.
This section applies if you are placing an order for a Fixed-Price Project.
Before you place your order for a Fixed-Price Project, you must first request a quote from us.
We will provide a quote to complete your project for a fixed price. Each quote will be identified by a unique Quote Reference Number. This Quote Reference Number needs to be entered when placing your order for a Fixed-Price Project to define both the scope and price of work associated with your order. It is your responsibility to ensure that you have entered the correct Quote Reference Number on this order form. The quoted price will only cover the work that we have explicitly agreed to complete for the quoted price.
Additional charges may apply if:
In such cases, we will neither commence nor continue the additional work unless and until you have agreed to the alteration in price.
Fees must be paid in US dollars via PayPal (http://www.paypal.com). Your first payment must be made at the time you place your order.
When we provide a quote for your Fixed-Price Project, we will include a list of project milestones and the amount payable upon completion of each project milestone.
Each project milestone will be deemed to be submitted for approval once we have notified you that the associated output is ready for your review.
Once a project milestone has been submitted for approval, you must pay the amount due for that project milestone within seven (7) days unless you decline to approve the project milestone. To decline to approve the project milestone, you must:
If you decline to approve the project milestone then we will make the corrections you have outlined at the time you declined to approve the project milestone except for ineligible changes - that is, changes which we determine at our sole discretion but within reason:
You agree that such ineligible changes will alter neither the amount due nor the due date of any payment(s).
Once all your requested changes (except for ineligible changes) have been completed then we will again submit the work for your approval and the above procedure will then apply with one exception: You agree that you will not raise any new concerns at this time and instead will merely verify the satisfactory completion of the changes you requested when you last declined to approve the project milestone.
You have no ownership of nor right to use the work completed for each project milestone until you have paid the full amount due for that milestone.
We reserve the right to suspend and/or withhold work on incomplete project milestones until payment has been received for all completed milestones.
Unless otherwise agreed with you, we will endeavour to commence work within two working days of receiving your order and initial payment.
If our quote for your Fixed-Price Project specifies any deadline(s) associated with particular project milestones then we will use the best of our endeavours to meet those deadlines, but no compensation, discounts or refunds will be payable in the event that any deadline is not met.
Deadlines will be extended if there are any delays at your end which prevent us from continuing work at full pace, including but not limited to payment delays and delays in receiving feedback and/or instructions from you.
You acknowledge that project delays may occur due to hard-to-control circumstances such as illness of critical staff or unforeseen technical complexities.
Unless we explicitly agree otherwise, staff will not work overtime to complete work on your project.
We will undertake basic testing of the work we produce for you but ultimate responsibility for product testing rests with you. We recommend that you undertake comprehensive testing on the different technology platforms and devices of relevance to you.
Except at our sole discretion, no free service will be provided in association with a particular milestone after you have acknowledged completion of that project milestone or paid for the project milestone, including but not limited to bug fixes, website maintenance and data/file retrieval.
If you choose to cancel service prior to completion of your entire Fixed-Price Project then:
If we choose to cancel service prior to completion of your entire project then:
You agree to provide us with a copy of your government-issued identification documents (with photo) to prove your identity if we so request. Such documents must be provided by mail or fax within two (2) days of our request. We reserve the right to suspend work and/or service pending receipt of such requested documents.
This section applies to Service Plans under which you hire individual staff or teams on a monthly or weekly basis, as opposed to purchasing a Fixed-Price Project.
We reserve the right to decide when to start the Service, subject to the following conditions.
If you place an order to hire staff on a monthly basis, the setup fee (if any) and first month's fee will be charged at the time you place your order.
If you place an order to hire staff on a weekly basis, the setup fee (if any) and first week's fee will be charged at the time you place your order.
After your initial payment has been made, we will endeavour to commence the Service within 48 hours. Please note that the 48 hours of 'lead-time' is usually required to prepare properly for commencing the Service, and is included in the period charged for.
If we are not able to commence the Service within 48 hours of you making your first payment for the Service Plan then we will notify you of that fact before the 48 hours expires. You will then have the choice of:
If you choose option 2 above, then:
We can commence service in accordance with the above either with or without your explicit agreement to the start date and time.
From the time we commence the Service, the Service will be provided on an ongoing basis until cancelled. Specifically, we are not able to suspend the Service at your request and then re-commence the Service later.
All staff are entitled to:
Time spent on meal breaks in accordance with the above entitlements forms part of your paid support period and you will not be reimbursed or refunded in any way for time spent on meal breaks as per the above entitlements.
Unless you have purchased a 24/7 Service Plan, service is provided only five days per week (Monday to Friday).
Staff may be absent from work due to leave, sickness, public holidays and other extenuating circumstances. Staff absences will be handled as follows:
We provide basic supervision only, meaning that we will ensure that your assigned staff:
Please note in particular that we do not provide project management services and so you will need to monitor the work undertaken by your assigned staff.
It is your responsibility to make good use of staff time by assigning sufficient, clearly-defined, appropriate work - charges still apply for time that your assigned staff are sitting idle.
The 14-Day Money-Back Guarantee applies only when you hire staff on a month-to-month basis.
If you cancel the Service within 14 days of the start of this Agreement, and request a refund within 7 days of cancellation, we will refund any unused portion of the payment made by you for the cancelled services within 7 days of your refund request, as long as you have not previously claimed a refund under this clause. That is, we will issue a maximum of one refund per customer.
Other than as described in the previous paragraph, all payments are non-refundable. If however we decide that exceptional circumstances apply then we will provide a refund, or partial refund, at our discretion. Refunds will not be issued for days on which staff were assigned and on duty for you.
Your initial payment is due at the time you open your account.
All prices advertised on our website are in US dollars.
For month-to-month Service Plans:
For week-to-week (ongoing) Service Plans:
When you hire a staff member for a specific number of weeks:
Payments via PayPal
If you purchase a set number of weeks of service, fees must be paid via PayPal (http://www.paypal.com) in US dollars at the time you place your order.
For month-to-month and week-to-week Service Plans:
Credit Card Payments Which Are Not Via PayPal
This subsection applies if you have elected to provide us with your credit card details so that we can charge your credit card directly.
Credit card payments are available only for month-to-month Service Plans.
Prices are quoted in United States dollars but are charged in Australian dollars by converting the United States dollar amount to Australian dollars using the exchange rate quoted on http://www.oanda.com on the day of the charge. We will charge your credit card automatically each month on or shortly after the monthly anniversary of your joining date. If we are unable to charge you successfully in any month then we will notify you via email, at the email address we have on record for you, that our attempt to charge you has failed. After three failures we will automatically cancel the Service and, if your credit card is valid, we will continue to attempt to charge any overdue fees to your credit card until the charge is successful. You agree to update us within seven (7) days of any changes to your credit card details. An administrative fee of US$30.00 will apply to each failed attempt to charge your credit card and will be added to the amount payable at the subsequent charge attempt. An administrative fee of US$50 applies to each payment that is not made through the automatic recurring billing process described in this paragraph. Credit card payments are accepted at our discretion and on the condition that no more than a total of three payment failures occur in any calendar year in relation to all the Service Plans you have ordered.
Dues not settled within fourteen (14) days will attract late fees at the rate of 20% per annum, compounded daily. Late fees apply from the original due date of the payment until the date of full payment. We reserve the right to discontinue the Service until payment of all applicable fees has been made in full via one of our supported payment methods.
Prices are subject to change without notice. Any change in fees will apply to your next billing cycle, but will not be payable for your current billing cycle. You will be issued with prior notice of any price changes so that you can opt to cancel service instead of paying the new prices if you wish.
You may cancel the Agreement at any time by cancelling your PayPal subscription(s) (if relevant) and providing us with written authorisation to cease the Service. You acknowledge that our regular fees will continue to apply until you explicitly and unambiguously cancel service and advise us of the date of cancellation (which must be at least one day after the day you explicitly and unambiguously cancel service).
Since all fees are payable in advance, in order to avoid charges for a subsequent billing cycle, you need to cancel the Service prior to the end of the current billing cycle. We recommend that you cancel your PayPal subscription (if relevant) prior to your next billing date, and also advise us of your intentions in writing prior to the end of your current billing cycle so that we know to cease providing the service, and then no further charges will be payable.
No service will be provided after your Service Plan has been cancelled, including but not limited to bug fixes, website maintenance and data/file retrieval.
If you purchase a Service Plan from us which includes Phone Support then the following applies:
If you purchase a Service Plan from us which includes Phone Support, a maximum number of calls may apply each month. Where applicable, this maximum number is specified on our website for each Service Plan. The maximum number of calls is not cumulative, and all unused calls are forfeited at the end of each monthly billing cycle.
If we determine, at our sole discretion, that you have reached the monthly call limit for your Service Plan, then we will discontinue the Service until the beginning of the next billing month. In such cases:
If you choose to avail the "Bring Your Own (BYO) Phone Provider" option, then you have full responsibility for paying all bills and amounts due to that Phone Provider, and you acknowledge and agree that we will not be responsible for paying any such amounts (in whole or in part) under any circumstances.
If your BYO Phone Provider provides an option to make outbound calls then we may, at our sole discretion, use that feature to make outbound calls in relation to the service we are providing to your customers, such as making outbound calls to test that the phone line is working or to call your customers back in relation to their support issues.
We reserve the right to decline to work with any specific Phone Provider(s) as we see fit. For example, we may decline to work with a particular provider if their service is insufficiently reliable and leads to too many dropped or lost calls. If we decline to work with the Phone Provider you have selected, then you would need to sign up with an alternative Phone Provider. Under no circumstances will we be liable for any costs or damages resulting from our declining to work with a particular provider.
You acknowledge that, due to the nature of VOIP technology, line quality cannot be guaranteed and that outages and line quality degradation may occur from time to time. You acknowledge and agree that fees will not be refunded, nor work hours repeated, due to such outages. If you choose the BYO Phone Provider option, then responsibility for the operation and quality-level of the VOIP connection rests solely with you.
If you sign up for a customer support plan (for example, the "Comprehensive 24/7 Support" plan), we will answer your customers' queries through your choice of:
The following applies if you choose for us to answer your customers' queries through your ticket software:
The following applies if you choose for us to answer your customers' queries through your live chat software:
This section applies if your Service Plan requires us to provide support to your customers.
Unless we explicitly agree otherwise in writing, we will only provide support to your Direct Customers and not to customers of any other company/entity. For example, if you have multiple companies then you would need to purchase a separate Support Plan for each company.
We reserve the sole right to decide which customers are Direct Customers and which customers are not.
If you purchase a Per Server Plan from us the following applies:
This section applies if our Server Monitor service is included with your Service Plan.
Our Server Monitor service is provided in good faith but we do not guarantee that Server Monitor will definitely detect any specific downtime experienced by your site or server. Furthermore, if you use the SMS notification facility with Server Monitor, we cannot guarantee that any particular SMS will reach you. You acknowledge that Server Monitor may also send false positive alerts.
Even if our staff assist with configuring Server Monitor for you, you are solely responsible for ensuring that your Server Monitor checkpoint and notification settings are error-free and appropriate for your needs.
If you decide to use our Short Message Service (SMS) facilities in conjunction with our "Server Monitor" service then you acknowledge and agree that:
If any part of this Agreement is deemed to be unenforceable or otherwise invalid then that will not affect the validity nor enforceability of any other parts of this agreement.
This agreement shall be interpreted under the laws of Queensland, Australia, and both parties agree that any legal action or proceedings relating to this agreement shall be settled in the courts and/or tribunals in Queensland, Australia.
Neither party will be liable to the other party in respect of anything which, apart from this provision, may constitute breach of this Agreement arising by reason of Force Majeure.
Failure or neglect by us to enforce, at any time, any of the provisions of this Agreement will not be construed or deemed to be a waiver of our rights hereunder nor in any way affect the validity of the whole or any part of this Agreement or prejudice our rights to take subsequent action.
The headings of the terms and conditions contained in this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of any of the terms and conditions of this Agreement.
You may not assign, attempt to assign nor otherwise transfer any right or obligation arising out of this Agreement without our written consent.
We reserve the right to modify or discontinue the Service (or any part thereof) as we see fit, with or without notice. We will not be liable to you or any other party for such modifications to the Service.
We reserve the right to update these Terms and Conditions from time to time. Any updates to these Terms and Conditions will apply to the Service from the time that this Agreement is updated on our website and an email is sent to the email address we have on record for you to advise you that our Terms and Conditions of Service have been modified (whether or not that message is properly received and read by you).
WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF (INCLUDING BUT NOT LIMITED TO DAMAGE, LOSS OR CORRUPTION OF DATA, SERVICE INTERRUPTIONS OR ERRORS, INACCURATE ADVICE PROVIDED TO YOUR CLIENTS, OR LOSS OF PROFIT, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS), EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
THE AGGREGATE LIABILITY OF US FOR ANY CLAIMS HOWSOEVER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PRODUCTS OR SERVICES FURNISHED OR TO BE FURNISHED BY US UNDER THIS AGREEMENT WILL, IN ANY EVENT, BE ABSOLUTELY LIMITED TO THE AMOUNT PAID BY YOU TO US UNDER THIS AGREEMENT FOR THE APPLICABLE PRODUCTS AND/OR SERVICES.
YOU ACKNOWLEDGE THAT WE HAVE SET OUR PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATION OF LIABILITY SET FORTH IN THIS AGREEMENT, AND THAT THE SAME FORMS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATION OF LIABILITY SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF ANY LIMITATION OF REMEDIES IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED HEREIN WILL LIMIT YOUR LIABILITY FOR ITS OWN WILFUL OR WANTON CONDUCT.
NOTWITHSTANDING ANY OTHER PROVISIONS CONTAINED HEREIN, WHERE ANY ACT OF THE AUSTRALIAN PARLIAMENT IMPLIES ANY TERM INTO THIS AGREEMENT, AND THAT ACT AVOIDS OR PROHIBITS PROVISIONS IN A CONTRACT EXCLUDING OR MODIFYING SUCH TERM, THAT TERM WILL BE DEEMED TO BE INCLUDED IN THIS AGREEMENT, BUT OUR LIABILITY FOR BREACH OF THAT TERM WILL BE LIMITED IN ONE OR MORE OF THE WAYS (AT OUR OPTION) PERMITTED BY SECTION 68A(1) OF THE TRADE PRACTICES ACT 1974 (CTH).
We make no statement, warranty, representation or promise not expressly set out in the Agreement, or required by law. We expressly disclaim all warranties, representations or promises in relation to the Service.
You agree at our request, to fax a signed copy of this agreement to our Australian fax number, and/or post two signed copies of this agreement to our Australian postal address, within 48 days of our request.