Website Development and Services Agreement - Standard Terms and Conditions (Terms) Policy

Master agreement

From time to time, you may request certain Supplies from HutSix/H6 as in respect of websites including website development and hosting services. Any such contractual arrangements are subject to HutSix and you agreeing and entering into a Contract in respect of the same. These Terms set out how such a Contract may be formed and the terms and conditions which will comprise the same. To avoid doubt, nothing in these Terms creates an exclusive arrangement between HutSix and you or requires HutSix to enter into any Contract with you. You accept these Terms by (a) signing these Terms, or (b) accepting a Quote which attaches these Terms or which states that these Terms apply (including where the Quote references these Terms and states the Terms are available from HutSix’s website).

Forming a Contract

1.   A Contract is formed if you:

1.1  accept HutSix’s Quote (in writing or electronically);

1.2  you request HutSix to commence providing a Supply and HutSix agrees to the same or commences to make that Supply; or

1.3  you accept a Supply from HutSix. 

What HutSix Agrees to Do

2.   HutSix agrees to provide the Supply to you under the terms of the Contract.

3.   HutSix will use due care and skill and use suitably qualified Staff in performing the Supply. 

4.   HutSix agrees to use reasonable efforts to complete all or any part of the Supply by any dates specified in a Quote or as agreed in writing with you.

5.   If a Quote names specific Staff to perform the Supply, HutSix may substitute Staff of equivalent expertise if at any time such specified Staff are not available.

6.   If applicable, HutSix will provide and make available to you the Documentation in respect of the Website.

What you agree to do

7.   You agree to comply with your obligations under the Contract including paying HutSix as and when required.

8.   If applicable, at no cost to HutSix, you must:

8.1  allow, upon reasonable notice, HutSix remote access to your application or database server, web server and network folders;

 8.2  allow, upon reasonable notice, HutSix’s Staff access to any relevant site (including the use of amenities, power and internet connections) at all reasonable times to perform the Supply; and

8.3  provide HutSix with all necessary information to perform the Supply including access to your employees.

About the Contract

9.   These Terms:

9.1  together with the Quote (if any) and the Policies will be the sole terms of each Contract for the Supply;

9.2  apply to any Supply HutSix provides you even if HutSix has not issued you with a Quote;

9.3  prevail over any terms put out by you, unless HutSix expressly accepts the same in writing; and

9.4  only apply to the extent applicable to the Supply HutSix agrees to make under a Contract.

10. In respect of each Contract, in case of any inconsistency between the parts of the Contract, the following applies:

10.1 the terms of a Quote prevail over these Terms and any Policy (unless the Quote expressly provides otherwise); and

10.2 these Terms prevail over any Policy.

11. None of HutSix’s Staff may vary or add to these Terms without the prior written authority of HutSix’s Chief Executive Officer.

12. Capitalised words in these Terms have the meaning given in clause 91 or as defined elsewhere in these Terms.

13. HutSix may change these Terms at any time. Such updated Terms will apply to all future Contracts subject to HutSix giving you Notice of such changes. To avoid doubt, the updated Terms will not apply to existing Contracts.

14. Any term, condition or warranty imposed or implied into a Contract or between you and HutSix by law is excluded from the Contract unless the law voids or prohibits a provision in a contract excluding or modifying the application of such a term, condition or warranty.

Proposals and credit

15. HutSix may accept or decline to perform any request for a Supply you give to HutSix. 

16. Quotes are valid for 30 days from their date, unless withdrawn or varied by HutSix by Notice to you prior to HutSix’s receipt of your Notice of acceptance.

Website development services

Provision of Services

HutSix will provide the Services to you and will use reasonable endeavours to complete the Services in accordance with the Milestone Due Dates and any development stages specified in the Quote (if any).  To avoid doubt, HutSix will have no Liability to you where your acts or omissions (including you breaching your obligations under a Contract) are the cause of any delay by HutSix.

Your obligations – website development

You will provide HutSix with all instructions and information reasonably required so that HutSix can properly perform its obligations under a Contract including as set out in a Quote. In addition, you must provide us with all Customer Information required by HutSix to complete the Website in a timely manner including any Milestone Dates or completion date for the Website (including any Customer Material specified in a Quote). IMPORTANT: Your active involvement and collaboration is critical to the development of the Website (including the timely delivery of the Website). Given this, you agree at all times to appoint and have available a Project Owner. You must ensure that the Project Owner: (a) has suitable skills and qualifications to liaise and collaborate with HutSix in respect of the performance of the Services, (b) attends meetings in respect of the development and refinement of the Website, (c) actively engages with HutSix and provides feedback, directions and assistance in respect of the development of the Website including assessing and giving directions where there are iterations of the Website or stages of the development of the Website or Website content, and (d) has authority to give directions and approvals to HutSix in respect of a Contract and the delivery of the Services. Any failure by you to appoint and maintain a Project Owner or for the Project Owner to promptly provide responses and directions to HutSix will allow HutSix to extend any Milestone Due Date, and HutSix may invoice you for any extra costs and expenses reasonably incurred by HutSix in respect of such failures or delays.

Acceptance Tests

You will be deemed to have accepted the Website on the earlier of (a) the successful completion of the Acceptance Tests, (b) you authorising the Website to become publicly available, or (c) the day that is fourteen (14) days after the date HutSix makes the Website available to you in a private online environment for you to carry out the Acceptance Tests if you fail to notify HutSix that the Website does not comply with the Specifications within such period.

If the Acceptance Tests confirm (a) the Website complies with the Specifications, the Website will be deemed to be accepted on the date the Acceptance Tests confirm the same, or (b) the Website are does not comply with the Specifications, HutSix will correct, at no additional cost, the deficiencies or errors causing such non-compliance as soon as is reasonably practicable. 

Intellectual property

(New IPR) Subject to you paying HutSix in full for the Services HutSix assigns all of HutSix’s IPR in the New IPR created by HutSix to you after which, you grant HutSix (a) a limited non-transferrable licence to use the New IPR solely for the purposes of performing the Services, and (b) a perpetual licence for HutSix to use and utlise the New IPR to develop websites for other clients and to sublicence such New IPR to such other clients (however HutSix may not use or sublicence such New IPR to another client where that website is in direct competition with your business). To avoid doubt, there is no fee payable by HutSix to you for the rights granted under this clause.

(Background IPR) The parties agree that HutSix is the sole owner of all present and future Background IPR. HutSix grants you a non-exclusive, non-transferable, perpetual, royalty free licence to use, the Background IPR as part of the Website on and from you paying HutSix in full for the Services so you can use and have the benefit of the Website.

(Third Party IPR) In respect of Third Party IPR, HutSix warrants that it has licences for the same which will allow you to use the Third Party IPR to utilise the Website without any additional fee or licence. In respect of photos used on the website (a) where HutSix licences the photo from third parties, HutSix will ensure you have a non-exclusive licence to use the same on the Website (and if applicable you must pay HutSix any fee for the same in the Quote), (b) where HutSix takes the photo, HutSix will own the same and give you a non-exclusive licence to use the photo on the Website, and (c) where the photo is taken by someone who approves the use of the photo on the Website HutSix may include a credit on the website in respect of the person who took that photo. 

(Open Source Software) To the extent the Website includes tools or software which is licensed under an open source software arrangement (a) the terms of the open source licence will apply to the Website, and (b) the provisions of the open source licence will prevail over the terms of the Contract in the event and to the extent of any inconsistency.

(IPR Claims) In the event of any Claim against you alleging that the Website infringes a third party’s IPR, to the extent the Claim relates to HutSix’s New IPR or Background IPR, HutSix may (at HutSix’s cost) (a) procure for you a licence or right to continue to use the Website from that third party, or (b) replace or modify the Website so it no longer infringes the third party’s IPR. HutSix has no obligation or Liability in respect of a Claim for IPR infringement where the same relates to Customer Materials or to the extent the Claim arises from any amendments or modifications to the Website not made by HutSix (any you indemnify HutSix in respect of any Liability in respect of the same). You must immediately notify HutSix of any claim that the Website infringes a third party’s IPR and, if HutSix requests, allow HutSix to conduct the defence of that claim (subject to HutSix agreeing to indemnify you in respect of the conduct and settlement of that claim).

(Customer Materials) You warrant to HutSix that all Customer Materials you provide to HutSix for inclusion or use in the Website are owned by you or that you have a lawful right to use the same and that none of the Customer Materials infringe the IPR rights of any third party. You indemnify HutSix from all Liabilities arising from any breach of the warranty given by you in this clause.  You warrant to HutSix that no Customer Materials will breach any laws (including privacy laws) or would give rise to any Claim by the use or inclusion of the same against HutSix (including any Claims for defamation) and you indemnify HutSix in respect of all and any such Claims.

Updates and obsolescence

Unless the Contract provides otherwise HutSix is not required to (a) develop or provide you with any updates or modifications to the Website unless expressly agreed in writing, or (b) provide on-going maintenance services in respect of the Website, or any other support for the Website unless agreed in writing with you. 

IMPORTANT: You acknowledge and agree that the Website  

(a) is to be used with and in conjunction with web browsers and operating systems, hardware and web browsers including third party supplied versions of any of the same or versions you use or own (Other Systems), and (b) the Website may require upgrades or become obsolescent in the future because of changes to, or the unavailability of, such Other Systems (including, for example, the web browser is updated or discontinued or the operating system on mobile devices which are used to view and access the Website are updated and so the Website requires updates to be compatible with the Website). On this basis, you acknowledge and agree that HutSix provides you with no warranty as to the likely period that the Website will remain viable or before major work will be required to be undertaken to keep the Website functional or operational except as set out in clause 56 (unless the Quote expressly provides otherwise), HutSix is not obligated to provide any Upgrades or other services in respect of the above matters. Where you require Services to make the Website  operational or otherwise arising from the matters set out in this clause in relation to Other Systems, HutSix will charge you for such Services as agreed in a specific Quote or otherwise by applying the Schedule of rates.

Project specific matters

17. (Content Writing): Where the Quote specifies we will provide content writing for the Website content (Content Writing). You must assist HutSix in respect of any such Content Writing by (a) providing guidance as to the overall structure and topics which the Content Writing must cover, (b) relevant factual information, and (c) guidance on our draft Content Writing including reviewing and signing off on HutSix’s draft Content Writing. You must also notify HutSix if any of HutSix’s draft Content Writing is likely to infringe any IPR rights of any of your competitors. You are responsible for the overall strategy and aim of the Content Writing you request HutSix to create. 

18. (Photo Consents): You must ensure that you obtain written consents from individuals for the use of their images on the Website.

19. (Disbursements): Where a Quote specifies HutSix will procure third party services or items for you (including any domain name licence, stock or commissioned photos or graphics) you must promptly pay HutSix for the same on HutSix providing such third party invoices to you including any GST on such invoices or which arise from the same being disbursed by HutSix to you.   

20. (Payment Facilities): To the extent that the Website is to include any online credit card or other merchant payment facility (such as paypal) (Payment Functions), (a) you are responsible for contracting with vendors or providers of the same (including paying licensing and integration fees), and (b) we are only responsible (if provided in the Quote) to provide the webpage on the Website where the Payment Functions are to made available. You agree that we have no obligations or Liability in respect of any Payment Functions.

21. (Secure Portals): To the extent that the Quote includes a Website with a secure access portal you are responsible for all passwords and administration of the same (Secure Portal). In respect of a Secure Portal, the only warranty we provide in respect of the same is that the Secure Portal will have the level of security set out in the Quote, or if not specified, then current level of security used by like secure portals. HutSix’s Liability to you for any breach of this warranty is limited to the amount specified in clause 34 below.  

Hosting Services

Hosting Services

22. These provisions apply if the Quote provides that HutSix provides you with hosting services for the Website (Hosting Services).  Hosting Services do not include email services unless expressly specified in a Quote. Hosting Services are subject to any stated data storage limits or bandwidth restrictions set out in the Quote. HutSix may provide the Hosting Services directly or via third party hosting service providers (including outside of the country in which you operate). The term of the Hosting Services will be as set out in the Quote as will the fee (Hosting Fee). Where the term is annual, the Hosting Fee must be paid in full in advance. Where the term is on a rolling calendar month basis HutSix will invoice you monthly in advance and unless you provide notice to terminate within 7 days of receipt of the same the term will be extended for a further calendar month. HutSix is not required to offer or provide the Hosting Services on and from each anniversary of the start date of the Hosting Services (regardless of whether the term is annual or monthly) but may make such an offer by issuing you an invoice at HutSix’s then current price for the next applicable period. Where you pay such an invoice the term will be extended as per the prior term subject always to HutSix’s right to cease offering or providing the Hosting Services on the next anniversary of the start date for the Hosting Services.

23. HutSix will ensure that all reasonable efforts are made to protect your Website and data on the same from unauthorised access or disclosure. However, no data security system is capable of being totally secure and protected from unauthorised access or attacks. As such, you agree that HutSix’s sole Liability to you arising from any unauthorised access to your Website or data on the same which is not caused by your acts or omissions is limited to the total Hosting Fees you have paid to HutSix in the 12 months prior to any such event. You are responsible for the safe custody and use of any passwords required to access  secure parts of the Website or data on the same.

23A.1 Unless the Contract provides otherwise, despite any other provision in these Terms you and HutSix agree: HutSix may use third party AI tools, platforms and software (AI Tools) to assist HutSix to perform and carry out a Supply;

23A.2  you consent to HutSix’s disclosure, use, storage of any Customer Materials, your Confidential Information and any of the New IPR on the AI Tools to the extend reasonably required by HutSix to properly and efficiently perform and carryout a Supply;

23A.3 the consent in clause 19A.2 extends to the AI Tool provider (AI Tool Provider) and, if applicable, parties the AI Tool Provider engages to assist in the functionality and output of the AI Tools (including providers of large language models) (AI Affiliates), to use and process Customer IPR, your and New IPR so HutSix can use the AI Tools;

23A.4 unless you agree, HutSix will not use AI Tools which allows the AI Tool Provider or its AI Affiliates to (a) sell or licence to third parties the Customer Materials or your Confidential Information, (b) to use Customer Materials or your Confidential Information to ‘train’ the AI Tools, or (c) allow ‘forking’ or development of the software developed by HutSix in making the Supply (however, HutSix is authorised to allow the AI Tool Provider to use the Customer Materials, your Confidential Information and New IPR, to understand the functioning of the AI Tools and to improve the same);

23A.5 the New IPR provisions in clause 21 of these Terms will apply to New IPR created by HutSix with the assistance of the AI Tools subject to some IPR (a) provided by the AI Tools via AI Affiliates who provide large language models may be subject to certain third party rights or to open source licenses (in which case the open source provisions in clause 24 of these Terms will apply), and (b) generated by HutSix’s use of the AI Tools may also be generated for other users of the AI Tools who seek the same or similar outputs from the AI Tools to those of HutSix;

23A.6 unless agreed with the you, HutSix will not disclose or use any personal information provided by you on the AI Tools; and

23A.7 if HutSix notifies you of the specific AI Tool Provider used by HutSix, you consent to the terms of that AI Tool Provider.

24. HutSix is not required to conduct any backing up of your Data whether scheduled or otherwise. In such cases:

24.1 you are solely responsible for ensuring you back up and maintain copies of your Data; and

24.2 upon your request in writing HutSix will provide a configuration to allow you to access and retrieve Data; and

24.3 you agree that HutSix will not be Liable to you because of the loss, damage or corruption of any Data.

25. Subject to these Terms HutSix will use reasonable efforts to ensure the Hosting Services are available to you most of the time other than as a result of an Excluded Event. HutSix is not Liable to you for any unavailability of the Hosting Services which is caused by an Excluded Event and HutSix’s sole Liability to you for any other unavailability of the Hosting Services will be the relevant fee you have paid for the Hosting Services that relate to that period of unavailability.

26. In the above clauses:

Excluded Event means the Hosting Services are not available to you because:

(a) HutSix or its third party service providers perform scheduled system upgrades, enhancements and routine maintenance activities or for maintenance due to an emergency;

(b) HutSix suspends your access due to unlawful use by you of the Hosting Services, issues with the Data you host on the same (including importing of illegal materials or spamming), or because you are in breach of a Contract;

(c) of problems or unavailability of your internet services;

(d) of system administration, commands, file transfers performed by you;

(e) of the occurrence of an event specified in clause 78 (Force Majeure);

(f)  any error or unavailability of your software, hardware, or other technology or equipment used to access the Hosting Services.

Price and payment

Prices and invoicing

27. Total prices offered are in Australian dollars and are exclusive of any GST or any deductions or withholdings under Tax Law.

28. Where any supply to be made by one party (Supplier) to the other party (Recipient) under or in connection with this Contract is subject to GST (other than a supply the consideration for which is specifically described in this Contract as 'GST inclusive') the consideration payable or to be provided for that supply (GST Exclusive Consideration) will be increased by, and the Recipient shall pay to the Supplier, an amount equal to the GST payable by the Supplier in respect of that supply and the Recipient must pay that additional amount at the same time and in the same manner as the GST Exclusive Consideration payable or to be provided for that supply.  

29. Unless a Quote otherwise specifies HutSix will, for the duration of the Supply, supply you with regular invoices as and when determined by HutSix. If HutSix has provided a Quote, HutSix’s invoices will be for the offered price or calculated in accordance with the terms set out in a Quote (subject always to adjustments to fees as allowed in these Terms).  In respect of the Services, the Service Fee is payable as set out in the Quote including, if applicable, by instalments in accordance with the completion of each Milestone specified in a Quote. 

30. Where a Quote contains an estimate of the price for the Services you agree that this is an estimate and that HutSix will be entitled to invoice you based on the actual time spent by HutSix staff performing the Services by applying the hourly rates for such staff as set out in the Schedule of rates.

31. For Supply performed without a Quote, outside the scope of a Quote (Additional Supply), and for which no price has been stated, invoices will be calculated:

31.1 by applying HutSix’s then current Schedule; or

31.2 if the Supply performed is not covered by HutSix’s then current Schedule, then as HutSix would generally charge to its clients for like services.

32. Unless otherwise agreed in writing, where HutSix agrees to a variation to the Supply (including the time of performance or completion date or change to Website Specifications and hence the scope of the Services) then the offered price will be adjusted by amount agreed with you, or otherwise by applying HutSix’s then current Schedule to such variations. Where you request and HutSix accepts a delay in the performance of any Supply, you must pay HutSix an amount equal to that which HutSix determines (acting reasonably) HutSix suffers or incurs because HutSix has committed resources, including Staff, to such Supply.

33. An invoice is payable by you alone and under no circumstances may you withhold payment on the basis you are awaiting payment from any third party or request HutSix seek payment directly from any third party.

Price adjustment

34. If a Quote is prepared on incomplete, misleading or incorrect information provided by you then, on HutSix’s request, you must pay HutSix an additional amount equal to the difference between the offered price and what HutSix would have offered had the information supplied been accurate and complete.

Payment

35. Payments must be made by electronic transfer in cleared funds into an account nominated by HutSix. HutSix is not required to commence a Supply unless you first pay in full to HutSix any deposit or commencement fee specified in a Quote.

36. Unless a Quote otherwise specifies, you must pay each invoice within 14 days of the date of the invoice. If payment is overdue, HutSix may charge you interest at the Interbank Overnight Cash Rate as published by the Reserve Bank of Australia on its website plus 4% from the date of the default until HutSix receives payment in full. HutSix may apportion any part payments you make against any outstanding principal or interest as HutSix may decide.  HutSix may also apportion any payments you make under one Contract to amounts due under another Contract.

37. If payment is overdue under any Contract, HutSix may, in respect of any or all Contracts, suspend the provision of Supply. You must still pay HutSix for Supply already performed under any such Contracts.

38. You may not deduct from the price any set off, counterclaim or other sum unless HutSix agrees in writing.

Confidential Information

Confidentiality and privacy

39. A party may use or disclose Confidential Information about the other party only:

39.1 to perform its obligations under a Contract;

39.2 as required by the mandatory operation of law;

39.3 to its professional advisors (bankers, accountants, lawyers) for a proper purpose;

39.4 in respect of HutSix to any related company which has common shareholders to those of HutSix; and/or

39.5 with the other party’s prior written consent.

40. You agree that HutSix owns all Confidential Information that HutSix provides to you (including in respect of a Quote).  If you do not accept a Quote you agree not to provide HutSix’s Confidential Information in a Quote to any third party to assist them to perform the services HutSix quoted for.

41. HutSix agrees that you own all Confidential Information that you provide to HutSix including after the expiry or termination of a Contract.

42. Each party acknowledges that the Confidential Information is commercially valuable and that any breach of clauses 50 and 51 by either party will result in the other party suffering loss and damage. Each party acknowledges that damages alone may be an insufficient remedy for a breach of this clause and each party is entitled to see injunctive relief to prevent a breach of clauses 50 and 51 or for specific performance.

43. Each party agrees to return to the other party all of the other party’s Confidential Information (including copies and materials derived from or including the same) on the completion or termination of a Contract.

44. Each party agrees to comply with all applicable and mandatory privacy laws in carrying out a Contract.

Warranties and Claims

Warranties

45. HutSix warrants that the Website initially provided to you will be free from significant programming and operation errors and perform substantially in accordance with the Specifications when used in the environment contemplated by the Quote including that the Website will be compatible with the web browser versions specified in the Quote (Limited Warranty). 

46. The Limited Warranty does not extend to substantial non-performance of the Website which arises from problems with the interoperability of the Website with Other Systems, except to the extent HutSix has otherwise expressly agreed to in a Quote.

47. The Limited Warranty is valid for a period of 30 days from the earlier of the date the Website is completed, passes any Acceptance Tests or you make the Website publicly available (Warranty Period). During the Warranty Period HutSix will resolve at HutSix’s cost any significant programming and operation errors with the performance of the Website including arising from its use and access by the web browser versions specified in a Quote or the Specifications so long as you promptly notify HutSix during the Warranty Period (including full details of the nature of the error of the Website). Unless you give HutSix a notice within the Warranty Period, you will be deemed to have given HutSix Notice that the Website complies with Limited Warranty (you may give HutSix a notice by post or email - the details of which are set out in this clause).  HutSix Pty Ltd (ACN 641 834 344) GIVES THE LIMITED WARRANTY and has the following contact details Suite 6, 11 Todd Street, Alice Springs NT 0870, Freecall: 1800 421 621. The Limited Warranties are given in addition to other rights or remedies you may have under a law In relation to goods or services to which the Limited Warranties relate. 

48. This clause applies in respect of any supply made by HutSix to you, where you are a “consumer” within the meaning of section 3(1) of the Australian Consumer Law (being Schedule 2 of the Competition and Consumer Act 2010 (Cth)).  HutSix’s goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

49. HutSix does not warrant that the Website (including any Content Writing developed or written by HutSix) will result in any economic outcome for you including increased sales. HutSix does not warrant that the Website will be secure from hacking or unauthorised access or use.

50. To the extent permitted by law, HutSix makes no other warranty or representation as to fitness for use or performance or compatibility or otherwise of the Website or any other Supply.

Liability

51. HutSix’s liability for a breach of a condition or warranty of supply (including a condition or warranty implied by any law including by the Competition and Consumer Act 2010 (Cth)) or otherwise arising under or in connection with a Contract is limited to (as HutSix may decide):

51.1 in the case of goods, (i) the replacement of the goods or the supply of equivalent goods or the repair of the goods, or (ii) the payment of the cost of replacing the goods or of acquiring equivalent goods or of the cost of having the goods repaired; and

51.2 in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again.

52. HutSix will not be liable to you for any economic loss, consequential, contingent, special or indirect damages (including resulting from the loss of business, revenue or profit) with respect to Claims (including third party claims) arising in connection to a Contract or the Website, including any act or omission by HutSix in performing a Contract, for a breach of contract or for negligence or under any other theory of law (even if the risk of such loss or damage was known to HutSix or you).

53. Where either party suffers Liability as the result of the proportionate fault of both parties, the amount recoverable by either party (if any) is to be reduced to such extent as the court thinks just and equitable having regard to each party’s contribution to the overall fault for such Liability.

54. HutSix’s Liability to you for all Claims not caught by clause 62 is limited to a maximum amount equal to the lesser of $10,000 or the total amount you have paid HutSix for all Supplies in the 12 months before you first gave HutSix Notice of a Claim. You agree that:

54.1 this is a genuine pre-estimate of your likely Liability arising from a breach by HutSix;

54.2 if this clause was not included then either (a) the terms of the Contract on which HutSix would have agreed to provide the Supply would have been substantially different (including an increase in price), or (b) HutSix would have refused to enter into the Contract. 

55. To avoid any doubt, in no circumstances will HutSix’s Liability for any number of Claims (under these Terms and all Contracts) exceed in total the amount stated in clause 65.

Cost recovery  

56. Both parties must pay to the other party all costs, expenses and disbursements (including reasonable legal fees on an lawyer /client basis) incurred in the recovery of monies owed by either party or in otherwise enforcing the other’s rights under a Contract.

Termination

Termination

57. Either party may terminate all or any Contracts by Notice to the other party if:

57.1 the other party fails to pay any amount in full within 28 days of the due date under a Contract;

57.2 the other party materially breaches any term or condition in a Contract and fails to remedy that breach within 14 days of Notice or immediately if the breach cannot be remedied;

57.3 the other party is subject to a Bankruptcy Event;

58. Where the Corporations Act 2001 (Cth), stays or prevents a party from exercising a right to terminate a Contract under clause 68.3, that party may suspend the performance of its obligations under a Contract unless and until the controller or administrator in respect of the other party (Affected Party) provides undertakings in writing acceptable to that party that the Affected Party is and will remain able to perform its obligations under the applicable Contract. In this clause controller and administrator have the meaning given in section 9 of the Corporations Act 2001 (Cth).

59. This clause applies in respect of any supply made by HutSix to you, where you are a “consumer” within the meaning of section 3(1) of the Australian Consumer Law (being Schedule 2 of the Competition and Consumer Act 2010 (Cth)).  HutSix’s goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled: (a) to cancel your service contract with HutSix; and (b) 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 services.

60. Termination does not affect any of HutSix’s rights or remedies existing before termination or arising from termination. Clauses 9, 10, 47, 50, 51, 52, 54, 62, 63, 64, 65, 66, 67, 69, 73, 75, 88, 89 and 91 survive the termination of a Contract.

61. Any right or obligation accrued before the termination remains in force and does not affect any right or remedy of either party in respect of any breach before the termination.

62. Neither party may speak publicly about the termination of any or all of the Contracts without the prior written consent of the other party.

63. Either party may terminate these Terms on 30 days’ notice. To avoid doubt termination of these Terms does not affect any Contract in place at the time of such termination of these Terms.

General

No poaching

64. Subject to any Quote, you agree that you will not, without HutSix’s prior written consent, directly or indirectly solicit, employ or engage any Staff:

64.1 during a Contract; and

64.2 for a period of 12 months from the completion of a Contract if the Staff has been engaged in providing the Supply to you.

Instructions and communications

65. Unless you give HutSix Notice to the contrary, HutSix will assume that:

65.1 all of your employees, directors and officers who give HutSix instructions are authorised to do so and that HutSix may act on oral instructions;

65.2 HutSix may communicate with you by email; and

65.3 you will direct all communications concerning a Contract to a HutSix team leader as nominated by HutSix from time to time.

66. HutSix is not liable to you for any Liability suffered by you which results from HutSix or its Staff following your directions or specifications in providing or in performing the Supply.

Force majeure

67. HutSix will not be liable for failure to perform HutSix’s obligations under a Contract to the extent and for so long as HutSix’s performance is prevented or delayed because of circumstances outside of HutSix’s direct control (including labour disputes, obtaining labour, destruction or damage to HutSix’s premises or a relevant Supply site, default or insolvency of any third party, an act of government or governmental authority, terrorism, disruption to the supply of power, gas, internet, water, electronic or telecommunication services, civil disorder, pandemic, the weather or other natural events) and without fault or negligence by HutSix, but only if HutSix:

67.1 gives Notice to you as soon as practicable; and

67.2 does everything reasonable to remedy the cause quickly.

68. HutSix may terminate a Contract 30 days after a Notice is issued under clause 78 if, in HutSix’s opinion, HutSix is unable to perform that Contract or can only perform that Contract at a loss due to the effects of such an event.

Assignments and amendments

69. You may not assign your rights or obligations under a Contract without HutSix’s prior written consent. If after the date of HutSix’s first Supply to you, you sell the majority of your assets or the persons controlling you change (because of the issue, transfer or sale of shares) then there will be deemed to be an assignment by you requiring HutSix’s consent (which such consent HutSix will not unreasonably withhold).

70. HutSix may use agents and subcontractors to perform any part of the Supply without notifying you or obtaining your consent.

71. These Terms and each Contract can only be amended by agreement in writing.

Notice

72. Notice can only be in writing (sender).

73. Notice can only be given to a party (recipient):

73.1 personally;

73.2 by registered post to the recipient's last known place of business or residence. Notice by post is deemed to be received at the time at which the letter would be delivered in the ordinary course of post; and/or

73.3 by email to a recipient’s last known email address. Notice by email is deemed to be received immediately after it is sent unless a delivery failure or delay message is received by the sender within 48 hours; but

73.4 if any notice is deemed to be received at a time which is outside normal business hours in the place where the recipient is, the notice will be deemed to be received at the beginning of normal business hours on the next business day in that place.

Costs and Entire Agreement

74. Unless otherwise provided in a Contract, a party must pay its own costs and expenses in carrying out its obligations.

75. Each Contract is the whole agreement between the parties about its subject matter and supersedes any prior contract or obligation between the parties about its subject matter (including term sheet and heads of agreements). 

No waiver

76. A party waives a right under a Contract only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.

Law, Jurisdiction and Disputes

77. These Terms and each Contract are governed by the laws in the Northern Territory. Subject to clause 89 and 90, the parties submit to the exclusive jurisdiction of the courts of the Northern Territory and the Federal Circuit Court of Australia (Alice Springs Registry).

78. Subject to these Terms, all disputes arising out of or in connection with this these Terms and any Contract, including any question regarding the existence, scope, validity, or termination of these Terms or a Contract or this clause (and including any tortious or statutory claims), will be referred to and finally resolved by arbitration under the Rules of Resolution Institute, which Rules are deemed to be incorporated by reference into this clause but subject to the following:

78.1 the number of arbitrators shall be 1; and

78.2 the place of the arbitration shall be Alice Springs, Northern Territory.

79. Clause 90 does not apply to any dispute as to the payment of any fees by you to HutSix including the Service Fee. Nothing in this clause prevents HutSix from bringing proceedings to obtain an urgent court injunction or order to prevent any potential serious or irreparable harm to HutSix in any court having jurisdiction in respect of matters connected to these Terms and any Contract.

Meanings and interpretation

80. In these Terms:

Acceptance Tests means the tests (if any) specified in the Specifications or Quote.

Bankruptcy Event means a person (a) becomes a Chapter 5 body corporate, (b) becomes an insolvent under administration or has steps taken against them to make them an insolvent under administration, (c) has a controller appointed over any of its property, (d) has a resolution passed for its winding up or liquidation, (e) cannot pay its debts as and when they fall due, (f) has proceedings brought against it under any bankruptcy or insolvency law and such proceedings are not discharged or stayed within 15 days, or (g) causes or is subject to any event that has analogous effect to any of the above (words italicized in this section have the meaning given in section 9 of the Corporations Act 2001 (Cth)).

Claim means, in relation to a party, a demand, threat, claim, action or proceeding made or brought by or against the party, however arising and whether present, unascertained, immediate, future or contingent.

Confidential Information means any confidential or proprietary information (in any form) obtained in connection with a Contract (including the terms of a Contract and any notes or copies of confidential information). It, however, excludes information which:

is or becomes a matter of public record other than by a breach of these Terms;

the discloser certifies in writing as not being confidential; and/or

the recipient proves it lawfully possessed the information before obtaining it in connection with a Contract.

Contract means each and any contract for the performance of Supply by HutSix to you.

Customer Material means all data, logos, graphics, photographs and other content required for the Website other than materials or content which the Quote requires HutSix to procure, develop or provide as part of the Services and includes any amendments you make or direct to any Content Writing HutSix prepares for you.

Documentation means any manuals and other written materials (including in electronic form) concerning the Website that HutSix agrees in a Quote to prepare and provide to you.

Existing IPR means all IPR and Materials of HutSix in existence prior to the commencement of the Services and any Improvements made to the same by HutSix in performing the Services.

HutSix means Hut Six Pty Ltd (ACN 641 834 344) of Suite 6, 11 Todd Street, Arrernte Country, Alice Springs NT 0870.

GST means any goods and services tax imposed (as applicable) under Australian law.

IPR means all intellectual property rights, title and interest including in patented and unpatented inventions, copyright (including in source code, data sets and algorithms), trade secrets, know-how and trade marks (registered or unregistered).

Liabilities means Claims, losses, liabilities, costs or expenses of any kind and however arising, including penalties, fines and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.

Materials means any all software, source code, object code, or other materials created by HutSix in relation to the Website (whether in a material form or not) and includes, without limitation, manuals, specifications, development, performance and implementation documentation and test materials.

Milestones means the milestones (if any) specified in the Quote.

Milestone Due Dates means the dates (if any) for performance of the Milestones as specified in a Quote or agreed in writing.

New IPR means all IPR and Materials developed by HutSix in providing the Services and provided to you which is not Background IPR.

Improvements means all improvements, fixes, patches, modifications, customisations or adaptations made to specified IPR (including all documentation and source code relating to the same).

Notice means written notice by post or email.

Policies means any of HutSix’s policies (whether attached to a Quote or these Terms or available at a website specified by HutSix) which HutSix otherwise applies to the applicable Supply being provided (each as amended or re-issued by HutSix from time to time) including the Support Policy (if any).

Quote means any written quote or proposal or written offer from HutSix to you to perform Supply including any statement of works HutSix gives you which references or attaches these Terms in respect of website development services.

Schedule means any of HutSix’s schedules of rates and prices from time to time including:

(a)  the hourly rates for HutSix’s Staff with particular expertise; and

the price for any particular Supply.

Services means a Supply comprising of HutSix providing website development services to you and/or website scoping and advice services in respect of the potential development of a website for you, as set out in an applicable Quote.

Supply means HutSix’s provision of services to you under a Contract as set out in a Quote or, if outside the scope of a Quote, as agreed with you and includes all Services.

Specifications means any specifications for the Website  specified in a Quote.

Staff means any of HutSix’s employees, contractors or agents engaged by HutSix to perform the Supply.

Support Policy means HutSix’s policy, if any, as provide by HutSix to you with a Quote or available from a website designated by HutSix.

Tax Law means all forms of taxation, duties, levies and imposts of any jurisdiction (Federal, State or Local).

Third Party IPR means any third party software (including software tools) used in the Website and any other content including stock images or photographs.

Website means the website (including portal if applicable), accessible via the world wide web which provides multimedia content via a graphic user interface as set in the Specifications.

Updates means all improvements, content updates, fixes, modifications or adaptations made from time to time by HutSix to the Website.

You means the person or company signing or accepting these Terms.

81. In these Terms:

81.1  a reference to “$” or “dollars” is to the lawful currency of Australia;

81.2  a reference to “law” means singular includes plural and vice versa;

81.3  reference to a person includes a corporation and partnership and vice versa;

81.4  headings do not affect interpretation;

81.5  no rule of construction applies to the disadvantage of a party because that party put forward these Terms or a Contract or any portion of it;

81.6  if any part of a Contract would be unenforceable, the provision must be read down to the extent necessary to avoid that result, and if the provision cannot be read down to that extent, it must be severed without affecting the validity and enforceability of the remainder of the Contract;

81.7  where HutSix is required to provide you with any written document or information HutSix may do so electronically;

81.8  reference to a party includes a successor to the rights or obligations of that party under this Terms and its officers, employees and agents;

81.9  a reference to a web browser version in a Quote is the stated version of that web browser; and

81.10any agreement or consent made or given under these Terms must be in writing and writing includes by email exchange.

HUT SIX PTY LTD (ACN 641 834 344)

Version Control: Version 1.1

Dated: 17 March 2021