1. Background

a) Subject to clause 1(b), these terms and conditions (Terms) apply to any Services supplied to you by Convert Digital, including any Services supplied under a Proposal.

b) Notwithstanding clause 1(a), where the parties have entered into a separate Master Services Agreement (MSA), the terms set out in the MSA shall apply to the exclusion of these Terms.

c) In these Terms, “Convert Digital” or “we” means Convert Digital Pty Ltd (ABN 26 168 245 878) and its officers, employees and agents and “you” or “Client” means the person(s) purchasing the Services and related Deliverables from Convert Digital under the Proposal to which these Terms accompany, or otherwise wishing to purchase Services from Convert Digital from time to time.

2. Services 

a) Convert Digital agrees to:

i) provide the Services to the Client as set out in a Proposal or as otherwise agreed between the parties in writing from time to time accordance with these Terms; and  

ii) perform the Services using qualified personnel in a professional manner in accordance with generally applicable Australian standards and regulations. 

b) By accepting a Proposal, or otherwise accepting commencement of the Services, the Client agrees to these Terms.

Where Convert Digital has issued to the Client a Proposal setting out the Services to be provided, such Proposal shall only be open for acceptance for 14 days from issue, unless Convert Digital agrees otherwise.

3. Out of Scope

a) All Services to be provided by Convert Digital will be outlined in a Proposal. Any features and functionally not outlined and detailed in the Proposal are considered out of scope. This includes but is not limited to; testing, themes, extensions, plugins, integrations, training, strategic consulting, content production, platform and server configuration, payment gateway configuration, delivery and fulfilment functionality, warehouse systems integration and licensing.

b) In addition to the matters set out in clause 3(a), the Client agrees that the matters listed as either ‘out of scope’ or otherwise excluded from the scope of the Services set out in a Proposal are not included in the Services and Convert Digital is under no obligation to provide these out of scope Services to the Client.

4. Client obligations 

The Client, using qualified personnel, shall:

a) provide all Client Data required by Convert Digital to allow Convert Digital to complete the Services in a timely fashion and as required by Convert Digital; 

b) carry out agreed preparations and take other steps reasonably requested by Convert Digital to allow Convert Digital to perform the Services;

c) grant Convert Digital access to the premises, equipment, computer bases, software and hardware necessary for Convert Digital to perform the Services; 

d) review information, make decisions and, on an ongoing basis, provide Convert Digital with the information necessary for Convert Digital to perform the Services; and

e) provide Convert Digital with true and relevant information regarding the Client and its business.

5. User Acceptance Testing 

a) The Client may perform UAT in respect of any Deliverable only in accordance with the UAT processes set out in these Terms or a Proposal or as otherwise agreed between the parties in writing. 

b) Convert Digital shall provide the Client with reasonable assistance to prepare and undertake each UAT and shall be entitled to observe and participate in this testing process. 

c) Within 5 days following completion of the Services or delivery of the relevant Deliverable, the Client must conduct and complete the UAT and must either:

i) give written notice to Convert Digital that it accepts the Deliverable; or 

ii) if the Deliverable does not substantially comply with the Proposal or these Terms, give written notice to Convert Digital, identifying the relevant failure, and providing Convert Digital with written reasons that identify the areas of non-compliance. 

d) If notice is served under clause 5(c)(ii), Convert Digital shall either:

i) accept the notice and perform the necessary corrections or modifications to the Deliverable so that they pass the UAT; or 

ii) respond in accordance with clause 5(f). 

e) Following any correction or modification, Convert Digital and the client must reperform the UAT in accordance with this clause.

f) If, in Convert Digital’s reasonable opinion, a non-compliance identified in clause 5(c)(ii):

i) has arisen through the Client’s negligence or wilful default; or  

ii) is, in Convert Digital’s reasonable opinion, either unfounded or otherwise unreasonable having regard to the Services and agreed scope,

the matter shall be resolved in accordance with clause 15.

g) The Services will be deemed to have been accepted if:

i) the Client gives Convert Digital written notice under clause 5(c)(i);

ii) no notice is given by the Client under clause 5(c); or 

iii) the Deliverables become used in a live commercial environment or for a purpose other than conducting UAT.

6. Change Requests

a) Where the Client wishes to make any change to the Services or the Deliverables, provided such change is within the reasonable capacity of Convert Digital to provide, the Client may submit a change request (Change Request) to Convert Digital. The Change Request must contain sufficient detail for Convert Digital to determine the effect of the requested change on the scope of the Services and Deliverables and the Fees (using Convert Digital’ then current charge rates).

b) Within a reasonable period of receiving a Change Request, Convert Digital will provide to the Client a proposal for performing the changes to the Services and/or the Deliverables including:

i) the proposed new Services and Deliverables; and

ii) any revised Fees and expenses.

c) Convert Digital will have no obligation to make the requested change until the parties have agreed and signed a written agreement specifying, in particular, any changes to the Services and the Fees.

7 Fees and invoicing 

7.1 Fees 

a) The Client shall pay Convert Digital the Fees for the Services.  

b) Where the Fees are not set out in a Proposal, Convert Digital shall charge Fees in accordance with its standard price list, as amended from time to time.

c) Fees specified in these Terms and a Proposal are exclusive of GST and other similar taxes and surcharges and net of withholding or other similar taxes. 

7.2 GST 

a) If Goods and Services Tax (GST) has application to any supply made under or in connection with these Terms, Convert Digital may, in addition to any amount or consideration payable under these Terms, recover from the Client an additional amount on account of GST, such amount to be calculated by multiplying the amount or consideration payable by the Client for the supply by the prevailing GST rate.  

b) Any additional amount on account of GST recoverable from the Client under this clause shall be calculated without any deduction or set-off of any other amount and is payable by the Client upon demand by Convert Digital whether such demand is by means of an invoice or otherwise.

7.3 Additional Services Fee

a) In addition to the Services Fee, the Client shall pay all reasonable costs incurred by Convert Digital while performing support tasks, including but not limited to data communication costs, third party hosting costs, and the costs of any third-party software/plugins unless expressly specified otherwise in a Proposal (Additional Services Fee). 

b) Convert Digital shall together with its invoice for the Services Fee, submit details of any Additional Services Fee to the Client.   

7.4 Invoices

a) Where Services are being provided in accordance with a Proposal, within 10 Business Days of the last day of each calendar month or on such other dates as set out in a Proposal, Convert Digital shall issue to the Client an invoice for the Fees and charges payable in respect of that period.

Where Services are not provided in accordance with a Proposal, within 10 Business Days of the last day of each fortnight, Convert Digital shall issue to the Client an invoice for the Fees and charges payable in respect of that period.

b) Where it has been agreed that a minimum sum is to be paid for the Services (Minimum Sum), unless specified otherwise in a Proposal, Convert Digital shall invoice the Minimum Sum as follows:

i) 50% of the Minimum Sum prior to commencement of the Services;

ii) 40% of the Minimum Sum upon of delivery of the Services and Deliverables to the Client for UAT; and

iii) the balance of the Minimum Sum on the earlier of successful completion of UAT, commercial launch of the Services and/or Deliverables, and acceptance by the Client (by notice or conduct) that the Services are completed.

c) The Client must pay all invoices within the time specified in the invoices, or where no time is stated, within 10 Business Days of receipt.

7.5 Failure to pay 

If the Client does not pay the Fees on or before the due date, Convert Digital shall be entitled to receive interest on overdue payments of 1% per month and shall be entitled to withhold delivery or part thereof of Services yet to be provided.

7.6 Set off 

a) Convert Digital may, without limiting any other rights or remedies it may have, set off any amounts owed to it by the Client under these Terms against any amounts payable by Convert Digital to the Client. 

b) The Client must not make any deductions of any nature from any amounts it owes to Convert Digital.

8. Intellectual Property Rights 

8.1 Ownership 

a) The Intellectual Property Rights in the Services and each Deliverable are, and shall remain the property of Convert Digital (or in the case of any Third Party Product, the relevant Third Party Product provider), and Convert Digital reserves the right to grant a licence to use each Deliverable to any other party or parties. 

b) The Client must do all things that Convert Digital reasonably requires to perfect Convert Digital’s right, title and interest in and to the Intellectual Property Rights in each Deliverable.

c) The Client shall use reasonable endeavours to prevent any infringement of Convert Digital’s Intellectual Property Rights in each Deliverable and shall promptly report to Convert Digital any such infringement that comes to its attention.

8.2 Licence

For so long as the Client is not in breach of these Terms, Convert Digital grants to the Client a perpetual (subject to any limits set out in a Proposal), non-exclusive, royalty-free (subject to payment of the Fees), non-transferable right to use the Deliverables and the Documentation to the extent necessary to obtain the full benefit of the Services.  

8.3 Client Data 

a) All Intellectual Property Rights in the Client Data remain the property of the Client or relevant third parties and nothing in these Terms shall be construed as giving Convert Digital any rights to such Intellectual Property Rights. 

b) In the event Convert Digital or its personnel are permitted access to or are otherwise provided with Client Data for any reason then, without prejudice to clause 10, Convert Digital and its personnel shall not without the prior written consent of the Client distribute, duplicate, reproduce or any way use (or permit the use of) any Client Data, or, modify, amend or alter the contents of Client Data or disclose or permit the disclosure of the Client Data to any third party without the prior consent of the Client. 

8.4 Client warranty and indemnity 

a) The Client warrants that:

i) it owns, or holds any necessary license of, all Intellectual Property Rights in the Client Data; and

ii) in utilising any Client Data, Convert Digital will not infringe, violate or otherwise conflict with any Intellectual Property Rights owned by a third party.

b) The Client indemnifies Convert Digital from and against any liability arising out of any claim by a third party that the Client Data violates or infringes any Intellectual Property Rights owned by a third party.

8.5 Convert Digital warranty and indemnity 

a) Convert Digital warrants that:

i) it owns, or holds any necessary license of, all Intellectual Property Rights in the Services and the Deliverables (other than Third Party Products) (Convert IP); and

ii) in utilising the Convert IP, the Client will not infringe, violate or otherwise conflict with any Intellectual Property Rights owned by a third party.

Convert Digital indemnifies the Client from and against any liability arising out of any claim by a third party that the Convert IP violates or infringes any Intellectual Property Rights owned by a third party.

9 Term and termination

9.1 Term

a) This document will commence upon the Commencement Date and will continue until terminated under clause 9.3, by mutual agreement between the parties or as otherwise set out in a Proposal. 

b) If no term is expressly set out in a Proposal, the engagement and this agreement to provide the Services will be terminable by Convert Digital on 30 days’ notice.

9.2 Suspension

a) If the Client is in breach of these Terms, including due to non-payment of any invoice, Convert Digital may suspend its obligations until such breach is remedied. 

b) Convert Digital may terminate this agreement without liability to the Client by notice in writing if its obligations are suspended under clause 9.2(a) for 30 days or more.

c) In the event of a suspension under clause 9.2(a), any deadline agreed under a Proposal or otherwise with respect to the performance of the Services shall be extended by an amount of time equal to the period of suspension.

9.3 Termination for cause 

In addition to any other rights to terminate set out in these Terms either party may at any time terminate this agreement with immediate effect by giving written notice to the other party if:

a) the other party fails to pay any amount due pursuant to these Terms on the date for payment and remains in default not less than 14 days after being notified in writing to make such payment;

b) the other party commits a material breach of these Terms and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;

c) the other party repeatedly breaches any term of these Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Terms; or

d) the other party suffers an Insolvency Event.

9.4 Obligations on termination 

a) On termination or expiry, each party shall as soon as reasonably practicable:

i) return, destroy or permanently erase (as directed in writing by the other party) any documents, handbooks, storage devices or other information or data provided to it by the other party containing, reflecting, incorporating or based on Confidential Information belonging to the other party;

ii) permanently delete any proprietary software belonging to the other party from its IT network or its storage devices;

iii) promptly return (within ten days from termination or request) to the disclosing party all tangible Confidential Information (and all copies thereof) of the disclosing party, or upon written request from the disclosing party, destroy such Confidential Information; 

iv) cease all further use of the other party’s Confidential Information, whether in tangible or intangible form; and

v) return all of the other party’s equipment and materials, provided that:

A) the Client may retain copies of any Convert Digital Confidential Information incorporated into the Deliverables or to the extent necessary to allow it to make full use of the Services; and

B) if a party is required by any law, regulation, or government or regulatory body to retain any documents or materials containing the other party’s Confidential Information, it shall notify the other party in writing of such retention, giving details of the documents and/or materials that it must retain.

b) On termination for any reason, the Client shall immediately pay any outstanding unpaid invoices and interest due to Convert Digital. Convert Digital shall submit invoices for any Services that it has supplied, but for which no invoice has been submitted, and the Client shall pay these invoices immediately on receipt.

c) On termination by Convert Digital pursuant to clause 9.2(b) or 9.3 or termination by the Client other than pursuant to clause 9.3, any balance not yet paid in relation to a Minimum Sum shall become immediately payable to Convert Digital.

10 Confidentiality 

10.1 Information to be kept confidential 

a) Each party agrees to, and shall ensure each of its officers, employees and contractors:

i) hold in strict confidence all Confidential Information of the other party;

ii) use the Confidential Information solely to perform or to exercise its rights under these Terms; and

iii) not transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any third party.  

iv) use its best endeavours, including keeping such information in a safe place and implementing adequate security measures, to ensure that all Confidential Information is secure from unauthorised use, disclosure or copying by third parties.

b) The obligations in clause 10.1(a) do not apply:

i) to the extent necessary to enable disclosure required by law;

ii) to any disclosure agreed in writing between the parties; or

iii) where the Confidential Information has entered the public domain other than as a result of a breach by the Client of these Terms.

11 Limited warranty and exclusion of liability 

11.1 Limitation of Liability 

a) This clause sets out the entire financial liability of the parties (including any liability for the acts or omissions of its employees, agents and subcontractors) to each other in respect of:

i) any breach of these Terms; 

ii) any use made of the Services or the Deliverables; and

iii) any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.

b) As far as the law permits and unless otherwise specified in these Terms; 

i) all liability to a party for any injury, loss damage, cost or expense relating to or arising from these Terms, except to the extent that the injury, loss, damage, cost or expense arises from the negligent act or omission of a party, is excluded;

ii) the Client shall be solely responsible, as against Convert Digital, for any opinions, recommendations, forecasts or other conclusions made or actions taken by the Client, any client of the Client or any other third party based (wholly or in part) on the results obtained from the use of any Deliverable or the Services by the Client; 

iii) Convert Digital shall have no liability for any damage caused by errors or omissions in any information or instructions provided to Convert Digital by the Client in connection with the Services;

iv) Where a service level agreement is entered into with respect to the Services, the consequences of a failure to meet the agreed service levels will be exclusively set out in the relevant service level agreement;

v) Convert Digital shall have no liability for, and no obligation to amend, replace or refund, any Deliverables that cease to function in accordance with any agreed specifications or services levels to the extent the failure arises from a change to any operating or software platform or any change to the terms and conditions implemented by any third party;

vi) Convert Digital makes no representations or warranties in relation to any Third Party Products and will not be responsible for support, maintenance, upkeep, renewal of such Third Party Products supplied under this document (other than as expressly set out herein);

vii) Convert Digital shall have no liability for, and no obligation to deliver Services in relation to the matters set out in Schedule A; and

viii) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded from these Terms.

11.2 Mitigation 

Each party must mitigate any loss it suffers as a result of the breach by the other party to these Terms or any warranty or indemnity provided under these Terms. 

11.3 Warranty

Convert Digital will, at its cost and at its option repair or replace any defective Deliverables or re-perform defective Services provided that notice of such defect is provided in writing to Convert Digital within 30 days of completion of UAT or otherwise delivery of the relevant Deliverables or Services (Warranty Period).

11.4 Maximum liability 

a) Subject to clause 11.4(b), the total liability of each party arising under or in connection with these Terms will be limited in the aggregate to the total Fees payable in the previous 12 month period.

b) Clause 11.4(a) will not limit or exclude the liability of either party for any claim arising from:

i) death or personal injury or damage to property resulting from negligence; or

ii) fraud or fraudulent misrepresentation; or

iii) the deliberate default or wilful misconduct of that party or its employees, agents or contractors;

iv) the non-payment of any Fees; or

v) the indemnities contained in clauses 8.4 and 8.5.

11.5 Consequential Loss 

Neither party will be liable to the other or any other person for any Consequential Loss.

11.6 Australian Consumer Law 

If the Australian Consumer Law applies to the supply of goods or services under these Terms, Convert Digital acknowledges and agrees that its goods and services come with a guarantee that cannot be excluded under the Australian Consumer Law, and that the following mandatory notice under section 102(1) of the Australian Consumer Law that must be provided to the Client will apply:

Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

• to cancel your service contract with us; and

• to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

12 Data Protection 

12.1 Compliance with Data Protection Legislation

Both parties must comply with all applicable requirements of the Data Protection Legislation. 

a) Without prejudice to the generality of clause 11.6(a), the Client will ensure that it has all necessary and appropriate consents and notices in place to enable lawful transfer of any personal data to Convert Digital for the duration and purposes of these Terms so that Convert Digital may lawfully use, process and transfer the personal data in accordance with these Terms on the Client’s behalf.

b) Convert Digital shall notify the Client immediately if it becomes aware of any security incident affecting its network and information systems that could potentially affect the Client and shall respond without delay to all queries and requests for information from the Client about any security incident, whether discovered by Convert Digital or the Client. 

12.2 Responsibilities if PCI DSS service provider

a) Where the Client is a PCI DSS service provider, it acknowledges that it will be responsible for the security of any cardholder data that it possesses or otherwise stores, processes, or transmits on behalf of a customer or client, or to the extent that the Client could impact the security of the Client’s cardholder data environment.

b) The Client indemnifies Convert Digital from and against any liability arising out of any claim by a third party with respect to any improper use of cardholder data supplied to the Client by that third party.

13 Non-solicitation 

a) During the term of these Terms and for a period of twelve months after its termination neither party shall, without the prior written consent of the other, solicit, or permit any related entity of that party to solicit, the employment of any person who is employed by the other party or its related entities in the course of developing, supplying, maintaining or supporting the Services or a Deliverable or any part of it.

b) if a party breaches clause 13(a), then it shall pay to the other party an amount equal to twelve month’s salary (excluding any bonus or benefits) for the employee concerned in recognition only of the disruption that such inducement has caused to the efficient conduct of the other party's business.

14 Force Majeure 

Neither party shall be liable for any delay or failure to perform its obligations pursuant to this document if such delay is due to an event of force majeure.

15 Dispute Resolution 

a) Neither party may commence court proceedings concerning any dispute between the parties arising out of or in relation to this document (Dispute), unless the party starting the proceedings has complied with this clause 15.

b) A party claiming that a Dispute has arisen must notify the other party in writing, specifying the nature of the Dispute (Dispute Notice).

c) Following the Dispute Notice being given, the CEO of both parties must endeavour in good faith to resolve the Dispute within 14 days.

d) If the Dispute is not resolved within 14 days of the Dispute Notice being given, the parties must endeavour in good faith to resolve the Dispute by mediation as follows:

i) if the parties fail to agree on the appointment of a mediator within 21 days of the Dispute Notice being given, either party may apply to the President of the Law Society of Queensland or the nominee of the President to nominate a mediator (which nomination the parties must accept);

ii) if the mediator accepts the appointment, the parties must comply with the mediator’s instructions;

iii) if the Dispute is not resolved within 21 days of the appointment of a mediator, the mediation ceases;

iv) the parties will be jointly responsible for the fees of the mediation, and each party is to bear its own costs in relation to the mediation;

v) the mediation will be held in Brisbane, Queensland;

vi) the parties may be legally represented at the mediation; and

vii) the mediation will not be bound by the rules of natural justice and may discuss the Dispute with a party in the absence of any other party and their advisers.

A) Nothing in this clause prevents a party from seeking urgent interlocutory relief in a court.

16. General

16.1 Amendments 

a) Convert Digital may update these terms from time and the latest copy will always be available at www.convertdigital.com.au.

b) Any change to the terms will take effect upon renewal of any term, or where services are provided on a periodic basis, on the commencement of the next period.

16.2 Governing law and jurisdiction

The laws of Queensland govern this document and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland and courts competent to hear appeals from those courts.

16.3 Assignment 

Neither party may assign, in whole or in part any of its rights and obligations under this document without the prior written consent of the other party. 

16.4 Severability

A clause or part of a clause of this document that is illegal or unenforceable may be severed from this document and the remaining clauses or parts of the clause of this document continue in force.

16.5 Entire agreement

These Terms supersede all previous agreements about its subject matter.  This agreement embodies the entire agreement between the parties.

16.6 Further assurances

Each party must do all things reasonably necessary to give effect to this document and the transactions contemplated by it.

16.7 Costs

Each party bears its own costs in relation to the preparation of these Terms.  

16.8 No waiver

a) The failure of a party to require full or partial performance of a provision of these Terms does not affect the right of that party to require performance subsequently.

b) A single or partial exercise of or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. 

c) A right under these Terms may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in that waiver.

16.9 Notices

A notice, consent or communication under these Terms must be in writing, signed by or on behalf of the person giving it, addressed to the person to whom it is to be given and delivered by hand, sent by prepaid mail or sent by email to that person's address as specified in the Proposal or as the person notifies the sender.

a) A notice, consent or communication is given and received:

b) if it is hand delivered, on the day it is given;

i) if it is sent by post, three business days after posting (if within Australia) or seven business days after posting (if outside Australia); and

ii) if it is sent by email, that day, if the time of departure from the sender's mail server is before 5.00pm on a business day, or the next business day in any other case, unless the sender receives an automated message generated by the recipient's mail server (other than an 'out of office' message or other response generated by or at the instigation of the recipient) that the email has not been delivered within two hours.

17 Defined terms & interpretation

17.1 Defined terms

In these terms:

a) Australian Consumer Law means schedule 2 to the Competition and Consumer Act 2010 (Cth).

b) Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne, Victoria.

c) Client Data means all information provided by the Client for the purposes of providing the Services to be stored, transmitted, processed and/or retrieved by Convert Digital in its performance of the Services.

d) Commencement Date means the date of acceptance of these Terms.  

e) Confidential Information means any information:

i) relating to the business and affairs of a party;

ii) relating to the customers, clients, employees, sub-suppliers or other persons doing business with a party;

iii) relating to these Terms or a Proposal; 

iv) relating to the Intellectual Property Rights or Source Code of a party; 

v) which is by its nature confidential;

vi) which is designated as confidential by a party; or

vii) which the other party knows or ought to know, is confidential,

and includes all trade secrets, knowhow, marketing, financial and customer information, forecasts, and strategies and any other commercially valuable information of a party.

f) Consequential Loss means indirect, economic, special or consequential loss or damage, loss of revenue, time, goodwill, data, anticipated savings, opportunity, loss of production and loss of profit, and includes loss or corruption of data, hosting or business interruption costs), loss of page rank or page indexing caused by search engine algorithm changes or in connection with any Client or third party provided content or software that may be upload, transmitted, placed, added or otherwise used in relation to the Services or as a result of a data breach within the Client’s business. 

g) Data Protection Legislation means:

i) the Privacy Act 1988 (Cth) and any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued under it, as amended from time to time;

ii) the Australian Privacy Principles (or APPs) contained in schedule 1 of the Privacy Act referred to in (i); and 

iii) all other laws, regulations, registered privacy codes, privacy policies and contractual terms applicable in the jurisdiction where the Services are being provided that relate to the processing of personal information.

h) Deliverables means the products or services to be delivered to the Client by Convert Digital as set out in a Proposal and includes the tools or applications developed by Convert Digital which form part of the Services. 

i) Documentation means any operating manuals, user instruction manuals, technical literature and all other related materials in human-readable or machine-readable forms supplied by Convert Digital as part of the Deliverables.

j) Ecommerce Ecosystem refers to the complex network or interconnected systems that make up an eCommerce business.

k) Ecommerce Stack refers to a group of programs that work in tandem to produce a result or achieve a common goal.

l) Fee means the fees for the Services payable by the Client under these Terms and as set out in a Proposal, including the Services Fee and any Additional Services Fee. 

m) Insolvency Event means any of the following events concerning a party:

i) if an administrator, liquidator, receiver, receiver and manager or other controller is appointed to, or over, any of the property or undertaking of the party;

ii) if the party is unable to pay its debts when they become due and payable;

iii) if the party ceases to carry on business; or

iv) if any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition

n) Intellectual Property Rights means all industrial and intellectual property rights throughout the world, whether registered, unregistered or unregistrable, including all copyrights, patents, trademarks, service marks, designs, confidential information, trade secrets, know how, data and databases, systems and domain names.

o) Media Services means any media services supplied or on sold by Convert Digital.

p) Open Source means software for which the original source code is made freely available and may be redistributed and modified.

q) Proposal means a written document provided to the Client by Convert Digital relating to Services to be supplied by Convert Digital, which may be in the form of a written scope, statement of works or an estimate.

r) Responsive Site refers to a web design approach aimed at crafting sites to provide an optimal viewing experience with easy reading and navigation with a minimum of resizing, panning, and scrolling across a wide range of devices (from mobile phones to desktop computer monitors).

s) Services means the services to be provided by Convert Digital as specified in each Proposal or as otherwise agreed between the parties. 

t) Services Fee means the fee set out in a Proposal or if not specified, an amount calculated at Convert Digital’s usual rates and charges to carry out the Services and reviewed annually.

u) Source Code means software written in a form intelligible to trained programmers and capable of being translated into object code through assembly or compiling for operations on computer equipment.

v) Third Party Product means a software program or product not proprietary to Convert Digital, which is owned by a third party and which is supplied by Convert Digital to the Client under this document.

w) UAT means User Acceptance Testing. 

x) Warranty Period has the meaning set out in clause 11.3.

17.2 Interpretation

In these Terms:

a) a reference to a clause, schedule, annexure or party is a reference to a clause of, and a schedule, annexure or party to, this document and references to this document include any schedules or annexures;

b) a reference to a party to this document or any other document or agreement includes the party's successors, permitted substitutes and permitted assigns;

c) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;

d) a reference to a document or agreement (including a reference to these terms) is to that document or agreement as amended, supplemented, varied or replaced;

e) a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;

f) if any day on or by which a person must do something under this document is not a Business Day, then the person must do it on or by the next Business Day;

g) a reference to a person includes a corporation, trust, partnership, unincorporated body, government and local authority or agency, or other entity whether or not it comprises a separate legal entity; 

h) a reference to '$' or 'dollar' is to Australian currency; and

i) the meaning of any general language is not restricted by any accompanying example, and the words 'includes', 'including', 'such as', or 'for example' (or similar phrases) do not limit what else might be included. 

Schedule A - Limitations and out of scope items

1. General Limitations

The client acknowledges and agrees that:

j) Convert Digital cannot control the performance or delivery dependencies arising from the Client’s introduction of extensions and third party applications that are not introduced by Convert Digital or are otherwise proposed under the Proposal. Due to the nature of Ecommerce Stacks, Convert Digital is not responsible for performance issues such as site speed that may arise from a conflict between integrating multiple extensions and Third Party applications.

k) Unless specifically stated in the Proposal, Convert Digital takes no responsibility for, and the Services shall not include the resolution of, pre-existing bugs, issues and or site specific complexities upon migrating the Client’s existing site to Convert Digital’s support and infrastructure. 

l) Convert Digital works with Open Source platforms to provide clients with the most appropriate platform for business. From time to time, Open Source platforms can experience technical bugs, issues with applications and issues with integrations under the management of Convert Digital. Convert Digital is not responsible for the ongoing resolution of these issues unless the Client and Convert Digital has entered into an ongoing service level agreement.

m) Convert Digital works in conjunction with closed source / SaaS platforms and attempts to provide clients with the most appropriate platform for business. From time to time, SaaS platforms can experience technical bugs, and issues with applications and integrations. If the Client is using SaaS platforms Convert Digital is not required to provide ongoing support of these tools. 

n) Convert Digital is not responsible for the support, maintenance, upkeep, or renewal of the Client’s Domain Name, TLD and DNS, Https (ssl cert), or hosting unless otherwise agreed in a Proposal. 

o) Convert Digital may use third party hosting providers to supply the Services. Convert Digital will pass on to the Client the benefit of all warranties and support (including all support exclusions and liability limitations) provided by the third party hosting providers under the third party hosting providers terms of supply provided to Convert Digital. The Client acknowledges and agrees that to the extent it suffers loss or liability arising from an act or omission of a third party hosting provider that affects the supply of the Services or Deliverables, any claim the Client may have or may have against Convert Digital for that loss or liability is limited to the extent that Convert Digital is able to recover that loss or liability from the third party hosting provider.

p) Convert Digital’s ongoing support, development, and project management services after the date of delivery or launch of the Deliverables that is identified within the Warranty Period will be considered out of scope. This additional work can be delivered under a support level agreement with Convert Digital and a financial commitment by way of retainer, support block or ad hoc project. 

q) To the fullest extent permitted by law, Convert Digital disclaims all guarantees regarding or liability that may arise from the positioning or the levels or timing of Media Services including: 

i) costs per click; 

ii) click through rates;  

iii) availability and delivery of any impressions, creative, or targets on any Client property, Convert Digital property, or section thereof; 

iv) clicks, conversions or other results for any ads or targets;

v) the accuracy of Client or their partners’ data (e.g. reach, size of audience, demographics or other purported characteristics of audience); and 

vi) the adjacency or placement of advertisements within a specific program.

r) Convert Digital has no liability for changes that a Client makes on their website after accepting these Terms including but not limited to deleting data, resetting cache, reindexing the site, updating data, re-syncing data, changing configuration, uploading new content, changing integration, bulk import/exporting, changing hosting providers, configuring database, updating operating systems, that cause breakage or unavailability to the public of the site. Convert Digital will endeavour to fix any breakages in accordance with its standard commercial rates.

2. Browser and Device Support and Limitations

s) Convert Digital does not guarantee that the Services or Deliverables will be compatible with a specific device or browser. Convert Digital will undertake site development and testing to target compatibility with the latest version of the following browsers and operating systems: Firefox, Safari, Chrome, Microsoft Edge, though, in many cases, not all features will be available in Internet Explorer browsers. Convert Digital also tests its themes on various mobile, tablet, and desktop devices.  

t) Convert Digital recommends that the Services and deliverables are used on the following browsers and operating systems:

i) Desktop only sites: Edge, Chrome and Safari on MacOS; Mobile only sites (for mobile and tablet sites): iOS native browser (mobile safari), Android native browser and Windows Phone native browser as updated by Convert Digital from time to time.

ii) Responsive Sites (desktop, tablet & mobile): Edge, Chrome, Safari on MacOS, iOS native browser (mobile safari), Android native browser and Windows Phone native browser as updated by Convert Digital from time to time.

u) Convert Digital is unable to guarantee that any of its Deliverables will pass W3C, Google PageSpeed Insights or other validation services.

3. Website Security Testing

v) Convert Digital is not required to undertake ongoing assessments of the vulnerability of the Client’s website. 

w) Convert Digital will not warrant third party software or hosting or third party licenses that result in potential vulnerabilities in network devices including but not limited to firewalls, routers, switches, servers and applications. 

x) Convert Digital is not liable for any Consequential Loss as a result of a security, vulnerability or penetration breach but will act in good faith to assist the client if any issues occur in the normal course of business. 

y) Convert Digital and its employees will not be liable for any Loss arising in connection with such use of the public internet including all liability for any disclosure of Confidential Information when transmitted over the public internet.

z) From time to time Convert Digital will implement caching and CDN technologies to improve the performance of Ecommerce Ecosystems. These systems are subject to instability due to their inherent complexity, and may need to be reset, re-indexed, and re-configured from time to time. 

If Convert Digital is engaged to migrate code or applications written by third or external parties, Convert Digital is not responsible for the quality, integrity, scalability, and integration compatibility of these externally produced bodies of work.