14. Glossary of Terms
- 14.1 In these Terms of Service, unless the context requires otherwise: “Acceptable Use Policy” means the Acceptable Use Policy located at http://tmarque.com.au/legal/aup/.“Affiliate” in relation to a party means any entity that controls or is controlled by or is controlled in common with that party, and includes any ‘related body corporate’ (as defined in the Corporations Act 2001 (Cth) of that party. For these purposes, an entity is taken to be ‘controlled’ by a party if that party owns the majority of share capital or other securities in the other entity to which a right to vote in a general meeting of the entity attaches, or if the management of the entity is controlled by that party. “Business Day” means a day of the week other than a Saturday, Sunday or a day on which trading banks in Melbourne are not open for transacting business. “Contract” means the legal agreement between You and Us relating to the provision of the Services by Us to You, which is made up of the documents referred to in clause 1.1. “Contract Details” means an agreement (including an agreement made in writing, an agreement the terms of which are made available by means of a website, or the terms of which are agreed to orally) by Us to provide a person with certain services.
“Confidential Information” means all information of or pertaining to Us which has been in the past or is in the future supplied or disclosed to You or which otherwise comes to Your knowledge in connection with the performance of the Services, including without limitation:
- (a) information concerning the business affairs, business partners, suppliers, plans or strategies of Us or any of Our Affiliates;
- (b) information concerning any products or services which We propose to supply; and
- (c) information which is designated by Us as being confidential or which a reasonable person would, given the nature of the information, consider to be confidential.
“Consideration” has the meaning given by the GST Law.
“Default Rate” in respect of an amount of money, means the rate of 1.5% per annum above the annual interest rate charged by Commonwealth Bank of Australia on overdrafts of the same amount.
“GST” has the meaning given by the GST Law.
“GST Amount” means in relation to a Taxable Supply the amount of GST payable in respect of that Taxable Supply.
“GST Group” has the meaning given by the GST Law.
“GST Law” has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth), or, if that Act does not exist means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act.
“Input Tax Credit” has the meaning given by the GST Law and a reference to an Input Tax Credit entitlement of a party includes an Input Tax Credit for an acquisition made by that party but to which another member of the same GST Group is entitled under the GST Law.
“Insolvency Event” means:
- (a) in respect of a party being an individual – the party dies, ceases to be of full legal capacity or commits an act of bankruptcy or makes a composition with or assignment of his or her property in favour of creditors;
- (b) in respect of a corporation – the party:
- (i) stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
- (ii) is insolvent within the meaning of section 95A of the Corporations Act 2001 (Cth), must be presumed by a court to be insolvent by reason of an event set out in section 459C(2) of that Act or fails to comply with a statutory demand (within the meaning of section 459F(1) of that Act);
- (iii) has had an administrator appointed or any step preliminary to the appointment of an administrator taken, or has had a controller (within the meaning of section 9 of the Corporations Act 2001 (Cth) or similar officer appointed to all or any of its assets or business;
- (iv) has had proceedings commenced, a resolution passed or proposed in a notice of meeting, an application to, or order of, a court made or other steps taken against or in respect of it (other than frivolous or vexatious applications, proceedings, notices or steps) for its winding up, deregistration or dissolution or for it to enter an arrangement, compromise or composition with or assignment for the benefit of its creditors, a class of them or any of them; or
- (v) if incorporated outside Australia, has become insolvent or suffered any event or similar event to those set out in paragraphs (i) to
(iv) which would restrict its business operations or cause those operations to be placed under the control of a person other than its directors under the laws of its place of incorporation.
“IPR” means all rights in relation to copyright, trade secrets, trademarks, designs, drawings, patents, know-how, secret processes, formulae, semiconductor or circuit layouts and all other similar proprietary rights and all rights to the registration of those rights, whether created, formed or arising before, on or after the date of the Contract, in Australia or elsewhere.
“Law” means any statute, regulation, order, rule, subordinate legislation or other government requirements of any place, or any document enforceable under any of them, which is applicable to the Contract or the performance of the Services.
“Liability” includes any loss, damage, cost, expense (including the full amount of any legal expenses) and other liability whatsoever, whether prospective or contingent, and whether ascertainable or not. “Services” has the meaning given to that term by clause 2.1 .
“Service Fees” means the fees stated in the Contract Details as being payable in respect of the performance of the Services or, where no such fees are stated, fees for the performance of the Services calculated on a time and materials basis. “Software” has the meaning given to that term in clause 4.1.
“Tax” includes any tax, levy, impost, deduction, charge, rate, duty, or withholding that is levied or imposed by a governmental agency, and any related interest, penalty, charge, fee or other amount.
“Terms of Service” means these terms and conditions.
“You” means the entity for whom work under the Contract is performed and includes that entity’s executors, administrators, successors and permitted assigns.
- 14.2 The following rules of interpretation apply in the Contract:
- (a) the singular includes the plural
- (b) a reference to a person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
- (c) a reference to any agreement or document is to that agreement or document as amended, novated, supplemented or replaced from time to time;
- (d) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
- (e) examples are descriptive only and mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included;
- (f) a provision must not be construed against a party merely because that party was responsible for preparing that provision;
- (g) a reference to any legislation or legislative provision includes any statutory modification or re enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
- (h) any reference in the calculation of Consideration or of any indemnity, reimbursement or similar amount to a cost, expense or other liability incurred by a party, must exclude the amount of any Input Tax Credit entitlement of that party in relation to the relevant cost, expense or other liability. A party will be assumed to have an entitlement to a full Input Tax Credit unless it demonstrates otherwise prior to the date on which the Consideration must be provided;
- (i) if the doing of any act, matter or thing under the Contract is dependent on the consent or approval of a party or is within the discretion of a party, the consent or approval may be given or the discretion may be exercised conditionally or unconditionally or withheld by the party in its absolute discretion.