1.1 “Contract” means the terms and conditions contained herein, together with any Quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
1.2 “Lucid IT” means Lucid IT Solutions Pty Ltd ATF Lucid IT Trust T/A Lucid IT Solutions, its successors and assigns or any person acting on behalf of and with the authority of Lucid IT Solutions Pty Ltd ATF Lucid IT Trust T/A Lucid IT Solutions.
1.3 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting Lucid IT to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
(a) if there is more than one Client, is a reference to each Client jointly and severally; and
(b) if the Client is a partnership, it shall bind each partner jointly and severally; and
(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
(d) includes the Client’s executors, administrators, successors and permitted assigns.
1.4 “Services” means interactive access to the Internet provided by Lucid IT to the Client (for the Client’s use), including any computer resources, software, data storage, computer communications facilities, Products, IP address, training and/or any other equipment supplied ancillary to the Services (“Products”) in order to facilitate the provision of Services (Managed or Project (i.e. consultancy work) based). Where the context so permits the terms ‘Services’ or ‘Products’ shall be interchangeable for the other. Any Products supplied to the Client by Lucid IT on a loan basis (for the duration of the Services):
(a) remains Lucid IT’s sole property;
(b) may be changed, substituted, revoked or repossessed by Lucid IT at Lucid IT’s sole discretion at any time; and
(c) is not transferable.
1.5 “Web Site” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.
1.6 “Prohibited Content” means any content or links that:
(a) are, or could reasonably be considered to be, in breach of the Broadcasting Services Act 1992; the Fair Trading Acts of the applicable States and Territories of Australia and the Competition and Consumer Act 2010 (CCA); or any other applicable law or applicable industry code; or
(b) contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
(c) are, or could reasonably be considered to be, in breach of any person’s intellectual property rights (including, but not limited to, the distribution of software or video, audio or digital files, or any other material in which the Client does not own the copyright). Lucid IT will respond to all reports of infringement that are formatted in accordance with Australian copyright laws and any other applicable copyright laws. Lucid IT will act in accordance with the law when handling infringement reports; or
(d) are, or could reasonably be considered to be, pirated software, bulk e-mail related products, pornography or nudity or adult content, hacking or cracking related websites, Warez, hosting of large scale video, audio or digital download websites, illegal material or material that is against public policy, websites containing or linking to material that may be considered detrimental to the public’s health, safety or welfare (such as, but not limited to, anarchists, Cookbook, bomb making, weapon information, etc.), or anything else that may be considered detrimental or illegal.
1.7 “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
1.8 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website, and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when ordering from the website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to ordering Services via the website.
1.9 “Fee” means the Fee payable (plus any GST where applicable) for the Services as agreed between Lucid IT and the Client in accordance with clause 5 of this Contract.
1.10 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by Lucid IT.
2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
2.4 The Client shall as soon as practicable make available to Lucid IT all information, documents, software, hardware, and other particulars required by Lucid IT for the provision of Services.
2.5 None of Lucid IT’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the Director of Lucid IT in writing nor is Lucid IT bound by any such unauthorised statements.
2.6 Any advice, recommendations, information, assistance or service provided by Lucid IT in relation to the Services provided is given in good faith, is based on information provided to Lucid IT, and Lucid IT’s own industry knowledge, and experience. Whilst it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Services, human error is possible under these circumstances, and Lucid IT shall make all effort to offer the best solution to the Client.
2.7 Notwithstanding clause 2.6, once accepted by the Client, Lucid IT’s quotation shall be deemed to interpret correctly the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, Lucid IT shall not be responsible for errors or omissions due to oversight or inadvertent misinterpretation of those instructions.
2.8 Provided Lucid IT acts reasonably, they are entitled to assume that any request in connection with the Services that Lucid IT receives from the Client (or the Client’s agents, employees or contractors) or from the premises where the Services are being provided or accessed, is authorised by the Client.
2.9 The Client acknowledges that the supply of Services on credit shall not take effect until the Client has completed a credit application with Lucid IT and it has been approved with a credit limit established for the account.
2.10 In the event that the supply of Services request exceeds the Clients credit limit and/or the account exceeds the payment terms, Lucid IT reserves the right to refuse delivery.
2.11 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
3. Errors and Omissions
3.1 The Client acknowledges and accepts that Lucid IT shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
(a) resulting from an inadvertent mistake made by Lucid IT in the formation and/or administration of this Contract; and/or
(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by Lucid IT in respect of the Services.
3.2 In the event such an error and/or omission occurs in accordance with clause 3.1, and is not attributable to the negligence and/or wilful misconduct of Lucid IT; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.
4. Change in Control
4.1 The Client shall give Lucid IT not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by Lucid IT as a result of the Client’s failure to comply with this clause.
5. Fee and Payment
5.1 At Lucid IT’s sole discretion the Fee shall be either:
(a) as indicated on any invoice provided by Lucid IT to the Client; or
(b) Lucid IT’s quoted Fee (subject to clause 5.2) which will be valid for the period stated in this Contract and/or Lucid IT’s quotation or otherwise for a period of fourteen (14) days.
5.2 Additional and/or Varied Services:
(a) where there is any variation to the accepted plan of scheduled Services, or instructions/specifications, which will be charged for on the basis of Lucid IT’s standard hourly rates (and double such rate for any Services provided outside Lucid IT’s normal business hours) and will be shown as variations on the invoice;
(b) where the performance of any Contract with the Client requires Lucid IT’s to obtain Products and/or Services from a third party, the contract between Lucid IT and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or Services to Lucid IT, and the Client shall be liable for the cost in full including Lucid IT’s margin of such Products and/or Services;
(c) Lucid IT agrees that there will be no charge in the preparation of the initial quotation, which may include Client discussions, project scoping, research, testing and business analysis, etc. However, in some instances the aforementioned Services may be charged to the Client additionally (at Lucid IT’s sole discretion);
(d) in the event that Lucid IT is requested to provide on-site Services, in which case a minimum call-out Fee equal to one (1) hours labour (and/or two (2) hours labour for any requested provision of Services after-hours), plus travel, parking costs and Products, shall apply.
(e) notwithstanding clause 5.1, the Client acknowledges that additional charges may apply to certain Services and support provided by Lucid IT (including, but not limited to, reconfiguration of the Client’s computer or network). Any such charges shall be shown as a variation to the original Fee; and
(f) where a Contract term is stipulated, Lucid IT may adjust the monthly charges from time to time (subject to the addition of extra users or Products) without prejudice or notice to the Client. All Services are billed to the Client one (1) month in advance (unless otherwise specified);
(g) as a result of increases beyond Lucid IT’s reasonable control in the cost of materials or labour (e.g. third-party suppliers’ costs, etc.), or to currency exchange rates. Payment for all variations must be made in full at their time of completion.
5.3 Variations will be charged for on the basis of Lucid IT’s quotation, and will be detailed in writing, and shown as variations on Lucid IT’s invoice. The Client shall be required to respond to any variation submitted by Lucid IT within ten (10) working days (with the exception of clause 5.2(f)). Failure to do so will entitle Lucid IT to add the cost of the variation to the Fee. Payment for all variations must be made in full at the time of their completion.
5.4 At Lucid IT’s sole discretion a non-refundable deposit may be required.
5.5 Time for payment for the Services being of the essence, the Fee will be payable by the Client on the date/s determined by Lucid IT, which may be:
(a) on provision of the Services;
(b) by way of instalments/progress payments in accordance with Lucid IT’s payment schedule;
(c) by way of an annual subscription agreement; or
(d) fourteen (14) days following the date specified on any invoice or other form as being the date for payment; or
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Lucid IT.
5.6 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and Lucid IT.
5.7 Lucid IT may in its discretion allocate any payment received from the Client towards any invoice that Lucid IT determines and may do so at the time of receipt or at any time afterwards. On any default by the Client Lucid IT may re-allocate any payments previously received and allocated. In the absence of any payment allocation by Lucid IT, payment will be deemed to be allocated in such manner as preserves the maximum value of Lucid IT’s Purchase Money Security Interest (as defined in the PPSA) in the Services.
5.8 The Client shall not be entitled to set off against, or deduct from the Fee, any sums owed or claimed to be owed to the Client by Lucid IT nor to withhold payment of any invoice because part of that invoice is in dispute.
5.9 The Client acknowledges and agrees that the Client’s obligations to Lucid IT for the provision of the Services shall not cease, and ownership of the Products (if applicable) shall not pass, until:
(a) the Client has paid Lucid IT all amounts owing thereto for the particular Services; and
(b) the Client has met all other obligations due by the Client to Lucid IT in respect of all Contracts between Lucid IT and the Client.
5.10 Receipt by Lucid IT of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Lucid IT’s ownership or rights in respect of the Services, and this Contract, shall continue.
5.11 Unless otherwise stated the Fee does not include GST. In addition to the Fee, the Client must pay to Lucid IT an amount equal to any GST Lucid IT must pay for any supply by Lucid IT under this or any other agreement for providing Lucid IT’s Services. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Fee. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Fee except where they are expressly included in the Fee.
6. Delivery of Services
6.1 Lucid IT may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
6.2 Any time specified by Lucid IT for provision of the Services is an estimate only and Lucid IT will not be liable for any loss or damage incurred by the Client as a result of provision being late. However, both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that Lucid IT is unable to provide the Services as agreed solely due to any action or inaction of the Client, then Lucid IT shall be entitled to:
(a) charge the Client additionally for re-providing the Services at a later time and date; or
(b) subject to clause 16.4(b), terminate the Contract.
7.1 When the Client uses the Services, the Client must:
(a) comply with all laws, all directors by a regulator, all notices issued by authorisation of, or under, law (e.g. Copyright Act 1968) and reasonable directions by Lucid IT; and
(b) keep the Client’s account information, password, data and Products confidential and secure. The Client shall remain responsible for any use or misuse of such; and
(c) follow any reasonable instructions provided by Lucid IT in relation to the Services; and
(d) access and use the Services solely in accordance with these terms and conditions and any reasonable instructions provided by Lucid IT; and
(e) employ back-up power and surge protectors at the Client’s premises; and
(f) respond promptly to Lucid IT’s communications in relation to the Services; and
provide accurate and prompt responses to Lucid IT’s requests for any information or documentation reasonably required by Lucid IT to provide the Services.
8. Risk and Limitation of Liability
8.1 The Client acknowledges and agrees that Lucid IT shall not be held responsible or liable for:
(a) any loss, corruption, or deletion of files or data (including, but not limited to software programmes) resulting from illegal hacking or Services provided by Lucid IT. Whilst Lucid IT will endeavour to restore files or data (at the Client’s cost), it is the sole responsibility of the Client to back-up any data. The Client accepts full responsibility for the Client’s software and data and Lucid IT is not required to advise or remind the Client of appropriate backup procedures;
(b) loss or damage caused by any component failure, notwithstanding any rights the Client has under the CCA, or the Client’s software or hardware caused by any ‘updates’ provided for that software;
(c) any unlicensed software, data loss or problems arising caused by the user or software.
8.2 Lucid IT, its directors, agents, or employees will not be liable in any way for any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to the provision of Services by Lucid IT to the Client.
8.3 The Client agrees to defend, hold harmless and indemnify Lucid IT for any and all claims, causes of action, damages, demands, fines, liabilities and penalties arising out of the Clients breach of any warranty made by the Client pursuant to this Contract. The Client further agrees to defend, hold harmless and indemnify Lucid IT for any and all claims, causes of action, damages, demands, fines, liabilities and penalties arising out of the Client’s negligent or reckless acts or omissions arising out of this Contract.
8.4 Lucid IT undertakes to act in all professional matters as a faithful consultant to the Client, whose interests will be watched over with skill and care. Notwithstanding, Lucid IT shall only be liable to the Client for the consequences of any negligent act, omission or statement of Lucid IT, and then only to the extent and limitations referred to herein and the Quotation.
8.5 Where Lucid IT is liable to the Client (whether by statute, contract tort or otherwise), then unless otherwise agreed in writing between the Client and Lucid IT, the maximum liability of Lucid IT to the Client howsoever arising shall not exceed the lesser of:
(a) the Contract Fee, or
(b) the actual cost to Lucid IT for Services or Products which are the subject of the claim, or
(c) Lucid IT’s Professional Indemnity Insurance cover carried by Lucid IT.
8.6 The liability of Lucid IT to the Client shall expire twelve (12) months from the issue of the last invoice relevant to the particular Services, unless in the meantime the Client has made a claim in writing to Lucid IT, specifying a negligent act, omission or statement said to have caused alleged loss or damage sustained or sustainable.
8.7 Notwithstanding clauses 8.4 to 8.5, Lucid IT shall not be liable for any loss or damage sustained or sustainable by a Client in relation to:
(a) errors occurring in plans, designs or specifications not created or prepared by Lucid IT;
(b) errors occurring during the course of any services which are not provided by, nor the responsibility of, Lucid IT;
(c) the use of any Documentation or other information of advice without the approval of Lucid IT.
8.8 The Client acknowledges that it is the policy of Lucid IT to report all findings of illegal material (including, but not limited to, images and software) to the relevant authorities.
9.1 The Client acknowledges and agrees that, until ownership of the Products passes to the Client in accordance with clause 5.9:
(a) the Client is only a bailee of the Products and must return the Products to Lucid IT on request;
(b) the Client holds the benefit of the Client’s insurance of the Products on trust for Lucid IT and must pay to Lucid IT the proceeds of any insurance in the event of the Products being lost, damaged or destroyed;
(c) the Client must not sell, dispose, or otherwise part with possession of the Products other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Products then the Client must hold the proceeds of any such act on trust for Lucid IT and must pay or deliver the proceeds to Lucid IT on demand;
(d) the Client should not convert or process the Products or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Lucid IT and must sell, dispose of or return the resulting product to Lucid IT as it so directs;
(e) the Client shall not charge or grant an encumbrance over the Products nor grant nor otherwise give away any interest in the Products while they remain the property of Lucid IT; and
(f) Lucid IT may commence proceedings to recover the Fee notwithstanding that ownership of the Products has not passed to the Client.
9.2 If the Client fails to return the Products, or refuses to allow Lucid IT to recover the Products, the Client irrevocably authorises Lucid IT (as the invitee of the Client) to enter upon and into land and premises owned, occupied or used by the Client, or any premises where the Products are situated, or Lucid IT believes the Products are kept, and take/recover possession of the Products, without being responsible for any damage thereby caused. Furthermore, provided Lucid IT acts with reasonable care, the Client must reimburse Lucid IT for any loss and/or costs incurred thereby.
10. Personal Property Securities Act 2009 (“PPSA”)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in:
(a) all Products previously supplied by Lucid IT to the Client;
(b) all Products will be supplied in the future by Lucid IT to the Client; and
(c) all the Client’s present and after acquired property being a charge, including anything in respect of which the Client has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Client to Lucid IT for Services – that have previously been provided and that will be provided in the future by Lucid IT to the Client.
10.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Lucid IT may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause
10.3(a)(i) or 10.3(a)(ii);
(b) indemnify, and upon demand reimburse, Lucid IT for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Products charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of Lucid IT;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Products in favour of a third party without the prior written consent of Lucid IT.
10.4 Lucid IT and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
10.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed to in writing by Lucid IT, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
10.8 The Client must unconditionally ratify any actions taken by Lucid IT under clauses 10.3 to 10.5.
10.9 Subject to any express provisions to the contrary (including those contained in this clause 10), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
11. Security and Charge
11.1 In consideration of Lucid IT agreeing to supply Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
11.2 The Client indemnifies Lucid IT from and against all Lucid IT’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Lucid IT’s rights under this clause.
11.3 The Client irrevocably appoints Lucid IT and each director of Lucid IT as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 11 including, but not limited to, signing any document on the Client’s behalf.
12. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
12.1 The Client must inspect Lucid IT’s Services on completion of the Services and must within twenty-four (24) hours notify Lucid IT in writing of any evident defect in the Services or Products provided (including Lucid IT’s workmanship) or of any other failure by Lucid IT to comply with the description of, or quote for, the Services which Lucid IT was to supply. The Client must notify any other alleged defect in Lucid IT’s Services or Products as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Lucid IT to review the Services or Products that were provided.
12.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
12.3 Lucid IT acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Lucid IT makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. Lucid IT’s liability in respect of these warranties is limited to the fullest extent permitted by law.
12.5 If the Client is a consumer within the meaning of the CCA, Lucid IT’s liability is limited to the extent permitted by section 64A of Schedule 2.
12.6 If Lucid IT is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then Lucid IT may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services and Products which have been provided to the Client which were not defective.
12.7 If the Client is not a consumer within the meaning of the CCA, Lucid IT’s liability for any defective Services or Products is:
(a) limited to the value of any express warranty or warranty card provided to the Client by Lucid IT at Lucid IT’s sole discretion;
(b) otherwise negated absolutely.
12.8 Notwithstanding clauses 12.1 to 12.7 but subject to the CCA, Lucid IT shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Products;
(b) the Client using the Products for any purpose other than that for which they were designed;
(c) the Client continuing to use any Products after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) interference with the Services by the Client or any third party without Lucid IT’s prior approval;
(e) the Client failing to follow any instructions or guidelines provided by Lucid IT;
(f) fair wear and tear, any accident, or act of God.
13. Intellectual Property
13.1 If during the course of providing the Services, Lucid IT develops, discovers, or puts into operation a new concept, product or process which is capable of being patented, then such concept, product or process shall be and remain the property of Lucid IT and the Client shall not use or supply the same in any way whatsoever without first obtaining the written consent of Lucid IT.
13.2 The Client warrants that all designs or instructions to Lucid IT will not cause Lucid IT to infringe any patent, registered design or trademark in the execution of the Client’s order. Furthermore, the Client agrees to indemnify, defend, and hold Lucid IT harmless from all loss incurred or suffered by Lucid IT arising from any claims (including third party claims) or demands against them where such loss was caused by any infringement or alleged infringement of any person’s intellectual property rights by the Client during the use of the Services.
13.3 Any coding and other supplied code (if any) remains the intellectual property of Lucid IT. Copying or disseminating the code for any purpose whatsoever is strictly forbidden and will be a breach of copyright.
13.4 Where Lucid IT has provided software (and associated
documentation) and/or for any of Lucid IT’s source code, Lucid IT retains ownership thereof, but grants the Client a non-exclusive and non-transferable licence for its use (solely in relation to the operation of the Client’s own business). The Client will use any third-party software and/or source code supplied by Lucid IT, and identified as such, strictly in terms of the licence (or any other conditions imposed by Lucid IT) under which it is supplied. The Client further agrees that they shall not without Lucid IT’s prior written consent:
(a) copy the software and/or source code; or
(b) allow any third party to have access to the software and/or source code; or
(c) where Lucid IT’s phone configuration details are used such details are confidential and access to such is strictly prohibited unless the Client is to (upon written advice) carry out a factory reset for the phone system to be configured again from inception; or
(d) alter, modify, tamper with, or reverse engineer the software and/or source code; or
(e) combine the software and/or source code with any other software and/or item, etc.
13.5 Subject to Australian copyright laws (and/or any other applicable copyright laws) and the conditions therein, the Client agrees that they shall not in any way sell, reproduce, adapt, distribute, transmit, publish, or create derivative works from, any part of the software (if supplied by Lucid IT) without Lucid IT’s prior consent in writing.
13.6 The Client hereby authorises Lucid IT to utilise images of the Services created by Lucid IT in advertising, marketing, or competition material by Lucid IT.
14. Default and Consequences of Default
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Lucid IT’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
14.2 If the Client owes Lucid IT any money the Client shall indemnify Lucid IT from and against all costs and disbursements incurred by Lucid IT in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Lucid IT’s contract default fee, and bank dishonour fees).
14.3 Further to any other rights or remedies Lucid IT may have under this Contract, if a Client has made payment to Lucid IT, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Lucid IT under this clause 14 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
14.4 Without prejudice to Lucid IT’s other remedies at law Lucid IT shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Lucid IT shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Lucid IT becomes overdue, or in Lucid IT’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by Lucid IT;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
15.1 Subject to clause 15.2, each party agrees to treat as confidential the other party’s Confidential Information, and agree not to divulge it to any third party, without the other party’s written consent.
15.2 Both parties agree to:
(a) use the Confidential Information of the other party only to the extent required for the purpose it was provided;
(b) not copy or reproduce any of the Confidential Information of the other party in any way;
(c) only disclose the other party’s Confidential Information to:
(i) employees and third-party providers who need access to the information and who have agreed to keep it confidential;
(ii) its legal advisers and insurance providers if those persons undertake to keep such information confidential; and
(iii) not disclose the other party’s Confidential Information to any person not referred to in this clause except with the other party’s prior written consent or if required by law, any stock exchange or any regulatory body.
15.3 Either party must promptly return or destroy all Confidential Information of the other party in its possession or control at the other party’s request unless required by law to retain it.
15.4 Confidential Information excludes information:
(a) generally available in the public domain (without unauthorised disclosure under this Contract);
(b) received from a third party entitled to disclose it;
(c) that is independently developed.
15.5 The obligations of this clause 15 shall survive termination or cancellation of this Contract.
16.1 Without prejudice to any other remedies Lucid IT may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Lucid IT may suspend or terminate the supply of Services to the Client. Lucid IT will not be liable to the Client for any loss or damage the Client suffers because Lucid IT has exercised its rights under this clause.
16.2 Either party may, without liability, cancel these terms and conditions or cancel provision of the Services:
(a) if there is no contract term specified, at any time by giving thirty (30) days’ notice to the other party;
(b) if a contract term is specified, at any time after the end of the Contract term by giving thirty (30) days’ notice to the other party;
16.3 Lucid IT may, in addition to their right to cancel under clause 16.1:
(a) do so at any time:
(i) prior to the commencement of the Services, by giving notice to the Client, in the event Lucid IT determine it is not technically, commercially or operationally feasible to provide the Services to the Client; and
(ii) in the event the Client materially breaches these terms and conditions, and such breach is not capable of remedy.
16.4 In the event that the Client:
(a) cancels the provision of Services prior to the expiry of any specified Contract term, then the Client shall be liable to pay for the provision of the Services until the expiration of the contact term;
(b) fails to give notice of intention to cancel at least thirty (30) days prior to the expiration date of the contract term, the contract term shall automatically renew on a monthly basis, unless cancelled by way of the Client providing Lucid IT with thirty (30) days’ notice.
16.5 Should the Client, for any reason, cause the Services to be delayed for more than three (3) months after the acceptance date, this Contract will be terminated by Lucid IT (at their sole discretion) and all Services completed, but not billed or paid, will be payable in full within seven (7) days from the date of the submitted invoice.
17. Dispute Resolution
17.1 Lucid IT and the Client will negotiate in good faith and use their reasonable efforts to settle any dispute that may arise out of, or relate to, this Contract, or any breach thereof. If any such dispute cannot be settled amicably through ordinary negotiations, the dispute shall be referred to the representatives nominated by each party who will meet in good faith in order to attempt to resolve the dispute. Nothing shall restrict either party’s freedom to commence legal proceedings to preserve any legal right or remedy or protect and proprietary or trade secret right.
18.1 All emails, documents, images or other recorded information held or used by Lucid IT is Personal Information, as defined and referred to in clause 18.3, and therefore considered Confidential Information. Lucid IT acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Lucid IT acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by Lucid IT that may result in serious harm to the Client, Lucid IT will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
18.2 Notwithstanding clause 18.1, privacy limitations will extend to Lucid IT in respect of Cookies where transactions for purchases/orders transpire directly from Lucid IT’s website. Lucid IT agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
(a) IP address, browser, email client type and other similar details;
(b) tracking website usage and traffic; and
(c) reports are available to Lucid IT when Lucid IT sends an email to the Client, so Lucid IT may collect and review that information (“collectively Personal Information”)
In order to enable / disable the collection of Personal Information by way of Cookies, the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable, provided on the website prior to proceeding with a purchase/order via Lucid IT’s website.
18.3 The Client agrees for Lucid IT to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by Lucid IT.
18.4 The Client agrees that Lucid IT may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
18.5 The Client consents to Lucid IT being given a consumer credit report to collect overdue payment on commercial credit.
18.6 The Client agrees that personal credit information provided may be used and retained by Lucid IT for the following purposes (and for other agreed purposes or required by):
(a) the provision of Services; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Services.
18.7 Lucid IT may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
18.8 The information given to the CRB may include:
(a) Personal Information as outlined in 18.3 above;
(b) name of the credit provider and that Lucid IT is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Lucid IT has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of Lucid IT, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
18.9 The Client shall have the right to request (by e-mail) from Lucid IT:
(a) a copy of the Personal Information about the Client retained by Lucid IT and the right to request that Lucid IT correct any incorrect Personal Information; and
(b) that Lucid IT does not disclose any Personal Information about the Client for the purpose of direct marketing.
18.10 Lucid IT will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
18.11 The Client can make a privacy complaint by contacting Lucid IT via e-mail. Lucid IT will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
19. Service of Notices
19.1 Any written notice given under this Contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this Contract;
(c) by sending it by registered post to the address of the other party as stated in this Contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address.
19.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
20.1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not Lucid IT may have notice of the Trust, the Client covenants with Lucid IT as follows:
(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
(b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
(c) the Client will not without consent in writing of Lucid IT (Lucid IT will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
(i) the removal, replacement or retirement of the Client as trustee of the Trust;
(ii) any alteration to or variation of the terms of the Trust;
(iii) any advancement or distribution of capital of the Trust; or
(iv) any resettlement of the trust property.
21.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
21.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria, the state in which Lucid IT has its principal place of business, and are subject to the jurisdiction of the Melbourne Courts in that state.
21.3 Lucid IT may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.
21.4 The Client cannot licence or assign without the written approval of Lucid IT.
21.5 Lucid IT may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Lucid IT’s sub-contractors without the authority of Lucid IT.
21.6 The Client agrees that Lucid IT may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Lucid IT to provide Services to the Client.
21.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
21.8 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.