Terms of service

TERMS AND CONDITIONS
THE MAD CATTER PTY LTD (ACN 677 719 970)
1.
Definitions
1.1.
“Agreement” means any agreement entered into between The Mad Catter and the Customer for the delivery of Goods and/or Services from time to time. This definition may include but is not limited to these Terms and Conditions, quotations, design proofs, variation(s), and project timeline(s).
1.2.
“Authorised Representative” means a person(s) that The Mad Catter or the Customer authorises to act on their behalf, and includes a person(s) that is held out to have such authority.
1.3.
"Customer" means the person/s or entities buying the Goods and/or Services as specified in the Agreement, and if there is more than one Customer, is a reference to each Customer jointly and severally.
1.4.
“Goods” means any item, material, product, or good of any kind supplied by The Mad Catter to the Customer pursuant to the Agreement, as varied in accordance with Agreement.
1.5.
“Intellectual Property” means copyrights, patents, trademarks, designs, specifications, confidential information, manufacturing processes and/or modifications, including but not limited to Trademark No. 2473159.
1.6.
"The Mad Catter" means THE MAD CATTER PTY LTD (ACN 677 719 970) as described in the Agreement, and/or their Related Entities, its successors and assigns.
1.7.
"Price" means the Price payable for the Goods and/or Services pursuant to the Agreement between The Mad Catter and the Customer, as varied in accordance the Agreement.
1.8.
“Provider” means any third-party supplier or owner of an application or equipment that The Mad Catter uses for the Goods and/or Services.
1.9.
"Services" means the services provided by The Mad Catter to the Customer pursuant to the Agreement, as varied in accordance with the Agreement.
2.
Acceptance
2.1.
These Terms and Conditions apply to each and every supply of Goods and/or Services between The Mad Catter and the Customer.
2.2.
The Customer accepts and is immediately bound by these Terms and Conditions if the Customer:
2.2.1.
completes and returns a signed Agreement; or
2.2.2.
pays for the Goods and/or Services; or
2.2.3.
provides The Mad Catter with written instructions to proceed with the provision of Services after having received any proposed Agreement.
2.3.
In accepting these Terms and Conditions, the Customer also agrees:
2.3.1.
to be bound by any relevant terms and conditions of any Provider;
2.3.2.
to abide by all of the governing terms and provisions of the Agreement; and
2.3.3.
they have had the opportunity to obtain independent legal advice prior to accepting the Agreement.
2.4.
These Terms and Conditions may only be amended with The Mad Catter’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and The Mad Catter.
2.5.
The Customer may request that The Mad Catter provide additional Services. If so, The Mad Catter will issue either:
2.5.1.
a new variation which will form a part of the Agreement; or
2.5.2.
a new Agreement for acceptance.
2.6.
The Customer is taken to have accepted a variation pursuant to Clause 2.4 if:
2.6.1.
the Customer signs and returns a copy of the variation/Agreement; or
2.6.2.
accepts the variation in writing; or
2.6.3.
continues to provide instructions to The Mad Catter for the delivery of services following receipt of the variation.
3.
Price and Payment
3.1.
The Customer undertakes to pay The Mad Catter the Price in accordance with the terms of the Agreement without set off or deduction for any reason. If no time period is specified, payment of the Price, from time to time, must be made within fourteen (14) days of the delivery of a tax invoice. This is an essential term of the Agreement.
3.2.
Unless otherwise stated, the Price in any offer may be accepted for a period of fourteen (14) days.
3.3.
The Customer acknowledges that The Mad Catter may require, at its sole discretion, payment of the Price in full prior to completing the design proof and/or ordering the Goods and/or Services..
3.4.
The Customer accepts that the Price is subject to change in the following circumstances:
3.4.1.
If the Customer requests a variation to the Goods and/or Services; or
3.4.2.
If the Customer changes the project timeline for the delivery of the Goods and/or Services; or
3.4.3.
If The Mad Catter is forced to replace the Goods and/or Services with alternative Goods and/or Services which have the same practical outcome as the original Goods and/or Services; or
3.4.4.
If there is an increase in the purchase price of Goods or the cost of labour for the Services.
3.5.
If the Price is changed pursuant to Clause 3.4, The Mad Catter will provide written notification of variation in the Price and the Customer is taken to have accepted the variation of Price if they:
3.5.1.
sign and return a copy of the variation; or
3.5.2.
accept the variation in writing; or
3.5.3.
continue to provide instructions to The Mad Catter for the delivery of Goods and/or Services following issue of the variation.
3.6.
Payment may be made by electronic/online banking or by any other method as agreed to between the Customer and The Mad Catter.
3.7.
Any gift cards expire twelve (12) months from the date of issue. Cards are not refundable. Lost or stolen cards cannot be replaced.
3.8.
Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to The Mad Catter GST on the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
4.
Credit, Security, and Charge
4.1.
In consideration of the Customer agreeing to any supply Goods and/or Services prior to receiving payment (credit), the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty, personal property or other assets capable of being charged, including debts, owed by or to the Customer, either now or in the future, to secure the performance by the Customer of its obligations under the terms of any Agreement (including, but not limited to, the payment of any money).
4.2.
The Mad Catter retains title to all Goods suppled until the Price has been paid in full.
4.3.
To protect the security given by the Customer under this Agreement, the Customer consents to The Mad Catter registering a security interest, (including as an AllPAAP and PMSI) on the Personal Property Security Register, or to lodge a caveat over any land in which the Customer has a beneficial or legal interest.
4.4.
The Customer irrevocably appoints The Mad Catter as the Customer’s attorney and authorises them to perform all necessary acts (including signing documents) to give effect to the provisions of this clause.
4.5.
The Customer authorises The Mad Catter to conduct a search of the Customer’s credit, information, or records.
5.
Obligation to pay for Goods and/or Services
5.1.
Payment for the Goods and/or Services is due and payable by the Customer on the date that The Mad Catter issues the Customer an invoice or quote for payment. The Mad Catter reserves the right to delay or withhold performance of its obligations under this Agreement in the event the Customer fails to pay any amounts due for the Goods and/or Services in strict accordance with this Clase 5.1.
5.2.
If The Mad Catter has delivered Goods and/or Services in accordance with the project timeline, risk in the Goods passes to the Customer on delivery.
5.3.
The Customer must accept delivery of the Goods and/or Services in accordance with the project timeline. If the Customer delays delivery of the Goods and/or Services, then the Customer is liable to pay The Mad Catter all loss arising from that delay on a full indemnity basis.
5.4.
Any time or date given by The Mad Catter to the Customer with respect to the delivery of the Goods and/or Services is an estimate only. The Customer must still accept delivery of the Goods and/or Services, even if delivery is late, and The Mad Catter will not be liable for any loss or damage incurred by the Customer as a result of same.
6.
Warranties
6.1.
The Mad Catter has control over the timing and method of delivery of the Goods and/or Services to meet the project timeline.
6.2.
Subject to Clause 6.3, at the time of delivery, The Mad Catter warrants to the Customer that the Goods and the Services have been provided with reasonable skill, care, and attention.
6.3.
The Mad Catter will resolve issues or errors which occur:
a)
within twenty-one (21) days following the date of completion of the Services; or
b)
the period prescribed in the Agreement.
6.4.
The Mad Catter will not be responsible for issues or errors which arise out of or in relation to the Customer’s misuse, negligence, or deliberant damage.
6.5.
If the Customer identifies any issues or errors, the Customer must first approach The Mad Catter for repair or replacement. The Customer may only receive a refund at The Mad Catter’s discretion.
7.
Liabilities, Limitation of Liability, and Indemnity
7.1.
To the maximum extent permitted at law, including under the Australian Consumer Law:
7.1.1.
The Mad Catter shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit), or other economic loss, allegedly suffered by the Customer and arising out of a breach by The Mad Catter of the Agreement.
7.1.2.
In all events, The Mad Catter’s maximum liability shall be limited to the lesser of:
(a)
the amount of the Price paid by the Customer to The Mad Catter for the particular Goods and/or Services subject of an alleged breach; or
(b)
the cost of repairing or replacing the Goods and/or Services the subject of an alleged breach.
7.1.3.
The Mad Catter is not liable for any loss arising from or related to it following the directions of the Customer, supply chain issues with Goods, manufacturer defects in Goods, strikes, industrial action, adverse weather conditions, fire, flood, COVID-19 outbreaks or any other cause beyond its control.
7.1.4.
The Mad Catter has no liability whatsoever to the Customer arising from any incident, event, or occurrence arising during or following delivery of the Goods and/or Services.
7.1.5.
The Mad Catter is under no liability for any loss arising from errors, issues, or defects caused or contributed to by the intentional, reckless, or negligent actions of the Customer or a third party at the property or the site.
7.2.
The Customer acknowledges and agrees that The Mad Catter may utilise Providers in delivering the Services, and that the Customer is responsible for complying with any relevant terms and conditions, and any reasonable directions for such Providers.
7.3.
The Customer acknowledges and agrees that The Mad Catter does not make representations on behalf of any Providers, and that The Mad Catter is not liable or responsible for any negligence, breach, or other incident that may arise between the Customer and/or any Provider.
7.4.
The Customer agrees to indemnify The Mad Catter against any loss, cost or damage sustained by The Mad Catter, any Provider, or by the Customer. This includes any property supplied by The Mad Catter (or a Provider) for delivery of the Services, which are damaged as a result of the Customer’s conduct.
7.5.
The Customer agrees to indemnify, defend, and protect The Mad Catter from and against all lawsuits and costs of every kind pertaining to the Customer’s business including reasonable legal fees due to any act or failure to act by the Customer based upon delivery of the Services.
8.
Intellectual Property & Ownership
8.1.
Each party expressly retains their own Intellectual Property.
8.2.
If The Mad Catter, by itself or with others, develops any Intellectual Property during the performance of the Agreement, it expressly retains ownership of it.
8.3.
The Customer shall not use, reproduce or distribute The Mad Catter’s Intellectual Property, which expressly includes but is not limited to Trademark No. 2473159, in any way.
8.4.
All of the provisions of Clause 8 shall survive any termination of any Agreement between the parties.
9.
Default and Consequences of Default
9.1.
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of five percent (6%) per calendar month (and at The Mad Catter’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
9.2.
If the Customer owes The Mad Catter any money, or is liable to The Mad Catter for any loss or damage, the Customer shall indemnity The Mad Catter from and against all loss, costs and disbursements incurred by The Mad Catter in recovering the amount (including but not limited to internal administration fees, legal costs on a full solicitor client indemnity basis, The Mad Catter contract default fees, and bank dishonour fees).
9.3.
Without prejudice to any other remedies The Mad Catter may have, if the Customer is in breach of the Agreement:
9.3.1.
The Mad Catter may suspend or terminate the supply of Goods and/or Services to the Customer by providing written notice. The Mad Catter will not be liable to the Customer for any loss or damage the Customer suffers because The Mad Catter has exercised its rights under this clause; and/or
9.3.2.
the Customer irrevocably authorises The Mad Catter to enter upon such land as necessary to remove any Goods. These Terms and Conditions are evidence of the Customer’s express written irrevocable authorisation.
9.4.
Without prejudice to The Mad Catter’s other remedies at law or under the Agreement, in the event of a breach of a condition of the Agreement, or a breach of a term which cannot be remedied within a reasonable time or is not remedied following receipt of a notice of breach, then The Mad Catter is entitled to terminate the Agreement. If terminated under this clause, the Customer becomes immediately liable to pay the full amount of the Price as varied in accordance with the terms of the Agreement, plus all loss. Examples of termination events include, but are not limited to:
9.4.1.
If any money payable to The Mad Catter becomes overdue;
9.4.2.
In the event of an unsafe or unhealthy workplace, including a workplace free from bullying and harassment or other psychosocial hazards;
9.4.3.
the Customer becomes bankrupt, insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors.
10.
Dispute Resolution
10.1.
If a dispute arises between the parties to this contract, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. If the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
10.1.1.
referred to a single arbitrator to be nominated by the President of the Resolution Institute; and
10.1.2.
conducted in accordance with the rules of the Resolution Institute as in place from time to time.
10.2.
The unsuccessful party will be liable for the costs of the arbitration.
10.3.
Any decision of an arbitrator will be binding and will be registrable as a judgment in a Court of competent jurisdiction.
11.
Privacy Act 1988
11.1.
The Customer authorises The Mad Catter to collect any personal, sensitive, and business information to enable The Mad Catter to provide the Goods and/or Services to the Customer, or for the purposes of conducting due diligence or credit checks or reporting on the Customer.
11.2.
The Customer warrants that, where the Customer provides The Mad Catter with personal information about another person, the Customer has ensured that the other person knows or understands what information was provided, and that the Customer has their consent to do so.
12.
Termination
12.1.
The Mad Catter may terminate the Agreement to which these Terms and Conditions apply and/or cancel the delivery of any Goods and/or Services at any time before the Goods and/or Services are delivered by giving written notice to the Customer. The Mad Catter shall not be liable for any loss or damage whatsoever arising from such cancellation.
12.2.
If the Customer terminates the Agreement and/or requests a variation that results in a termination of the Agreement, the Customer acknowledges and agrees that the Customer:
12.2.1.
remains responsible for payment of any Goods delivered and/or ordered in anticipation of delivery and/or Services provided up until termination; and
12.2.2.
shall be liable for all loss incurred (whether direct or indirect) by The Mad Catter as a result of the termination (including, but not limited to, lost profits, costs of materials and labour, and legal costs.)
13.
General
13.1.
The failure by The Mad Catter to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect The Mad Catter’s right to subsequently enforce that provision. If any provision of these Terms and Conditions shall be invalid, void, illegal or unenforceable, the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced, or impaired.
13.2.
These Terms and Conditions and any Agreement to which they apply shall be governed by the laws of the state of New South Wales in which The Mad Catter has its principal place of business and are subject to the exclusive jurisdiction of the courts of New South Wales.
13.3.
The Customer agrees that The Mad Catter may amend these Terms and Conditions at any time. If The Mad Catter makes a change to these Terms and Conditions, then that change will take effect from the date on which The Mad Catter notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for The Mad Catter to provide Goods and/or Services to the Customer or if the Customer objects to the change within fourteen (14) days of notice.
13.4.
Neither party shall be liable for any default due to war, terrorism, strike, lock-out, industrial action, fire, flood, storm, pandemic, or other event beyond the reasonable control of either party.
13.5.
The Customer represents and warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent, and that this agreement creates binding and valid legal obligations on it.