Terms & Conditions

Certain legislation in Australia may provide consumer guarantees or impose obligations on Harti which cannot be excluded, restricted or modified. These terms and conditions are subject to such legislation, including without limitation the Australian Consumer Law.

References to laws and legislation are to the laws and legislation in Australia, but include analogous or comparable laws in the jurisdiction of the Authorised User where those laws cannot be excluded by contract.

1. Definitions And Interpretation

Active User means an Authorised User who has downloaded the App from the App Store or Google Play.

App means the HartiCare app.

Australian Consumer Law means the law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Authorised User means those employees, agents, and independent contractors of the Customer who are authorised by the Customer to use the Services under these terms and conditions. An authorised user may also include those persons who download the iOS or Android App.

Business Day means a day on which all banks (as defined in the Banking Act 1959) with offices in the City of Adelaide are open for business in the City of Adelaide. Business Hours means between the hours of 9.00am and 4.00pm (AEST).

Commencement Date means the date set out in an Order Acknowledgement or the date that access is provided to the Services or the Software is downloaded or accessed.

Confidential Information means all information provided by one party to the other in connection with these terms and conditions where such information is identified as confidential at the time of its disclosure or ought reasonably be considered confidential based on its content, nature or the manner of its disclosure, but excluding information that enters the public domain or is disclosed to a party by a third party, other than through a breach of these terms and conditions.

Corporations Act means the Corporations Act 2001 (Cth).

Customer means the customer specified in an Order, Order Acknowledgement, Harti's invoice or quotation or the person or entity that acquires the Services from Harti. For the avoidance of doubt any person who acts as a ‘Carer’ within the App is regarded as a Customer.

Customer Data means all works and materials:

• uploaded to, stored on, processed using or transmitted via the Services or the Software by or on behalf of the Customer, Users, or Harti on the Customer’s behalf; and
• otherwise provided by the Customer to Harti in connection with these terms and conditions.

Device means a device, usually electronic, that processes data according to a set of instructions, which may include workstations, personal computers, laptops, netbooks, personal digital assistants, tablets and smartphones.

Documentation means any documentation (whether electronic or printed) made available via the Website or otherwise provided by Harti to the Customer which accompanies the Services or Software.

Fees means the Instalment Fee, the User Subscription Fee and the Licence Fee, where the context permits.

Force Majeure Event means any event beyond the control of the relevant party.

GST means the tax payable on taxable supplies under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Insolvency Event means:

• In relation to a natural person, that person becoming an insolvent under administration as that term is defined in the Corporations Act;
• In relation to a body corporate, that body corporate being deregistered, suffering the appointment of a controller over any of its assets, suffering the appointment of a provisional liquidator, (except to reconstruct or amalgamate while solvent) or becoming a Chapter 5 body corporate as that term is defined in the Corporations Act; or
• anything analogous or having a substantially similar effect to the events specified in the paragraphs above occurs in relation to a party.

Instalment Fee means the amount set out in an accepted quotation or proposal of Harti or in an Order confirmed in an Order Acknowledgement (or as otherwise set out on the Website).

Intellectual Property Rights means any and all, current and future, intellectual and industrial, property rights and interests, including any:

• patents, trade marks, service marks, rights in designs, trade names, copyrights, topography rights, utility models, eligible layout rights, inventions, discoveries, trade secrets, Confidential Information, know-how, software and improvements, and any applications, or rights to apply, for registration of any of them;
• rights under licences and consents in relation to any of them; and
• other forms of protection of a similar nature or having equivalent or similar effect to any of them, in Australia and in the world, whether registered or unregistered, for the duration of the rights and interests.

Liability means any claim, action, loss, cost, expense, charge, outgoing or payment (including any legal costs, on a full indemnity basis) and damage or liability of any kind.

Maintenance Services means such routine maintenance services as Harti considers necessary to ensure the proper functioning of the Services, including:

• reviewing the Services on a regular basis and applying updates where appropriate; and
• performing regular security and maintenance checks for evidence of security breaches, software malfunction and resource limit warnings.

Personal Information has the meaning as defined in the Privacy Act.

Privacy Act means the Privacy Act 1988 (Cth).

Privacy Laws means any Laws relating to privacy or requiring secrecy or confidentiality in dealing with information, including:

• any laws relating to the protection of Personal Information; and
• the Privacy Act and the Australian Privacy Principles established under the Privacy Act.

PPSA means Personal Property Securities Act 2009 (Cth).

Privacy Policy means Harti's privacy policy as amended by Harti from time to time in its sole discretion, which is available on the Website.

Harti means Harti Pty Ltd (ACN 673 454 870) (ABN 88 673 454 870)

Services means the services to be provided by Harti to the Customer under these terms and conditions via the Website or App or to be accessed via Devices using the Software, together with any Documentation as specified in an accepted quotation or proposal of Harti or in an Order confirmed in an Order Acknowledgement.

Software means any program or data file relating to the Services supplied by Harti to the Customer or downloaded or installed by the Customer on a Device but excludes any Third Party Software.

Support Services means, if specified in an accepted quotation or proposal of Harti or in an Order confirmed in an Order Acknowledgement, training, consultation by means of email and telephone during Business Hours, updates of Software as they become available and support for Authorised Users via email or telephone during Business Hours.

System Administrator means a person who has been provided a role to access administration functions within the Services or Software.

Third Party Software means freeware or open source software or software that is owned by third parties and licensed to Harti.

Update means new versions of, and updates to, the Services, whether for the purpose of fixing an error, bug or other issue or enhancing the functionality of the Services but excludes any software, services or updates marketed, licensed or sold by Harti as a new version or new release.

User Subscriptions means the user subscriptions purchased by the Customer or an Authorised User which entitle Authorised Users to access and use the Services in accordance with these terms and conditions.

User Subscription Fee means the amount set out in an accepted quotation or proposal or App of Harti, or in an Order confirmed in an Order Acknowledgement (or as otherwise set out on the Website).

Virus means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re- arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Website means www.harti.care.

2. Orders And Terms And Conditions

2.1 An Order or an offer to purchase can be made by the Customer in writing, verbally or via the Website or by the Customer accepting a quotation or proposal issued by Harti. An Order is accepted when the Customers receives from Harti an Order Acknowledgement, access is provided to the Services, or Software is downloaded, whichever first occurs.

2.2 These terms and conditions apply to every Order, unless otherwise agreed in writing by Harti. Acceptance of Services by the Customer or Authorised User is conclusive evidence that these terms and conditions apply and are binding on the Customer.

2.3 These terms and conditions shall prevail over all inconsistencies in an Order (whether received before or after these terms and conditions are signed, provided to or are notified to the Customer or Authorised User), unless Harti agrees otherwise in writing. Subject to clause 2.4, these terms and conditions are the only conditions to which Harti will be bound and the Customer or Authorised User agrees that these terms and conditions will prevail over the Customer’s terms and conditions of purchase or any other terms and conditions of purchase (if any and whether received before or after these terms and conditions are signed, provided to or are notified to the Customer or Authorised User).

2.4 These terms and conditions are subject to any further written, executed agreement entered into between Harti and the Customer or Authorised User (Further Agreement). In the event of any inconsistency between these terms and conditions and a Further Agreement, the provisions of the Further Agreement will prevail to the extent of the inconsistency.

3. Right To Use Services

3.1 These terms and conditions are effective from the Commencement Date and shall remain in force until terminated in accordance with clause 15.

3.2 If the relevant invoice or quotation issued by Harti and accepted by the Customer or the Order (as confirmed in an Order Acknowledgement) specifies that the Services are to be provided for a fixed period and the Customer allows Harti to continue performing the Services after the expiration of that period, then these terms and conditions will be deemed to continue on a holding over basis (with the same Fees and other terms and conditions to apply) with either party then having the right to terminate these terms and conditions on one month’s written notice.

3.3 Harti hereby grants to the Customer a non-exclusive, non-transferable right to permit the Customer and Authorised Users to use the Services solely for the Customer’s internal business operations.

3.4 These terms and conditions shall not prevent Harti from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these terms and conditions.

4. The Services

4.2 Harti will use its best endeavours to maintain the reliability and efficiency of the Services subject to:

4.2.1 scheduled downtime for Maintenance Services or other interruptions to service specified in clause 8.1; and

4.2.2 unscheduled interruptions to the availability of the Services due to factors beyond the control of Harti including any actions of the Customer, Authorised User or third parties (including telecommunications providers).

4.3 The Customer will communicate any difficulties encountered with the Services to Harti as soon as is reasonably practicable following detection.

4.4 Harti may, in its sole discretion, make Updates available through the Services.

4.5 The Customer or Authorised User acknowledges that certain elements of the Services or Software are provided by third parties or comprise Third Party Software and the Customer:

4.5.1 acknowledges and agrees that the licence agreement for any Third Party Software shall be between the Customer or Authorised User and the relevant third party directly and the Customer or Authorised User shall comply with such terms in relation to the use of the Third Party Software; and

4.5.2 consents to Harti subcontracting certain elements of the Services to subcontractors or subprocessors

5. Customer's Obligations

5.1 General

The Customer shall:

5.1.1 Provide Harti with:

1. all necessary co-operation in relation to these terms and conditions; and
2. all necessary access to such information as may be required by Harti, in order to enable Harti to render the Services, including but not limited to the provision of the Customer Data, security access information and configuration services.

5.1.2 Comply with all applicable laws and regulations with respect to its activities under these terms and conditions.

5.2 Hardware, Network and Systems

5.2.1 The Customer shall ensure that its hardware, network and systems comply with the relevant specifications provided by Harti from time to time.

5.2.2 The Customer shall be solely responsible for:

1. procuring and maintaining its network connections and telecommunications links;
2. the support and maintenance of any computer hardware and non-Harti software operated by the Customer; and
3. all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the Internet.

5.3 Use of the Services

5.3.1 The Customer shall be responsible for ensuring that its Authorised Users comply with these terms and conditions.

5.3.2 The Customer undertakes that

1. each Authorised User shall keep their sign-in credentials confidential; and
2. it shall permit Harti to audit the Services to ensure the Customer’s compliance with these terms and conditions.

5.3.3 Where the Customer is paying an Instalment Fee, the Customer agrees that the maximum number of Active Users that it authorises to access and use the Services shall not exceed the Maximum Number of Users.

5.3.4 Where the Customer is paying a User Subscription Fee, the Customer undertakes that:

1. it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
2. if any of the audits referred to in clause 5.3.2(b) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Harti’s other rights, the Customer shall promptly disable such passwords and Harti shall not issue any new passwords to any such individual; and
3. if any of the audits referred to in clause 5.3.2(b) reveal that the Customer has underpaid Subscription Fees to Harti, the Customer shall pay to Harti an amount equal to such underpayment within 10 Business Days of the date of the relevant audit.

5.3.5 The Customer shall not allow the number of System Administrators to exceed 10 users.

5.3.6 The Customer shall not (and shall ensure that its Authorised Users do not) access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2. facilitates illegal activity;
3. depicts sexually explicit images;
4. promotes unlawful violence;
5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or
6. causes damage or injury to any person or property.

5.3.7 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services or Software and, in the event of any such unauthorised access or use, promptly notify Harti.

5.3.8 Without limiting the above, the Customer agrees that it will not:

1. attempt to gain unauthorised access to any portion or feature of the Services, Software or Website, or any other systems or networks connected to the Services, Software or Website or to any Harti server, by hacking, password “mining” or any other illegitimate means;
2. probe, scan or test the vulnerability of the Services, Software or Website or any network connected to the Services, Software or Website, nor breach the security or authentication measures on the Services, Software or Website or any network connected to the Services, Software or Website;
3. reverse look-up, trace or seek to trace any information on any other user of or visitor to the Services, Software or Website, or any other customer of Harti, including any Harti account not owned by the Customer, to its source, or exploit the Services, Software or Website or any service or information made available or offered by or through the Services, Software or Website, in any way where the purpose is to reveal any information, including but not limited to personal identification or information, other than the Customer Data, as provided for by the Services, Software or Website;
4. take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services, Software or Website or Harti’s systems or networks, or any systems or networks connected to the Services, Software or Website or to Harti; or
5. use any device, software or routine to interfere or attempt to interfere with the proper working of the Services, Software or Website or any transaction being conducted on the Services, Software or Website, or with any other person’s use of the Services, Software or Website.

5.4 Intellectual Property Rights

5.4.1 The Customer shall not:

1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
   1. and except to the extent expressly permitted under these terms and conditions, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services or the Software in any form or media or by any means; or
   2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human- perceivable form all or any part of the Services or Software; or
2. access all or any part of the Services or Software in order to build a product or service which competes with the Services; or
3. unless otherwise agreed by Harti in writing, use the Services or Software to provide services to third parties; or
4. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services or Software available to any third party except the Authorised Users, or
5. attempt to obtain, or assist third parties in obtaining, access to the Services or Software, other than as provided under these terms and conditions.

5.4.2 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services or Software and, in the event of any such unauthorised access or use, promptly notify Harti.

5.5 Privacy & Surveillance

The Customer acknowledges and agrees that:

5.5.1 In providing the Services, Harti will be required to collect Personal Information from Authorised Users.

5.5.2 In collecting such Personal Information, Harti shall comply with the Privacy Laws and shall deal with such Personal Information in the manner set out in the Privacy Policy.

5.5.3 The Customer shall ensure that it obtains the consent of Authorised Users to Harti collecting the Personal Information of Authorised Users and to Harti storing and sharing that Personal Information with the Customer as necessary for Harti to provide the Services.

5.5.4 In collecting such Personal Information, Harti shall be operating only as the processor of personal data, rather than as the controller of the personal data of Authorised Users.

5.5.5 If the Services include GPS tracking services (through location services on the Device of Authorised Users or by other electronic means) (GPS Tracking):

1. The Customer acknowledges that GPS Tracking shall be subject to the consent of the Authorised User and that GPS Tracking will only be effective whilst location services are enabled on the relevant Device (and that this setting may be varied by the Authorised User at any time); and
2. the Customer shall ensure that it obtains the consent of the Authorised User prior to GPS Tracking being applied to that Authorised User and that, in particular, if the Authorised User is an employee of the Customer, their consent is obtained before they commence employment or, if they are an existing employee, 14 days prior to GPS Tracking commencing (or such other period as is required by surveillance legislation in the relevant jurisdiction).

7. Customer Data

7.1 The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.

7.2 In the event of any loss or damage to Customer Data:

7.2.1 Harti shall notify the Customer where such loss or damage to the Customer comprises an 'eligible data breach' as defined by the Privacy Act; and

7.2.2 To the extent permitted by law, the Customer’s sole and exclusive remedy shall be for Harti to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Harti. Harti shall not be responsible for any loss, destruction, alteration, or disclosure of Customer Data caused by any third party.

7.2.3 Harti shall, in providing the Services, comply with the Privacy Policy.

8. Suspension Of The Services

8.1 Harti may suspend access to the Services:

8.1.1 to carry out the Maintenance Services;

8.1.2 to carry out modifications or updates to the Services, including the uploading of Updates;

8.1.3 to preserve data and integrity; or

8.1.4 in the event of a security breach.

8.2 Suspension of access to the Services will continue until the Maintenance Services, modifications or Updates are carried out, the problem or breach is rectified, or until otherwise agreed in writing between the parties.

8.3 Harti also reserves the right to terminate or suspend access to the Services to the Customer indefinitely and without refund or compensation in the event that the Customer uses the Services, or appears to Harti to be intending to use the Services, in a manner reasonably deemed inappropriate by Harti or which breaches these terms and conditions.

9. Support Services And Additional Services

9.1 The Customer may, from time to time, request in writing that Harti provide the Customer with services additional to those set out in these terms and conditions (Additional Services).

9.2 Any provision of Additional Services by Harti to the Customer will be at Harti’s sole discretion. The parties will negotiate in good faith the fees payable by the Customer to Harti in respect of the Additional Services.

10. Fees

10.1 The Fees shall be the amounts set out in an accepted quotation or proposal of Harti or in an Order confirmed in an Order Acknowledgement (or as otherwise set out on the Website), unless otherwise agreed in writing.

10.2 The Customer shall pay the Fees in the manner set out in an accepted quotation or proposal of Harti or in an Order confirmed in an Order Acknowledgement (or as otherwise set out on the Website).

10.3 If in an accepted quotation or proposal of Harti or an Order confirmed in an Order Acknowledgement specifies that payment of any Fees is to be made to Harti directly by the Customer, payment shall be made by EFT by the Customer within 14 days of invoice by Harti.

10.4 If in an accepted quotation or proposal of Harti or an Order confirmed in an Order Acknowledgement specifies that payment of any Fees is to be made on the Customer’s behalf by its contractors or Authorised Users, payment must be made by the Customer’s contractors or Authorised Users via the Payment Gateway before any User Subscriptions are issued by Harti.

10.5 All amounts payable under these terms and conditions are exclusive of GST unless stated otherwise. In respect of any taxable supply, the Customer must pay to the Supplier an additional amount equal to the prevailing GST rate, payable at the same time and in the same manner as the Fees.

10.6 All Fees must be paid in full, without set off or counterclaim.

11. Intellectual Property

11.1 The Customer acknowledges and agrees that Harti and/or its licensors own all Intellectual Property Rights in the Customer Data, Services, Documentation, and the Software.

11.3 Except as expressly stated herein, these terms and conditions do not grant the Customer any Intellectual Property Rights, or any other rights or licences in respect of the Customer Data, Services, Documentation, or the Software.

11.4 Subject to payment of the Licence Fee, Harti grants to the Customer a non-exclusive, world-wide, non-transferable licence to use Software and Documentation solely in connection with the Services, subject to and in accordance with the terms and conditions set out in these terms and conditions.

12. Confidentiality

12.1 A party must not, without the prior written consent of the other, use or disclose the other party’s Confidential Information unless expressly permitted by these terms and conditions or required to do so by law or any regulatory authority.

12.2 A party may:

12.2.1 use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under these terms and conditions; and

12.2.2 disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for purposes related to these terms and conditions, but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.

12.3 Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party’s Confidential Information whilst it is in the receiving party’s possession or control.

12.4 Each party must return, or at the other party’s option destroy, all Confidential Information of the disclosing party in the receiving party’s possession or control, on the earlier of Harti’s request or on termination of these terms and conditions for any reason.

12.5 The Customer acknowledges that details of the Services and the results of any performance tests of the Services or Software constitute Harti’s Confidential Information.

12.6 Harti acknowledges that the Customer Data is the Confidential Information of the Customer.

12.7 This clause 12 shall survive termination of these terms and conditions, however arising.

13. Warranties

13.1 Harti warrants that:

13.1.1 it has all the rights in relation to the Services and the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, these terms and conditions;

13.1.2 the Services and the Software will not infringe the Intellectual Property Rights of any third party; and

13.1.3 it will exercise reasonable skill, care and attention in providing the Services to the Customer in accordance with these terms and conditions.

13.2 Notwithstanding the foregoing, Harti:

13.2.1 takes no responsibility for any delay, malfunction, non-performance or other degradation of the Services caused by or resulting from:

1. any alteration, modifications or amendments to the Services requested by the Customer; or
2. any middleware or other software which links or interfaces with the Services, which has not been prepared by Harti or sold by Harti as part of the Services;

13.2.2 does not warrant that the Customer’s use of the Services will be uninterrupted or error- free; and

13.2.3 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

13.3 The Customer acknowledges that the speed of response from the Services is dependent on the Customer’s internal connection and performance of the Services may be affected by such external factors as the Customer’s speed of connection, infrastructure bandwidth and the number of users on the connection.

13.4 Where the Services include pre-written materials provided by Harti or other third parties (Materials), Harti and its content providers will use reasonable endeavours to ensure that the Materials are accurate. However, the Customer acknowledges and agrees that:

13.4.1 the information provided in such Materials is intended only to provide a summary and general overview is not intended to be a substitute for legal advice.

13.4.2 It will seek legal or other professional advice before acting or relying on any of the Materials.

13.4.3 If the Materials are edited by the Customer or its Authorised Users, neither Harti nor its content providers will be responsible for any Liability arising from such amendments.

14. Liability & Indemnity

14.1 To the full extent permitted by law, Harti excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in these terms and conditions.

14.2 These terms and conditions are to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, guarantees, conditions or obligations (including the Australian Consumer Law). If such legislation applies, to the extent possible, Harti limits its Liability in respect of any claim to, at Harti’s option, in the case of services:

1. the supply of the services again; or
2. the payment of the cost of having the services supplied again.

14.3 To the full extent permitted by law, Harti excludes all Liability in respect of loss of data, interruption of business or any consequential or incidental damages, even to the extent that such Liability is caused by Harti’s negligence.

14.4 Each party agrees to indemnify the other from and against all Liability suffered by the other party arising either directly or indirectly from their negligent act or omission or breach of these terms and conditions.

14.5 Either party’s Liability for any claim relating to these terms and conditions will be reduced to the extent to which the other party contributed to the damage arising from the Liability.

14.6 To the extent permitted by law, Harti’s total aggregate Liability for all claims relating to these terms and conditions (including under clause 14.4) is limited to the Fees payable under these terms and conditions.

15. Termination

15.1 Harti may terminate these terms and conditions by convenience by the provision of one month’s written notice.

15.2 Either party may terminate these terms and conditions by written notice to the other if any of the following events has occurred in respect of the other party:

15.2.1 a material breach of these terms and conditions which is not remediable or if capable of remedy, where the other party fails to remedy within 14 days of written notice; or

15.2.2 suffers an Insolvency Event.

15.3 If these terms and conditions are terminated or expire for any reason, then, in addition and without prejudice to any other rights or remedies available:

15.3.1 the parties are immediately released from their obligations under these terms and conditions except those obligations listed in clauses 11, 12, 13 and 14 and any other obligations that, by their nature, survive termination;

15.3.2 each party retains the claims it has against the other;

15.3.3 the Customer must immediately pay all outstanding Fees owing under these terms and conditions;

15.3.4 no refund of Fees paid will be given by Harti (unless termination occurs under clause 15.1, in which case any Fees which relate to a specified duration shall be refunded on a pro- rata basis); and

15.3.5 the Customer’s right to use Services immediately ceases and the licences granted under these terms and conditions terminate.

16. General Provisions

16.1 Notices given by Harti will be deemed to be received:

16.1.1 if given by email, on being sent, provided the notice is sent to the email address of an officer or employee of the Customer responsible for placing or administering orders for Services and no “out of office” or other automated reply is received indicating that the message has not been or will not be received or read by the intended recipient;

16.1.2 if given by post, on the third Business Day after posting.

16.2 The Customer agrees to regularly check the Website for any notices of changes to these terms and conditions.

16.3 Harti may appoint sub-contractors to perform Services under these terms and conditions.

16.4 Harti shall have the right to advertise the Services and the fact that the Services have been provided to the Customer for the purpose of promoting Harti’s services to the public at large and for entering such work in competitions or for publication in award annuals, magazines, or publications.

16.5 The Customer shall not, without the prior written consent of Harti, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these terms and conditions. Harti may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these terms and conditions.

16.6 Nothing contained in these terms and conditions creates any relationship of partnership or agency between the parties.

16.7 If a provision of these terms and conditions is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.

16.8 Each party must at its own expense do everything reasonably necessary to give full effect to these terms and conditions and the events contemplated by it.

16.9 Subject to clause 2, these terms and conditions (and any documents executed in connection with it) are the entire agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in these terms and conditions, no party has relied on any representation made by or on behalf of the other.

16.10 These terms and conditions may be amended only by a document signed by all parties.

16.11 A provision of or a right under these terms and conditions may not be waived or varied except in writing signed by the person to be bound.

16.12 A party will not be responsible for a failure to comply with its obligations under these terms and conditions to the extent that failure is caused by a Force Majeure Event, provided that the party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation.

16.13 These terms and conditions are governed by the laws of South Australia and each party submits to the jurisdiction of the courts of South Australia.

16.14 If at any time the Customer grants in favour of Harti a security interest over any collateral (all within the meaning of the PPSA):

1. at any time, without prior notice to the Customer but at the Customer’s cost, Harti may register in relation to such security interest/s one or more financing statements / financing change statements on the register maintained under the PPSA;
2. to any extent Harti at any time requests, within two Business Days the Customer must do all things necessary to assist such registration/s and / or ensure the security interest/s priority over any other security interest (present or future) over the same collateral granted by the Customer to a third party; and
3. the Customer waives its right to receive a copy of any financing statement or financing change statement and irrevocably contracts out of those provisions of the PPSA that the PPSA allows to be contracted out of by the Customer.