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      Refuel Creative Terms and Conditions

      The following conditions, provisions and terms (“Terms and Conditions”) govern the relationship between Refuel Creative and the Customer in connection with the supply of Services under the Project Terms.

      1 DEFINITIONS AND INTERPRETATION

      a.“Additional Items” means any services performed of a type and nature not specifically referred to in the Project Terms;

      b.“Agreement” means the documents comprising the Project Terms and Terms and Conditions;

      c.“Business Day” means a day on which the banks are open for general banking business in South Australia except Saturday, Sundays and public or statutory holidays;

      d.“Contract Sum” means the amount specified in the Project Terms;

      e.“Customer” means the person identified in the Project Terms;

      f.“Minimum Engagement Term” is the minimum period in which Refuel will accept an their engagement by the Customer to provide the Services;

      g.“Project Terms” means the document having that title and electronically signed by the Customer.

      h.“person” includes companies;

      i.“Refuel Creative” means Refuel Creative Pty Ltd (ACN 618 539 209);

      j.“Restart Fee” means the additional cost that a Customer will incur should they instruct Refuel Creative that they wish to pause or delay the provision of Services;

      k.“Services” means the activities, work and services described in the Project Terms;

      l.Headings are for convenience only and do not form part of these Terms and Conditions; and

      m.Reference to the singular includes the plural and the plural includes the singular.


      2 ENGAGEMENT

      a. The Customer is deemed to have confirmed the accuracy of the Project Terms, to have read and accepted the Terms and Conditions by electronically signing the Project Terms.
      ​

      3 VARIATIONS IN PRICES

      a. Subject to the below provisions, all prices in the Project Terms shall remain current from the date on which the Customer signs the Project Terms until 1 July of each year. See clause 3.4.

      b. Refuel Creative shall be entitled to vary the Contract Sum or any quotation previously provided to the Customer if:-

          1. the Customer provides incomplete or inaccurate information to Refuel Creative preventing Refuel Creative from providing an accurate quote;
          2. Refuel Creative experiences delays in providing the Services by virtue of any action or inaction on the part of the Customer;
          3. any works previously carried out by other persons which interferes with or prevents Refuel Creative from providing the Services;
          4. any delay or cost incurred by Refuel Creative as a result of the application or use of any third-party resource (including but not limited to code and systems) that could have not been reasonably foreseen by Refuel Creative;
          5. at the Customer’s request, Refuel Creative agrees to provide Additional Items at any time after the commencement of this Agreement;
          6. Refuel Creative experiences price increases from third parties in respect of providing the Services to the Customer after the date of this Agreement;
          7. the Customer is in breach of its obligations as set out in this Agreement causing Refuel Creative to incur loss for any reason directly or indirectly; and
          8. any cause beyond Refuel Creative’s control causing the necessary variation.

      c.If any supply by Refuel Creative is subject to Goods and Services Tax (“GST”), the Customer must, unless the price in the Project Terms expressly states that GST is included, pay the relevant GST amount in addition to the amount appearing in the Project Terms.

      d.Unless otherwise stated (or agreed by the parties in writing) the Contract Sum shall increase by 10% per annum on 1 July of each year;
      ​

      4 ADDITIONAL ITEMS

      a. If the Customer requests that Refuel Creative supply or carry out Additional Items and Refuel Creative agrees to such a request, the Additional Items will be deemed to form part of the Services (as the case may be) and the Customer must pay:
          1. if Refuel Creative has given a written quotation prior to performing or providing the Additional Items, the amount quoted; or
          2. in the absence of a written quotation, an amount calculated using Refuel Creative’s standard supply and labour rates.

      b.The Customer acknowledges and agrees that any and all Services that are not specifically referred to in the Project Terms shall constitute Additional Items.

      c.Should the Customer request Refuel Creative pause or delay the provision of the Services, Refuel Creative reserves the right to charge the Customer the Restart Fee for all additional costs and expenses incurred by Refuel as a result of the delay, calculated using Refuel Creative’s standard supply and labour rates. The minimum Restart Fee will be $500.00.

      5 TERMS OF PAYMENT

      a. The Customer must pay Refuel Creative, within fourteen (14) days of the date of Refuel Creative issuing an invoice for such payment to the Customer, the total amount set out in the invoice/s issued by Refuel Creative to the Customer whether for the whole of part of the Contract Sum and/or the value of any Additional Items.

      b. If the Customer fails to make such payment within the time frame required by Refuel Creative, Refuel Creative shall be at liberty to withhold the provision of Services until such time as the Customer makes full payment and such action shall not constitute a breach of Refuel Creative’s obligations under this Agreement.

      c.The failure of the Customer to provide instructions to Refuel Creative in a timely manner does not provide a basis for the delay in invoicing by Refuel Creative and/or payment by the Customer;

      d.Refuel Creative may, its absolute discretion, seek and recover from the Customer and the Customer agrees to pay:

          1. interest on all overdue invoices at the rate of 2% above the current benchmark interest rate published by the Reserve Bank from the date of an unpaid invoice;
          2. any costs and expenses incurred in collecting or attempting to collect any amounts that are not paid by the Customer when due including debt collector’s expenses, and solicitor’s fees on a solicitor/client basis.
            ​

      6 LIMITATION OF LIABILITY

      a.Refuel reserves the first right to investigate and if necessary repair (or alternately engage a third party to investigate and if necessary repair) any Services provided under this Agreement and shall not be liable to the Customer in any way should they be precluded from doing so;
      b.All liability and obligations imposed under statute are expressly excluded but only to the extent that this exclusion does not contravene the statute or cause any part of the Agreement to be void.
      c.Refuel Creative’s liability is limited to:
          1. supplying the Services again; or
          2. the cost of having the Services supplied again,

      whichever Refuel Creative elects to do in its absolute discretion;

      a.To the maximum extent permitted by law:
          1. Refuel Creative will not be liable to the Customer or any other person or third party in respect of any consequential or other loss or damage (including loss of profit, loss of income or loss to reputation) arising directly or indirectly from the provision of Services under this Agreement;
          2. Refuel Creative’s liability arising out of a connection with this Agreement whether under the law of contract, in tort, in equity under statute or otherwise shall be limited in aggregate to an amount equal to the Contract Sum;
          3. Refuel Creative shall not be liable to the Customer for any statements, representations, guarantees, conditions or warranties not expressly contained in the Project Terms.
            ​

      7 SUSPENSION AND/OR TERMINATION BY REFUEL CREATIVE

      a.Refuel Creative shall be entitled to suspend and/or terminate the supply of Services forthwith by written notice to the Customer upon the happening of any one of the following events:
          1. where full payment of any invoice issued by Refuel Creative to the Customer whether for the whole or part of the Contract Sum and/or the value of any Additional Items has not been received by Refuel Creative;
          2. where the Customer, being an individual, commits an act of bankruptcy or, being a corporation goes into liquidation or has a receiver or administrator appointed to control its affairs, is deemed unable to pay its debt or has a petition presented for its winding up or for an administrative order; or
          3. where the Customer is in material breach of any of the Terms and Conditions and:-
            1. Refuel Creative has given the Customer a written notice demanding the breach be remedied within fourteen (14) days and the Customer fails to comply with such notice; or
            2. such breach cannot be remedied; or
            3. such breach evinces an intention on the part of the Customer that it does not wish to be bound by the terms of this Agreement.
        2. Any suspension and/or termination shall be without prejudice to and shall not affect any rights of Refuel Creative against the Customer that have accrued up to the time of suspension or termination (as the case may be).
          ​

      8 TERMINATION BY THE CUSTOMER

      a.Unless explicitly stated in the Project Terms, the Minimum Engagement Term under the Agreement is three (3) months.
      b.The Agreement may be cancelled by the Customer by providing Refuel Creative thirty (30) days notice in writing, or until the end of the Minimum Engagement Term, whichever occurs last.
      c.Cancellation by the Customer will not result in the adjustment of any previously issued invoices (and/or subsequent invoices issued to cover the Minimum Engagement Term notwithstanding notice has been provided by the Customer) are required to be paid by the Customer to Refuel Creative in full.
      ​

      9 FORCE MAJEURE

      a. Refuel Creative will have no liability to the Customer in relation to any loss, damage or expense caused by Refuel Creative’s failure to complete the Services as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, vandalism, crime, strike, lockout, breakdown, war, the inability of Refuel Creative’s normal suppliers to supply the necessary material or any other matter beyond Refuel Creative’s control.
      ​

      10 DISPUTE RESOLUTION

      a.Both parties agree that:
          1. the Customer and Refuel Creative will initially use all reasonable endeavours to resolve any dispute arising under this Agreement within 10 Business Days of a party being advised by written notice of such a dispute;
          2. in the event that the parties are unable to resolve the dispute within the timeframe specified above, the parties may either agree to refer the matter to mediation or some other form of alternative dispute resolution or commence legal proceedings.
          3. To the extent possible, both parties shall continue to comply with their respective obligations under this Agreement whilst the dispute is being addressed by the procedure as set out in this clause.
            ​

      11 APPLICABLE LAW

      a.The Agreement is governed by the laws of South Australia and the parties submit to the exclusive jurisdiction of the Courts of South Australia.
      ​

      12 SEVERANCE

      a.If any part of this Agreement is found to be void, voidable or not enforceable, that part shall be struck out without affecting or eroding the enforceability or validity of the remaining parts and such severance shall not detract from the obligations each party has under this Agreement.
      ​

      13 ASSIGNMENT

      a.The Customer hereby authorises Refuel Creative to assign its obligations, rights and interest in this Agreement to any third party
      b.The Customer is not entitled to transfer its obligations, rights and interest under this Agreement without first seeking the written consent of Refuel Creative.
      c.Any consent that may be given by Refuel Creative may be granted or withheld in Refuel Creative’s absolute discretion and shall not at any time constitute a waiver of Refuel Creative’s rights and interests under this Agreement.
      ​

      14 ENTIRE AGREEMENT

      a. This Agreement contains the entire agreement between Refuel Creative and the Customer. The parties agree that any negotiations that lead to the formation of this Agreement have been accurately incorporated in this Agreement.

      b. In entering into this Agreement, the parties hereby acknowledge that they have not made any warranties or representations to each other except as incorporated in this Agreement.


      15 GUARANTEE

      a. The person signing this Agreement on behalf of the Customer hereby guarantees the payment of all monies that become due and payable under this Agreement. This guarantee will continue following the termination of this Agreement until all monies owing to Refuel Creative are paid in full.
      ​

      16 INSTRUCTIONS AND COMMUNICATIONS

      a. Refuel Creative shall receive instructions from the person signing this Agreement only. If the Customer authorises any other employee or agent to give Refuel Creative instructions in lieu of or in addition to the person signing this Agreement, the Customer must inform Refuel Creative of that person’s Project Terms in writing.

      b.Refuel Creative shall not be liable in any way for any losses incurred by the Customer in accepting instructions from the persons contemplated by this clause.

      c.Refuel Creative may elect to communicate by electronic mail or such other form as is convenient and does not warrant that any such communication will be free from defect, virus or shall be otherwise secure. The Customer hereby acknowledges and agrees to accept such communications and releases Refuel Creative from all liability in respect of any losses that may be incurred by the Customer by virtue of such communications.
      ​

      17 NOTICES

      a. A notice from one party to another shall be deemed to have been served upon the receiving party if:-
          1. the notice is delivered personally to the other party;
          2. the notice is delivered by email to the email address provided in the Project Terms; or
          3. the notice is posted to the other party to the address provided in the Project Terms, whereby delivery will be deemed to have occurred on the third business day following the posting of the notice.