1.1 These Terms and Conditions (“T&Cs”) set out the terms upon which Synergy CS Pty Ltd (Trading as Synergy Fundraising) (SF) will provide (“Services”) from time to time to the party(s) (“Customer”).
1.2 These T&Cs apply to all Services provided by SF and are the only terms on which SF will perform Services.
2.1 SF and the Customer will enter into a Contract in one of the following ways prior to SF providing Services:
(a) by the Customer accepting of SF’s Contract (a proposal, quotation or authority to proceed) for Services to be provided by SF, the Price and other relevant terms.
(b) by the Customer requesting SF to commence providing Services set out in the proposal, quotation or authority to proceed
(c) by the Customer continuing to instruct SF in relation to any services.
2.2 The Contract may include specific terms.
2.3 In the case of any inconsistency between specific terms on the Contract and these T&Cs, the terms of the Quotation will prevail.
3.1 Any price quoted by SF (‘Price’) is fixed for 30 days. If the Customer does not enter into a Contract within that period, SF may vary the Price.
4. Cancellation and Alteration
4.1 A Contract cannot be altered or cancelled except with the written consent of SF.
4.2 If a Contract is cancelled or amended the Customer must pay SF for all work performed and materials used or specially obtained by SF for the Customer under the Services Contract.
4.3 All SF contracts include 50% payment required 14 days from the date the contract was agreed to by both the Customer and SF. This 50% is non-refundable in the event of a contract being cancelled
4.3 Notwithstanding clauses in section 3 and 4, SF shall be entitled to vary the Price in anyway should the Customer make any alteration to the Contract after an agreement between the parties.
5. Customer Warranties
5.1 The Customer warrants it will provide SF with all information, data, documents, specifications and other inputs needed or requested by SF to provide the Services (“Customer Property”).
5.2 The Customer must allow SF reasonable access to any of its premises, systems, intellectual property, donor data and information on previous fundraising activities as required to deliver the best outcomes.
5.3 The Customer warrants that the work to be performed by SF and the Customer Property will not include any material that is defamatory or that infringes any rights of any third party (including any copyright or confidential information).
6. Performance Dates and Delays
6.1 Subject to the Customer fulfilling its obligations under clause 5, SF must provide the Services to the Customer in accordance with any agreed time frame outlined in the Contract.
7.1 SF may arrange for the performance by a third party of part or all its obligations under these T&Cs without the Customer’s consent.
7.2 Where SF arranges for the performance of any work by a third party, SF, in arranging that work, will act as an agent for the Customer and, subject to any written directions of the Customer, may bind the Customer to terms and conditions for having the work carried out as SF reasonably sees fit and the Customer will indemnify SF for the full cost of any work so arranged.
7.3 SF will not be responsible for any failure or breach by any third-party contractor appointed under this clause 7, but SF must give all assistance at the request and cost of the Customer that is reasonably necessary for the Customer to pursue any claim against and to recover from that third party.
8.1 The Customer must pay SF in accordance with the requirements of the contract.
8.2 Unless otherwise specified in a Services Contract, all amounts payable under a Services Contract will be exclusive of Goods and Services Tax (GST) as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the Customer must pay all amounts on account of GST once the Customer has received a tax invoice.
9. Intellectual Property Rights
9.1 All intellectual property rights arising in connection with any name, product, process or method employed in the provision of the Services are and will remain the exclusive property of SF and this agreement does not create or transfer any ownership or licence of intellectual property rights in favour of the Customer.
The Customer must do anything reasonably required by SF to protect any of SF’s rights under this clause, including the prompt execution of any deeds or documents submitted by SF for that purpose.
10. Warranties and Limitation of Liability
10.1 Where conditions, warranties or other rights for the benefit of the Customer are implied or given in respect of a Contract by the Competition and Consumer Act 2010 (Cth) or other laws and it is not lawful or possible to exclude them, then such conditions, warranties or other rights will only apply to a Contract to the extent required by law.
10.2 To the extent that SF may limit its liability for breach of implied conditions and warranties, SF’s liability for any breach of any such condition or warranty will be limited:
(a) in the case of goods supplied, to SF’s choice of:
(i) the replacement of goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring or hiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired
(b) in the case of services supplied, to SF’s choice of:
(i) the supplying of the services again, or
(ii) the payment of the cost of having the services supplied again.
(c) Subject to this clause and despite any implications arising from any other provisions of these T&Cs or any Services Contract, the total liability of SF in contract, in tort (including negligence), under statute (to the extent permitted by law) or otherwise for, or in respect of, any loss or damage arising out of any breach or other act or omission in connection with any Services or Contract, together with any amounts payable under obligations of indemnity, restitution or other entitlements, of the Customer to compensation, will not exceed the amount of fees paid by the Customer to SF under the relevant Contract.
In no circumstances will SF be liable for any loss of data or loss of profits, revenues, business goodwill or any indirect, consequential or economic loss, howsoever arising, in relation to or otherwise in connection with a Contract.
11.1 In this clause, “confidential information” means information disclosed by or on behalf of one party (Discloser) to the other party (Recipient) or of which the Recipient becomes aware, during the term of a Services Contract or in prior discussions between the parties in anticipation of a Services Contract, including:
(a) information designated as confidential by the Discloser; and
(b) any other information which by its nature should reasonably be considered to be confidential information of the Discloser or of a person to whom the Discloser owes a duty of confidence.
11.2 Confidential information does not include any information which the Recipient can prove either was in the public domain or was known by the Recipient at the time of disclosure, other than through a breach of its confidentiality obligations.
11.3 The Recipient must keep all confidential information confidential and may only disclose it to a third party with the prior written consent of the Discloser. The Recipient may disclose confidential information to its employees, agents or contractors to the extent such disclosure is necessary for the Recipient to carry out its obligations under a Services Contract and provided that its employees, agents or contractors are bound by obligations of confidentiality that reflect the Customer’s obligations under this clause 11.
12.1 The parties must not do any act or thing which causes the other party to be in breach of the Privacy Act 1988 (Cth) as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth), the Australian Privacy Principles and the Spam Act 2003 (Cth) (the Privacy Act).
12.2 Each party must immediately notify the other party if it becomes aware of any complaint, unauthorised use or disclosure (Complaint) in respect of any use or disclosure of personal information (as defined in the Privacy Act) under or in connection with a Services Contract and provide reasonable assistance to the other party to enable the Complaint to be promptly resolved.
13.1 Either party may terminate a Services Contract without cause by giving the other party 60 days written notice.
13.2 Either party may immediately terminate a Services Contract by giving written notice to the other party if:
(a) a receiver, receiver and manager, administrator, trustee or inspector, or other person with similar powers, is appointed in respect of the other party or over all or any part of the other party’s assets;
(b) winding up proceedings are commenced in respect of the other party or the other party ceases to carry on business;
(c) the other party enters into a compromise or arrangement with its creditors; or
(d) the other party is unable to pay all its debts as and when they become due and payable or is deemed to be insolvent under any provision of the Corporations Act or any statute or any other law.
13.3 If either party is in material breach of its obligations under a Services Contract and:
(a) that breach is incapable of rectification; or
(b) that breach is capable of rectification, but is not rectified by the party in default within 30 days after receiving notice in writing from the other party requiring that it be rectified, then the other party is entitled to terminate the Services Contract by giving written notice to the party in default of the termination, which will be effective immediately unless otherwise stated in the notice.
14.1 This agreement is governed by the laws of New South Wales and the parties submit to the jurisdiction of its courts.