Terms of Use & Privacy Policy

Terms & Conditions of Trade

Updated: December 2025

1. Definitions

1. “Authorised Account” means a sub-account, under the auspices of the Client’s overall account with T&H Digital, which is operable by an employee, agent or contractor of the Client.
2. “Authorised User” means:
  1. an employee, agent or contractor of the Client; or
  2. any other third party authorised by the Client to use an Authorised Account.
3. “Business Day” means any day which is not a Saturday, Sunday, public holiday, special holiday, or a bank holiday in the state in which this Contract is applied. If the giving of any notice, the making of any payment, or the doing of any act required or permitted under this Contract, the timing of which falls on a day which is not a Business Day, then the timing for such actions shall be extended and will be allowed to take place on the next Business Day, but no later.
4. “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting T&H Digital to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:
  1. if there is more than one Client, is a reference to each Client jointly and severally; and
  2. if the Client is a partnership, it shall bind each partner jointly and severally; and
  3. if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
  4. includes the Client’s executors, administrators, successors and permitted assigns.
5. “Client Data” means all the unprocessed data supplied and inputted by the Client into the secured access area for the Services from time to time in conjunction with the Services.
6. “Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, Contracts, client information (including but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
7. “Contract” means the terms and conditions contained herein, together with any letter of engagement, quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.
8. “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using T&H Digital’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.
9. “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
10. “Intellectual Property” means all present and future rights conferred by statute, common law or equity in or in relation to business names, circuit layout, computer Software, Confidential Information, copyright, designs, domain names, formulas, inventions, knowhow, patents, plant varieties, recipes, trademarks, and other results of intellectual activity in the industrial, commercial, scientific, literary and artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such right.
11. “Price” or “Subscription Fee” means the Price payable (plus any GST where applicable) for the Services as agreed between T&H Digital and the Client in accordance with clause 8 of this Contract.
12. “Prohibited Content” means any content or links that:
  1. are, or could reasonably be considered to be, in breach of the Broadcasting Services Act 1992; the Fair Trading Acts of the applicable States and Territories of Australia and the Competition and Consumer Act 2010 (CCA); or any other applicable law or applicable industry code; or
  2. contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
  3. are, or could reasonably be considered to be, in breach of any person’s intellectual property rights (including, but not limited to, the distribution of software or video, audio or digital files, or any other material in which the Client does not own the copyright). T&H Digital will respond to all reports of infringement that are formatted in accordance with Australian copyright laws and any other applicable copyright laws. T&H Digital will act in accordance with the law when handling infringement reports; or
  4. are, or could reasonably be considered to be, pirated software, bulk e-mail related products, pornography or nudity or adult content, hacking or cracking related websites, Warez, hosting of large scale video, audio or digital download websites, illegal material or material that is against public policy, websites containing or linking to material that may be considered detrimental to the public’s health, safety or welfare (such as, but not limited to, anarchists, Cookbook, bomb making, weapon information, etc.), or anything else that may be considered detrimental or illegal.
13. “Services” means all Services which includes any content, files, information, printed or virtual material, data, hardware, Software or applications (whether supplied from a third party Software development company or where custom developed or programmed for the Client), brands, designs, images, graphics, pictures, trademarks, manuals, and other associated documentation and/or goods, accessories or parts) or Services (which includes any subscription Services, advice or recommendations, consultancy, website development, web hosting, monitoring, data back-up or storage, strategising and analytical services, technical service, support and training, etc.) supplied by T&H Digital to the Client, at the Client’s request, from time to time.
14. “Software” shall mean the programs and other operating information (including documentation) used by a computer.
15. “Support” means to provide direct support to the Client for technical issues in relation to the Services. Support excludes the following services:
  1. any time spent to resolve any issues with the Client’s computer system created by any operator error on the part of the Client or any action of any third parties whether authorised or unauthorised by the Client;
  2. resolving any issues created by new third party hardware or software introduced to the Client’s computer system without T&H Digital’s knowledge;
  3. resolving any issues which are solely caused by the actions of third parties and originate outside of the Client’s computer system e.g. problems that relate to the supply of services by the Client’s internet service provider; or
  4. bug fixes.
16. “T&H Digital” means T&H Digital Pty Limited T/A T&H Digital, its successors and assigns or any person acting on behalf of and with the authority of T&H Digital Pty Limited T/A T&H Digital.
17. “Website” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.
2. Interpretation
1. In this Contract, unless it is stated to the contrary or the context requires otherwise:
  1. words in the singular shall include the plural (and vice versa), words importing one gender shall include every gender, a reference to a person shall include any other legal entity of whatsoever kind (and vice versa) and where a word or a phrase is given a defined meaning in this Contract, any other part of speech or other grammatical form of that word or phrase has a corresponding meaning;
  2. a reference to a statue, ordinance, code or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments or replacements of any of them (whether of the same or any other legislative authority having jurisdiction);
  3. the words ‘include’ and ‘including’, and any variants of those words, will be treated as if followed by the words ‘without limitation’; and
  4. a reference to dollars ($), is a reference to Australian currency;
  5. this Contract is not to be interpreted against T&H Digital merely because they prepared this Contract;
  6. where a URL is mentioned, the non-operation of the “URL” will not render the rights and obligations associated with it invalid;
  7. any reference digital resource may be replaced with another digital resource that is a “copy” of the original resource;
  8. the following order of precedence (in descending order) will be applied to resolve any conflict, ambiguity or discrepancy in this Contract:
    1. Terms and Conditions of Trade; and
    2. any schedules.
  9. any reference (other than in the calculation of consideration, or of any indemnity, reimbursement or similar amount) to cost, expense or other similar amount is a reference to that cost exclusive of GST.
3. Acceptance
1. The parties acknowledge and agree that:

1. 1. they have read and understood the terms and conditions contained in this Contract; and
  2. the parties are taken to have exclusively accepted and are immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Services provided by T&H Digital.
2. In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.
3. Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.
4. The Client acknowledges and accepts that:
  1. the supply of Services on credit shall not take effect until the Client has completed a credit application with T&H Digital and it has been approved with a credit limit established for the account. In the event that the supply of Services requested exceeds the Client’s credit limit and/or the account exceeds the payment terms, T&H Digital reserves the right to refuse delivery; and
  2. in the event that the Client fails to comply with any of their responsibilities under this Contract, then any and all fees will become immediately due and payable.
5. Once accepted by the Client, T&H Digital’s quotation shall be deemed to interpret correctly the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, T&H Digital shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
6. The Services supplied under this Contract do not include, unless otherwise specified in writing by T&H Digital:
  1. Support of other software, accessories, attachments, machines, hardware, peripherals, systems or other devices not supplied by T&H Digital;
  2. rectification of lost or corrupted data arising from any reason other than the negligence, fault or omission of T&H Digital;
  3. Support which is rendered more difficult because of any changes, alternation, addition, modifications or variations to the Services, the operating system or the operating environment;
  4. diagnosis or rectification of problems not associated with the Software;
  5. loss or damage caused directly or indirectly by operator error or omission and over which T&H Digital has no control; and
  6. any direct costs other than T&H Digital’s personnel’s time and ordinary overheads.
7. T&H Digital will ask pertinent questions to ascertain the Client’s requirements in the preparation, institution and management of the plan for the Client. The Client shall provide accurate information without embellishment in order to ensure an appropriate level of service and protection. The Client acknowledges and agrees that in the event that any of this information provided by the Client is inaccurate, T&H Digital accepts no responsibility for any loss, damages, or costs however resulting from the inaccurate information.
8. T&H Digital reserves the right to terminate the Client’s order if it learns that the Client has provided false or misleading information, interfered with other users or the administration of T&H Digital’s Services, or violated these terms and conditions.
9. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Errors and Omissions

1. The Client acknowledges and accepts that T&H Digital shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):
  1. resulting from an inadvertent mistake made by T&H Digital in the formation and/or administration of this Contract; and/or
  2. contained in/omitted from any literature (hard copy and/or electronic) supplied by T&H Digital in respect of the Services.
2. In circumstances where the Client is required to place an order for the Services, in writing, or otherwise as permitted by these terms and conditions, the Client is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for the Services ("Client Error"). The Client must pay for all Services it orders from T&H Digital notwithstanding that such Services suffer from a Client Error and notwithstanding that the Client has not taken or refuses to take delivery of such Services. T&H Digital is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Client Errors.

5. Change in Control

1. The Client shall give T&H Digital not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees, or business practice). The Client shall be liable for any loss incurred by T&H Digital as a result of the Client’s failure to comply with this clause.

6. Release Waiver

1. Where T&H Digital gives any advice, recommendation, information, assistance or service provided by T&H Digital in relation to the Services (including, but not limited to, additional measures required to protect against potential security breaches or cyber-attack, etc.) supplied is given in good faith to the Client, or the Client’s agent and is based on T&H Digital’s own knowledge and experience and shall be accepted without liability on the part of T&H Digital, human error is possible under these circumstances, and T&H Digital shall make all effort to offer the best solution to the Client. Where such advice or recommendations are not acted upon then T&H Digital shall require the Client or their agent to authorise commencement of the Services in writing by way of signing T&H Digital’s release waiver. T&H Digital shall not be liable in any way whatsoever for any damages or losses that occur after any subsequent commencement of the Services.

7. Authorised Users

1. The Client may nominate individuals as Authorised Users, subject to prior approval as communicated by the Client to T&H Digital.
2. The Client warrants that all of the information provided to create an Authorised Account (whether that information is provided by an Authorised User or the Client) is accurate and complete in all respects and will update T&H Digital whenever any of this information changes.
3. The Client is responsible for ensuring that Authorised Users comply with the Contract to the fullest extent the Contract applies to the use of Authorised Accounts.

8. Price and Payment

1. At T&H Digital’s sole discretion, the Price shall be either:
  1. as indicated on any invoice provided by T&H Digital to the Client upon placement of an order for the Services; or
  2. the Price as at the date of delivery of the Services according to T&H Digital’s letter of engagement as previously disclosed to the Client upon the Client’s placement of an order for the Services; or
  3. T&H Digital’s quoted Price (subject to clause 8.2(b)) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
2. Additional and/or Varied Services:
  1. T&H Digital agrees that there will be no charge in the preparation of the initial quotation, which may include Client discussions, project scoping, research, testing and business analysis, etc. However, in some instances the aforementioned Services may be charged to the Client additionally (at T&H Digital’s sole discretion);
  2. where there is any variation to the accepted plan of scheduled Services, or instructions/specifications, which will be charged for on the basis of T&H Digital’s standard hourly rates (and double such rate for any Services provided outside T&H Digital’s normal business hours or for emergency works) and will be shown as variations on the invoice;
  3. where the performance of any Contract with the Client requires T&H Digital to obtain products and/or services from a third party, the Contract between T&H Digital and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to T&H Digital, and the Client shall be liable for the cost in full including T&H Digital’s margin of such products and/or services;
  4. the Client acknowledges and accepts that additional charges may apply to certain Services and Support provided by T&H Digital (including, but not limited to, reconfiguration of the Client’s computer or network). Any such charges shall be shown as a variation to the original Price;
  5. T&H Digital may adjust the monthly Subscription Fee (providing written notice to the Client) from time to time (subject to the addition of extra users) without prejudice. The updated Subscription Fee shall take effect in the following term. Where the Client does not accept such changes, it must immediately notify T&H Digital. Such notice of non-acceptance will cancel the renewal of the Contract, and the Contract will cease at the end of the term in T&H Digital gave notice of changes. All Services are billed to the Client one (1) month in advance (unless otherwise specified); and
  6. as a result of increases beyond T&H Digital’s reasonable control in the cost of materials or labour (e.g. third-party suppliers’ costs), or due to currency exchange rates.
3. Variations will be charged for on the basis of T&H Digital’s quotation, and will be detailed in writing, and shown as variations on T&H Digital’s invoice. The Client shall be required to respond to any variation submitted by T&H Digital within ten (10) working days. Failure to do so will entitle T&H Digital to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
4. At T&H Digital’s sole discretion, a reasonable deposit may be required upon placement of an order for the Services, in accordance with any quotation provided by T&H Digital or as notified to the Client prior to the placement of an order for the Services. Unless otherwise stated on the quote, fifty percent (50%) of the deposit will be due upon acceptance of the quote, forty percent (40%) three quarters of the way through the project and the balance of ten percent (10%) on completion of the Services.
5. Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by T&H Digital, which may be:
  1. before the commencement of the Services; or
  2. by way of instalments/progress payments in accordance with T&H Digital’s payment schedule; or
  3. the date specified on any invoice or other form as being the date for payment; or
  4. failing any notice to the contrary, the date which is fourteen (14) days following the date of any invoice given to the Client by T&H Digital.
6. Payment may be made by electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and T&H Digital.
7. T&H Digital may in its discretion allocate any payment received from the Client towards any invoice that T&H Digital determines and may do so at the time of receipt or at any time afterwards.
8. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by T&H Digital nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify T&H Digital in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as T&H Digital investigates the disputed claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in T&H Digital placing the Client’s account into default and subject to default interest in accordance with clause 28.1.
9. The Client acknowledges and agrees that the Client’s obligations to T&H Digital for the provision of Services shall not cease until:
  1. the Client has paid T&H Digital all amounts owing for the particular Services; and
  2. the Client has met all other obligations due by the Client to T&H Digital in respect of all Contracts between T&H Digital and the Client.
10. Receipt by T&H Digital of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then T&H Digital’s ownership or rights in respect of the Services, and this Contract, shall continue.
11. Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to T&H Digital an amount equal to any GST T&H Digital must pay for any supply by T&H Digital under this or any other agreement for providing T&H Digital’s Services. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client 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.

9. Provision of the Services

1. The Services are provided on the basis of specifications, information and instructions provided by the Client to T&H Digital (whether written or verbal). The Client acknowledges and accepts that it is their responsibility to ensure that such are detailed sufficiently to satisfy T&H Digital’s requirements of interpretation and understanding, as once accepted by the Client, T&H Digital’s quotation shall be deemed to interpret correctly those specifications, information and instructions. Therefore, T&H Digital shall not accept any liability for the supply of Services contrary to the Client’s intention, or errors or omissions in the Services, due to insufficient or inadequate provision of detailed specifications, information and instructions by the Client or oversight or misinterpretation thereof, and T&H Digital may charge the Client additional costs incurred thereby in remedying the Services, and if reasonably practical, will notify the Client of such costs before they are incurred and the Client agrees to them.
2. The commencement date shall be (whichever is the earlier) either:
  1. the date of signing this Contract; or
  2. the date of the first Delivery of the Services under this Contract; and
  3. upon the formation of this Contract, any previous agreement between the parties in respect of the Services will be terminated.
3. For subscription Clients, the Contract shall be for the period (‘initial term”) as agreed between both parties and shall revert to a monthly roll over basis automatically, thereafter, unless agreed otherwise until terminated by either party by giving at least thirty (30) days required notice prior to the next billing date or the expiration date of the initial term or any additional term. No partial refunds shall apply.
4. T&H Digital may provide the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
5. T&H Digital shall make every endeavour to enable the Services to be provided on the deadline date that was arranged between both parties in the statement of works. In the event that T&H Digital is unable to provide the Services as agreed solely due to any action or inaction of the Client (including, but not limited to, delays by the Client regarding the sign-off of any documents relating to the project etc) then T&H Digital shall be indemnified from any liability for any resulting failure to provide the Services and/or entitled to:
  1. charge a reasonable fee for re-providing the Services at a later time and date; or
  2. terminate the Contract in accordance with clause 29.
6. Should T&H Digital be liable for any delays, T&H Digital will reimburse the Client at a rate of one hundred and fifty dollars ($150.00) per Business Day past the deadline date.
7. In the event that the Client requests T&H Digital to provide emergency Services outside of T&H Digital’s business hours (including all public holidays), the Client acknowledges and accepts that additional charges may apply unless otherwise agreed.

10. Right to Subcontract the Services

1. T&H Digital may elect to subcontract out any part of the Services or appoint agents to provide all or part of the Services to be performed under this Contract (either physically located domestically or internationally). T&H Digital will use its best endeavours to ensure any sub-contractors or agents engaged for the purposes of this Contract remain consistent with the provisions of this Contract. T&H Digital shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of T&H Digital’s sub-contractors or agents without the authority of T&H Digital.

11. Client Responsibilities and Terms of Use

1. When the Client uses the Services, the Client must:
  1. comply with all laws, all directors by a regulator, all notices issued by authorisation of, or under, law (e.g. Copyright Act 1968) and reasonable directions by T&H Digital;
  2. keep the Client’s account information, password, data confidential and secure. The Client remains responsible for any use or misuse of such;
  3. follow any reasonable instructions provided by T&H Digital in relation to the Services;
  4. ensure that content supplied to T&H Digital is not Prohibited Content, or contains any viruses, trojan horses, worms, time bombs, cancel bots or any other software program or routine designed for or capable of interfering with the operation of the Services;
  5. access and use the Services solely in accordance with these terms and conditions and any reasonable instructions provided by T&H Digital; and
  6. employ back-up power and surge protectors at the Client’s premises;
  7. respond promptly to T&H Digital’s communications in relation to the Services;
  8. provide accurate and prompt responses to T&H Digital’s requests for any information or documentation reasonably required by T&H Digital to provide the Services;
  9. maintain adequate security precautions in connection with the Client’s use of the Services (including, but not limited to, failure to use/maintain anti-virus Software, accessibility to the data via insecure internet connections, insecure passwords or unsecure access to passwords, leaving active connection to the hosted solution unattended or any other event which on the basis of a reasonable test would in the opinion of T&H Digital be inadequate etc.);
  10. ensure that T&H Digital at all times is granted all necessary licences, permissions and access reasonably required by T&H Digital to perform the Support including without limitation:
    1. logon and password access to any relevant computer systems; and
    2. remote online access to any relevant computer systems where available.
  11. remove most of the downtime risk associated with an “in-house” computer system; and
  12. failure by the Client to comply with clause 11.1 will entitle T&H Digital, at its option, to suspend the Services without liability until such time as clause 11.1 is complied with.
2. The Client must not:
  1. use, or attempt to use, or permit another person to use or attempt to use, the Services:
    1. so as to cause offence, to defame, abuse, communicate obscenities, menace or annoy;
    2. for any purpose or activity of an illegal or fraudulent nature in any jurisdiction, including damaging any property or injuring or killing any person, to breach the security of any computer network (hacking), to breach any person’s privacy, or to distribute unsolicited software or junk mail;
    3. for advertising purposes without T&H Digital’s express written consent;
    4. to breach any of the Intellectual Property rights held by T&H Digital or any third party;
    5. to transmit, publish or communicate materials which is defamatory, offensive, abusive, indecent, menacing or unwanted;
    6. to expose T&H Digital to liability (including any claims for damages);
    7. to install or store any software applications, code or scripts on or through the Services unless prior written approval from T&H Digital has been obtained;
    8. to disable or circumvent any protection or disabling mechanism related to the Services;
    9. to store, access or operate any data, code or Software on, or in connection with, the Software that could be categorised or identified as:

a computer virus or malicious code;
pornographic material; or
“warez” or associated with “warez”.

in any way which damages, interferes with or interrupts the Services, or a supplier’s network used to provide the Services;
to intercept or attempt to intercept any communication not otherwise intended for the Client;
contact T&H Digital’s suppliers or the wholesale / carrier or third-party provider of a service in relation to the Services or service faults. The supplier may impose a fee for doing so and this fee will be passed onto the Client. They may, however, contact the Client in relation to any reported service difficulties in relation to appointment making and service restoration, and for this reason T&H Digital will needs to provide the Client contact details to such parties.
logon to an account that the Client is not authorised to access;
access data or take any action to obtain services not intended for the Client;
attempt to probe, scan or test the vulnerability of any system, subsystem or network;
tamper, hack, modify or otherwise corrupt or breach security or authenticity measures without proper authorisation;
send spam or other duplicative or unsolicited messages in violation of applicable laws including without limitation the Spam Act 2003;
do anything that prevents or hinders T&H Digital from providing Support/hosting Services to any other person.

the Client acknowledges and agrees that spamming (i.e. the sending of unsolicited email), email address cultivation, or any unauthorised collecting of email addresses without prior notification of the email address owner is strictly prohibited; and
T&H Digital at its sole discretion acting reasonably shall be entitled to determine when there has been a breach of clause 11.2 and without limiting any other provision of these terms and conditions, T&H Digital shall be entitled without liability to take such actions as it deems appropriate in the circumstances.

If, in T&H Digital’s opinion, the Services are being used by anyone in breach of these terms and conditions (including clause 11) or internet etiquette, T&H Digital may:
1. refuse to post such infringing information to public areas;
2. remove, review or edit such infringing information from any computer on T&H Digital’s network, with the exception of private electronic messages;
3. discontinue any infringing communication;
4. suspend the Services indefinitely, or for a specific period;
5. terminate the Services, and refuse to provide the Services to the Client, or the Client’s associates, in the future; and
6. inform appropriate government and regulatory authorities of suspected illegal or infringing conduct.
T&H Digital may, at their sole discretion, limit or deny access to the Services is, in the judgement of T&H Digital, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network.
The Client authorise T&H Digital to delete without notice or liability any information (or equipment controlled by T&H Digital) that is found to be of an obscene nature, unauthorised, unlawful, uncollected for an excessive period of time or excessive in volume.
The Client acknowledges and agrees that:
1. any attempt to circumvent domain parking restrictions by using selective HyperText Transfer Protocol (“HTTP”) redirects, or any other method, to send traffic from parked domains to websites other than the main Website is strictly prohibited; if multiple domain names with separate content are required the appropriate account type must be used;
2. T&H Digital does not allow the installation of the Client’s own chat rooms on shared hosting accounts unless given express written permission by T&H Digital; these types of services tend to be large system hogs and T&H Digital cannot allow it as a default account option;
3. the Client is not permitted to run certain programs in the background on shared hosting servers; this tends to use a lot of system resources and can impair service to other Clients on that server. If the Client is unsure of whether or not their software falls into this category the Client should contact T&H Digital;
4. T&H Digital does not allow Internet Relay Chat (“IRC”) or IRC bots to be operated on their servers. Any account found to be in violation of this provision will be immediately suspended and/or deactivated and no refund will be issued;
5. the Client must not sublease, sub-host or give away control of any portion of their internet hosting space and/or resources (including, but not limited to, e-mail accounts, space, bandwith, File Transfer Protocol (“FTP”) accounts or access to their self-managed consoles to third parties etc.) unless otherwise given permission in writing by T&H Digital, as in the case of authorised reseller hosting accounts. T&H Digital reserves the right to:
  1. request contact details of the Client’s current website developer/webmaster in relation to the Client’s hosting account; and
  2. know who is accessing, and maintaining files on, T&H Digital’s servers.
6. file hosting and file storage services of any type is prohibited on all shared hosting accounts managed by T&H Digital, unless T&H Digital has given their express written permission. The Client must not use the shared hosting account as a dedicated download or file repository for use by external websites unless arranged otherwise with T&H Digital. T&H Digital’s shared hosting Services are strictly offered for websites hosted on T&H Digital’s servers only; this does not mean that the Client cannot have downloads on their website, this provision means that the Client cannot operate a website that specialises in downloads, and the Client may not use their shared hosting account as a storage repository for MP3s, games, videos, audio, music or other files not directly related to the Client’s website.

12. Website Development

T&H Digital’s Responsibilities:

Upon acceptance of T&H Digital’s quote, and in accordance with this Contract, T&H Digital will:
1. use its best endeavours to develop the Website in accordance with the Client’s instructions and specifications; and
2. to the extent specified in the Client’s instructions and specifications, negotiate and procure any third-party agreements on behalf of the Client.
The Client acknowledges and accepts that the development of the Website by T&H Digital is based upon current technology platforms (e.g. internet browsers etc.), and therefore T&H Digital cannot guarantee that Website’s features and /or content will display correctly, and that the overall visual experience will be the same, for use by either superseded or presently undeveloped technology.

Client’s Responsibilities:

In addition to any other obligations expressed in this Contract, it is the Client’s responsibility to provide T&H Digital:
1. all information (including data, logos, designs and/or graphic and related materials) to be incorporated into the Website; and
2. any other information, ideas or suggestions which are to be expressly considered by T&H Digital in developing the Website.
The Client shall provide T&H Digital the information in the following formats:
1. for text, files shall be in an electronic format or via email; and
2. for imaged, in an electronic format as prescribed by T&H Digital, or via email with the images of a suitable quality applicable for the use intended and without any subsequent image processing being required. T&H Digital shall not be responsible for the quality of images scanned from printed materials.
The Client acknowledges and accepts that additional expenses may be charged to the Client for any necessary action, including, but not limited to, photography and art direction, photography searches, media conversion, digital image processing or data entry services.
It shall be the Client’s responsibility to ensure that any specific requirements they may have for web browsers is included in the brief, as, unless otherwise specified therein, the choice of web browsers and technology used in the development of the Website shall be at the sole discretion of T&H Digital. In the event that additional Services are requested, or required (as per clause 12.2), in order to meet any specific requirements for web browsers, after T&H Digital has commenced work on the Website, shall be treated as a variation to the Price, and a strict estimation of further work required shall be submitted to the Client for approval before proceeding with the variation work.
T&H Digital will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the Website which is attributable to:
1. incorrect information provided by the Client, either pursuant to this clause or otherwise; or
2. failure by the Client to provide relevant information, either pursuant to this clause or otherwise; or
3. any third-party products and/or services used by T&H Digital in creation of the Website.

13. Search Engine Optimisation (“SEO”)

1. Although T&H Digital shall use their knowledge and experience to gain the best results possible, T&H Digital gives no guarantee of the quality of visitor or the position / page rank or volume of visits to the Web Site, or warranty that the Web Site will be effective in promoting the Client’s business or result in any increase in sales of the products/services of the Client. Periodic reporting will be sent to the Client’s nominated email address, at the sole discretion of T&H Digital.
2. The Client accepts that a SEO may change their policies and systems at any time and such, T&H Digital shall not be held liable for any fluctuations, changes or removal of your listing from a SEO.

14. Domain Registration

1. The Client shall be responsible for the payment of domain registration, hosting set-up and fees, advertising costs and any other third-party costs for Services that T&H Digital manages on the Client’s behalf.
2. Where T&H Digital is registering a domain name on the Client’s behalf, T&H Digital cannot guarantee the availability of the domain name, nor assume a successful registration or such a name.

15. Web Hosting Services

1. “Live Date” means the date in which T&H Digital provides the hosting Services as per initial acceptance of T&H Digital’s quotation.
2. Hosting Services shall only be used by the Client for lawful purposes. Any use which violates any applicable national or international laws is strictly prohibited (e.g. posting or transmitting any unlawful, threatening, abusive, libellous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind – including, but not limited to, any transmission constituting or encouraging conduct that would constitute a criminal offense or give rise to civil liability).
3. Hosting Services exclude domain registrations and SSL Certificates, and where the Client is changing from another hosting provider the install and set-up of the Website on T&H Digital’s webservers, which shall be charged to the Client additionally.
4. T&H Digital will, at its sole cost and expense:
  1. host the Website on T&H Digital’s webservers;
  2. ensure that from the Live Date:
    1. sufficient capacity is maintained on T&H Digital’s webserver to enable users access to the Website in a timely manner;
    2. the Website is accessible to users in accordance with the agreed service levels (subject to reasonable downtime for server maintenance which has been notified to the Client prior to the commencement of the downtime or (where applicable) maintenance; and
    3. provide the Client with reasonable access to the Website to perform maintenance services.
5. T&H Digital will not:
  1. alter or amend, or permit any person to alter or amend the Website without the written consent of the Client;
  2. post or display on the Website any advertisement, sponsorship or promotion without the written consent of the Client;
  3. use any user data for marketing, referral or other purposes except as expressly authorised by this Contract;
  4. sub-licence, rent, time-share, lease, lend or grant any rights to use the Website; or
  5. assign, transfer or authorise anyone else to exercise the rights in any licence granted pursuant to this Contract.
6. T&H Digital may, at their sole discretion, limit or deny access to the Services is, in the judgement of T&H Digital, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network.

Client’s Obligations:

The Client will, at its sole cost and expense:
1. subject to any agreement with T&H Digital for Website development, develop and maintain the Website;
2. provide the content to T&H Digital, in such form as reasonably prescribed by T&H Digital from time to time, and hereby grants T&H Digital a non-exclusive, worldwide, irrevocable licence to use such content for the purposes of hosting the Website;
3. do all things reasonably necessary to enable T&H Digital to host the Website on T&H Digital’s webserver;
4. change the type of hosting account used if that account is deemed by T&H Digital to be unacceptable because of poor service, lack of bandwidth or in any other way insufficient to support the Website; and
5. is responsible for any fees payable and due to previous hosting organisations engaged by the Client.

Network Traffic:

Network traffic shall be measured by T&H Digital and may include all forms of traffic to and from the Website. Domestic data transfer is provided free of charge, but T&H Digital reserve the right to suspend hosting Services (at any time and without notice to the Client) for what it deems to be excessive traffic usage.

Limitation of Liability for Hosting Services

In the event the hosting Services provided to the Client are disrupted or malfunction for any reason, T&H Digital’s liability shall be limited to damages which under no circumstances shall exceed the amount due and payable by the Client to T&H Digital for the Hosting Services during the period of disruption or malfunction.

16. Server Abuse

1. Any attempts to undermine or cause harm to T&H Digital’s servers, or a Client of T&H Digital, is strictly prohibited. T&H Digital reserves the right to seek compensation for loss of business and damage done to their servers by the Client, or dedicated server lessee.
2. It shall be the Client’s responsibility to ensure the security and confidentiality of their account and must not allow any unauthorised use of such by any third party. The Client will be liable for any infringement of these terms and conditions in respect of the Client’s account, irrespective of whether such infringement is by the Client or any authorised or unauthorised third party.

17. Client Data

1. Under this Contract, the Client will provide and have Client Data stored on T&H Digital’s servers. The Client acknowledges and agrees that Client Data may be stored on servers owned by third parties pursuant to arrangements entered into by T&H Digital.
2. The Client warrants that:
  1. they have the legal right to supply the data to T&H Digital in connection with the Services (and that there are no circumstances likely to give rise to breach of any of privacy); and
  2. the Client Data contains nothing that is defamatory.
3. T&H Digital will:
  1. only make copies of the Client Data to the extent reasonably necessary for the Services (which includes, but is not limited to, back-up security, disaster recovery and testing of the Client Data);
  2. not use, exploit, redistribute, re-disseminate, copy or store the data other than for the purposes of the Services; and
  3. take reasonable steps to secure and protect the Client Data.
4. The Client acknowledges and accepts that no information which is available on the internet is completely secure and agrees that T&H Digital will not be liable for any claim, loss or damage (including indirect or consequential loss or damage) to any extent should such security measures be overcome or breached, and the Client indemnifies T&H Digital in respect of any such claims.
5. The Client grants T&H Digital, and T&H Digital reserves, the right to use, test or manipulate the Client Data.
6. In making use of Client Data, T&H Digital will preserve the confidentiality of the Client Data in accordance with its obligations in Clause 25 and may amend or alter information to cause it to be unidentifiable.
7. The Client Data remains the property of the Client at all times.

18. Backups

1. T&H Digital makes no warranties or guarantees, implied or express, in respect of the retention of or continued accessibility of any back-ups in connection with the Services.
2. T&H Digital’s hosting accounts include a nightly and a fortnightly backup; these backups are for internal administrative and disaster recovery purposes only. Whilst T&H Digital maintains backups of hosted websites and e-mail, these backups are in no way guaranteed.
3. The Client is responsible for maintaining their own e-mail backups on their own systems; T&H Digital does not provide any sort of compensation for lost or incomplete data in the event that backups do not function properly.
4. T&H Digital will use their best endeavours to ensure complete and accurate backups of hosted data but assume no responsibility for this duty. It is recommended by T&H Digital that the Client always keeps a backup of their website whenever possible. T&H Digital makes no guarantees about the availability of backups.

19. Risk and Limitation of Liability

1. T&H Digital does not warrant that the Services will be free of defects, uninterrupted, accurate, complete, current, stable, bug-free, error-free or available at any time in respect of its operation. However, T&H Digital will undertake all necessary work to fix issues when found in a timely manner.
2. The Client acknowledges and agrees that T&H Digital shall not be held responsible or liable for:
  1. any loss, corruption, or deletion of files or data (including but not limited to, software programmes) resulting from illegal hacking or Services provided by T&H Digital. Whilst T&H Digital will endeavour to restore the Website, files or data (at the Client’s cost), it is the sole responsibility of the Client to back-up any data which they believe to be important, valuable, or irreplaceable prior to T&H Digital providing the Services. The Client accepts full responsibility for the Client’s software and data, and T&H Digital is not required to advise or remind the Client of appropriate backup procedures (unless included as part of the Services);
  2. loss or damage caused by any component failure, notwithstanding any rights the Client has under the CCA, or the Client’s software or hardware caused by any ‘updates’ provided for that Software; and/or
  3. any unlicensed software, data loss or problems arising caused by the user or software.
3. If during the provision of the Services T&H Digital is required to perform a backup of any data to its server, as it sees fit, in order to repair computers/devices such information data will be held for a maximum of thirty (30) days. The Client must inform T&H Digital within thirty (30) days (commencing from the repair date) if any data is missing so that T&H Digital can attempt to restore the missing data. Whilst T&H Digital will take all possible precaution to protect the Client’s data on T&H Digital servers it may be required in some circumstances to view personal data in order to test a successful data recovery or data restore procedure, T&H Digital will treat such information as confidential and shall not disclose any or part thereof of said information, unless it falls under the umbrella as detailed in clause 11.3(f) . After thirty (30) days T&H Digital will delete the data and T&H Digital accepts no liability for deletion of files should the Client fail to comply with this clause.
4. T&H Digital, its directors, agents or employees will not be liable in any way for any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to the provision of the Services by T&H Digital to the Client.
5. The Client agrees to defend, hold harmless and indemnify T&H Digital for any and all claims, causes of action, damages, demands, fines, liabilities and penalties arising out of the Clients breach of any warranty made by the Client pursuant to this Contract. The Client further agrees to defend, hold harmless and indemnify T&H Digital for any and all claims, causes of action, damages, demands, fines, liabilities and penalties arising out of the Client’s negligent or reckless acts or omissions arising out of this Contract.
6. The Services are provided on an “as is, as available” basis. T&H Digital specifically disclaims any other warranty, express or implied, including any warranty of merchantability or fitness for a particular purpose.

Public Access:

The Client understands that by placing information on the Website, such information may be accessible to all internet users. T&H Digital does not (unless expressly requested by the Client) limit or restrict access to such information, nor protect such information from copyright infringement or other wrongful activity. The Client assumes full responsibility for their use of the Services, and it is the Client’s sole responsibility to evaluate the accuracy, completeness and usefulness or all opinions, advice, services, and other information, and the quality and merchantability of all Services provided by T&H Digital, or on the internet generally.

20. Personal Property Securities Act 2009 (“PPSA”)

1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
2. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all the Client’s present and after acquired property being a charge, including anything in respect of which the Client has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Client to T&H Digital for Services – that have previously been provided and that will be provided in the future by T&H Digital to the Client.
3. The Client undertakes to:
  1. promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which T&H Digital may reasonably require to;
    1. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
    2. register any other document required to be registered by the PPSA; or
    3. correct a defect in a statement referred to in clause 20.3(a)(i) or 20.3(a)(ii).
  2. indemnify, and upon demand reimburse, T&H Digital for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Services charged thereby;
  3. not register a financing change statement in respect of a security interest without the prior written consent of T&H Digital; and
  4. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Services in favour of a third party without the prior written consent of T&H Digital.
4. T&H Digital and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
5. The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
6. The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
7. Unless otherwise agreed to in writing by T&H Digital, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
8. The Client must unconditionally ratify any actions taken by T&H Digital under clauses 20.3 to 20.5.
9. Subject to any express provisions to the contrary (including those contained in this clause 20), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

21. Security and Charge

1. In consideration of T&H Digital agreeing to provide its Services, the Client grants T&H Digital a security interest by way of a floating charge (registerable by T&H Digital pursuant to the PPSA) over all of its present and after acquired rights, title and interest (whether joint or several) in all other assets that is now owned by the Client or owned by the Client in the future, to the extent necessary to secure the repayment of monies owed under this Contract for provision of the Services under this Contract and/or permit T&H Digital to appoint a receiver to the Client in accordance with the Corporations Act 2001 (Cth).
2. The Client indemnifies T&H Digital from and against all T&H Digital’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising T&H Digital’s rights under this clause.
3. In the event that the Client defaults or breaches any term of this Contract and as a result, the security provided in clauses 8.9,20.2 and 21.1 as applicable, is deemed insufficient by T&H Digital to secure the repayment of monies owed by the Client to T&H Digital, the Client hereby grants T&H Digital a security interest as at the date of the default, by way of a charge, that enables the right and entitlement to lodge a caveat over any real property and or land owned by the Client now, or owned by the Client in the future, to secure the performance of the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money.

22. Defects, Warranties the Competition and Consumer Act 2010 (“CCA”)

1. The Client shall have fourteen (14) days from delivery to test and evaluate the developed product created as part of the Services. If the developed product does not satisfy the acceptance criteria, the Client will have thirty (30) days to give T&H Digital written notice stating the reasons why the developed product is not acceptable or notify T&H Digital of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford T&H Digital an opportunity to inspect/review the developed product within a reasonable time following such notification if the Client believes the developed product is defective in any way. If the Client shall fail to comply with these provisions, the developed product shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
2. For defective Services, T&H Digital will have thirty (30) days from the receipt of the required notice under clause 22.1 to correct the deficiencies.
3. The Client will then have thirty (30) days to inspect, test and re-evaluate the developed product.
4. If the developed product still does not satisfy the acceptance criteria, the Client will have the option to either:
  1. repeat the procedure set out from Clause 22.1 to 22.3; or
  2. terminate this Contract pursuant to Clause 29.
5. If T&H Digital is required to rectify, re-provide, or pay the cost of re-providing the Services under clause 22.1 or the CCA, but is unable to do so, then T&H Digital may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services which have been provided to the Client which were not defective.
6. To the maximum extent permitted by law, the Services are provided without guarantee, warranty or representation as to the accuracy, reliability or completeness of the Services. In particular, the Client acknowledges and accepts that T&H Digital does not guarantee, warrant or represent that the Services will achieve any specific results for the Client's business such as increased website traffic, sales or otherwise.
7. T&H Digital will make best efforts to ensure that the Client receives continual and uninterrupted Services (including network or hosting servers) during the term of this Contract, however T&H Digital does not in any way warrant or otherwise guarantee the availability of the Services, which shall be subject to regularly scheduled maintenance cycles, and many events/circumstances beyond the control of T&H Digital. In no event though, shall T&H Digital be liable to the Client for damages (including loss of income) resulting from or in relation to any failure or delay (including server downtime, programming errors, lack of connection or slow connection) of T&H Digital to provide Services under this Contract, or any loss of data, if such delays or failures are due to circumstances beyond our control. Such a failure or delay shall not constitute a default under this Contract.
8. Further to clause 22.7, T&H Digital does not warrant that the Services will be free of defects, uninterrupted, accurate, complete, current, stable, bug-free, virus-free, error-free or available at all times.

23. Intellectual Property

1. Where T&H Digital has designed, drawn or developed Services for the Client, T&H Digital retains full intellectual property ownership of T&H Digital’s proprietary software, design, code, materials, source code of all images and design, routines and Services, including the copyright in any designs and drawings and documents or discovered during the provision of the Services. T&H Digital hereby grants to the Client an irrevocable, non-exclusive and non-transferable worldwide licence to use T&H Digital’s materials, routines and Services solely for the purpose of, and as necessary for, the Client to benefit from the Services in accordance with this Contract, conditional upon the Client fulfilling their obligations under this Contract (including, but not limited to, the full payment of the Price). Except as expressly permitted under this Contract, the Client will not at any time create, copy, duplicate or use, or otherwise take any commercial advantage of T&H Digital’s intellectual property, nor assist any other party to do so, except as authorised under this Contract.
2. The Client grants T&H Digital a non-exclusive and revocable licence to use the Client's data/information provided by the Client to T&H Digital during the term and solely for the purpose of, and as necessary for, T&H Digital performing the Services in accordance with this Contract.
3. The Client warrants that all designs, specifications or instructions given to T&H Digital will not cause T&H Digital to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify T&H Digital against any action taken by a third party against T&H Digital in respect of any such infringement.

24. Third-Party Materials

1. The Client and T&H Digital acknowledge and agree that:
  1. nothing in this Contract is intended to affect, or affects, the ownership of the intellectual property rights in third-party materials, which will be subject to the terms and conditions applicable to them under agreements between the third party and the Client or T&H Digital, as the case may be; and
  2. unless otherwise expressly authorised by the owner of the intellectual property rights in the third-party materials:
    1. the authorship of any third-party materials will be acknowledged on any use of those materials; and
    2. the integrity of the third-party materials will be preserved.
2. The Client agrees to indemnify T&H Digital and any indemnified party against any claim, loss or damage (indirect and consequential loss and damage included) arising in connection with the breach of third-party intellectual property rights or loss and damage of third-party materials.

25. Confidentiality

1. Each party agrees to treat all information and ideas communicated by the other party confidential and each agrees not to divulge it to any third party, without the other party's written consent.
2. The quotation and the information contained in the quotation or any other schedule provided by T&H Digital to the Client is done so on a “commercial in confidence” basis thereby, the Client agrees not to reproduce or provide said information in any manner to any third party without the prior written approval of T&H Digital.
3. Either party must promptly return or destroy all Confidential Information of the other party in its possession or control at the other party’s request, unless required by law to retain it.
4. Confidential Information excludes information:
  1. generally available in the public domain (without unauthorised disclosure under this contract); or
  2. required by law, any stock exchange or regulatory body to be disclosed; or
  3. received from a third party entitled to disclose it; or
  4. that is independently developed.
5. The obligations of this clause 25 shall survive termination or cancellation of this Contract.

26. Media Release

1. The Client shall not, without the express written approval of T&H Digital, make any press release or other public announcements concerning the transactions contemplated by this Contract or T&H Digital's involvement with the Services (or allow any other party to make a similar announcement), except as and to the extent that the Client is obligated by law.
2. Where the Client is obligated by law to make any public statement as described in clause 26.1, the Client shall advise T&H Digital prior to issuing any such public statement and the parties shall use their best efforts to cause a mutually agreeable statement to be issued.
3. The Client may not in any way damage the reputation of T&H Digital and the Client acknowledges that damages may be claimed against T&H Digital from the Client for any breach of this clause 26.
4. The Client agrees that T&H Digital may acknowledge that T&H Digital acted for the Client and may publicise these details in various media outlets, including but not limited to, T&H Digital's website, print materials and social media site.
27. Restraint Period
1. The Client:
  1. acknowledges and accepts that during the course of the Services they will access T&H Digital’s Confidential Information and valuable relationships and business contacts of T&H Digital; and
  2. acknowledges and agrees that:
    1. for the duration of the Contract and for a period of six (6) months after the end of the Contract ("Restraint Period"), not to (or assist any third party to) approach, employ, engage, hire, solicit, divert, or entice away from T&H Digital, any person introduced to the Client by T&H Digital; and
    2. they must not, in any capacity, in the territory during the Restraint Period, knowingly promote, participate in, operate or engage in (whether on its own account or in partnership or by joint-venture or in any other capacity) a business or operation similar to, or otherwise competitive with T&H Digital’s business.
2. The Client further acknowledges and agrees that the provisions in this Clause 27 are fair, reasonable and adequate to protect T&H Digital’s legitimate commercial interests.

28. Default and Consequences of Default

1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at T&H Digital’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
2. If the Client owes T&H Digital any money, the Client shall indemnify T&H Digital from and against all costs and disbursements:
  1. incurred; and/or
  2. which would be incurred and/or
  3. for which by the Client would be liable;

in regard to legal costs on a solicitor and own client basis incurred in exercising T&H Digital’s rights under these terms and conditions, internal administration fees, T&H Digital’s Contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.

Further to any other rights or remedies T&H Digital may have under this Contract, if a Client has made payment to T&H Digital, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by T&H Digital under this clause 28 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.
Without prejudice to T&H Digital’s other remedies at law T&H Digital shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to T&H Digital shall, whether or not due for payment, become immediately payable if:
1. any money payable to T&H Digital becomes overdue, or in T&H Digital’s opinion the Client will be unable to make a payment when it falls due;
2. the Client has exceeded any applicable credit limit provided by T&H Digital;
3. the Client becomes 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; or
4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

29. Cancellation and Termination

1. Without prejudice to any other remedies the parties may have, if at any time either party is in breach of any obligation (including those relating to payment) under these terms and conditions (“the Breaching Party”) the other party may suspend or terminate the supply of Services to the other party, with immediate effect, by providing the Breaching Party with three (3) Business Days written notice. Neither party will be liable for any loss or damage the other party suffers because one of the parties has exercised its rights under this clause.
2. If T&H Digital, due to reasons beyond T&H Digital’s reasonable control, is unable to deliver any Services to the Client, T&H Digital may cancel any Contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are delivered by giving written notice to the Client. On giving such notice T&H Digital shall repay to the Client any money paid by the Client for the Services. T&H Digital shall not be liable for any loss or damage whatsoever arising from such cancellation.
3. The Client may cancel delivery of the Services by written notice served within forty-eight (48) hours of placement of the order. If the Client cancels delivery in accordance with this clause 29.3, the Client will not be liable for the payment of any costs of T&H Digital, except where a deposit is payable in accordance with clause 8.4.
4. T&H Digital may, in addition to their right to cancel under clause 29.1 and 29.2 do so at any time:
  1. prior to the commencement of the Services, by giving notice to the Client, in the event T&H Digital determine it is not technically, commercially or operationally feasible to provide the Services to the Client; or
  2. in the event the Client materially breaches these terms and conditions, and such breach is not capable of remedy.
5. Should the Client, for any reason, cause the Services to be delayed for more than one (1) month after the acceptance date, this Contract will be terminated by T&H Digital (at their sole discretion) and all Services completed, but not billed or paid, will be payable in full within seven (7) days from the date of the submitted invoice.
6. Upon termination of this Contract:
  1. T&H Digital will immediately delete all files and content relating to the Client and the Services provided thereto; and
  2. the Client is obligated to:
    1. pay the fees for any and all Services completed by T&H Digital up until the termination date; and
    2. immediately return or (if requested by T&H Digital) destroy T&H Digital Confidential Information within its possession or control and certify to T&H Digital that it has been destroyed.
7. It is the Client responsibility to make arrangements for the transfer of their data prior to the termination date. T&H Digital accepts no liability for any loss or damage incurred by the Client as a result of the deletion of such data.
8. In the event the Services are terminated as per clauses 29.1 or 29.4, the Services can be re-instated under a new agreement at the prevailing rates; however no credits or discounts will be granted and reinstatement costs shall apply.

30. Privacy Policy

1. All emails, documents, images or other recorded information held or used by T&H Digital is Personal Information, as defined and referred to in clause 30.3, and therefore considered Confidential Information. T&H Digital acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). T&H Digital acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Client’s Personal Information, held by T&H Digital that may result in serious harm to the Client, T&H Digital will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
2. Notwithstanding clause 30.1, privacy limitations will extend to T&H Digital in respect of Cookies where the Client utilises T&H Digital’s website to make enquiries. T&H Digital agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
  1. IP address, browser, email client type and other similar details;
  2. tracking website usage and traffic; and
  3. reports are available to T&H Digital when T&H Digital sends an email to the Client, so T&H Digital may collect and review that information (“collectively Personal Information”).

If the Client consents to T&H Digital’s use of Cookies on T&H Digital’s website and later wishes to withdraw that consent, the Client may manage and control T&H Digital’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the website.

The Client agrees for T&H Digital to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by T&H Digital.
The Client agrees that T&H Digital may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
1. to assess an application by the Client; and/or
2. to notify other credit providers of a default by the Client; and/or
3. to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
4. to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
The Client consents to T&H Digital being given a consumer credit report to collect personal credit information relating to any overdue payment on commercial credit.
The Client agrees that personal credit information provided may be used and retained by T&H Digital for the following purposes (and for other agreed purposes or required by):
1. the provision of Services; and/or
2. analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
3. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
4. enabling the collection of amounts outstanding in relation to the Services.
T&H Digital may give information about the Client to a CRB for the following purposes:
1. to obtain a consumer credit report; and/or
2. allow the CRB to create or maintain a credit information file about the Client including credit history.
The information given to the CRB may include:
1. Personal Information as outlined in 30.3 above;
2. name of the credit provider and that T&H Digital is a current credit provider to the Client;
3. whether the credit provider is a licensee;
4. type of consumer credit;
5. details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
6. advice of consumer credit defaults (provided T&H Digital is a member of an approved OAIC External Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and T&H Digital has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
7. information that, in the opinion of T&H Digital, the Client has committed a serious credit infringement; and/or
8. advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
The Client shall have the right to request (by e-mail) from T&H Digital:
1. a copy of the Personal Information about the Client retained by T&H Digital and the right to request that T&H Digital correct any incorrect Personal Information; and
2. that T&H Digital does not disclose any Personal Information about the Client for the purpose of direct marketing.
T&H Digital will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.
The Client can make a privacy complaint by contacting T&H Digital via e-mail. T&H Digital will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.

31. Service of Notices

1. Any written notice given under this Contract shall be deemed to have been given and received:
  1. by handing the notice to the other party, in person;
  2. by leaving it at the address of the other party as stated in this Contract;
  3. by sending it by registered post to the address of the other party as stated in this Contract;
  4. if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission; or
  5. if sent by email to the other party’s last known email address.
2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

32. Trusts

1. If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust or as an agent for a trust (“Trust”) then whether or not T&H Digital may have notice of the Trust, the Client covenants with T&H Digital as follows:
  1. the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust, the trustees and the trust fund;
  2. the Client has full and complete power and authority under the Trust or from the Trustees of the Trust as the case may be to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust, the trustees and the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
  3. the Client will not during the term of the Contract without consent in writing of T&H Digital (T&H Digital will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
    1. the removal, replacement or retirement of the Client as trustee of the Trust;
    2. any alteration to or variation of the terms of the Trust;
    3. any advancement or distribution of capital of the Trust; or
    4. any resettlement of the trust fund or trust property.

33. Unforeseen Event

1. Neither party shall be liable for any default due to any act of God, war (whether declared or not), terrorism, strike, lock-out, civil commotion or riot, fire, natural disaster, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government provider, a failure of a supplier, public utility or common carrier or computer disruption to the effects of a virus or other malicious code or other event beyond the reasonable control of either party (“Unforeseen Event”).
2. If a party becomes unable (wholly or in part) by Unforeseen Event, to carry out any of its duties or obligations under this Contract:
  1. the party must give the other party prompt written notice of:
    1. detailed particulars of the Unforeseen Event; and
    2. so far as is known, the probable extent to which the party will be unable to perform or will be delayed in performing the duty or obligation.
  2. the relevant duty or obligation, so far as it is affected by the Unforeseen Event, will be suspended during the continuance of the Unforeseen Event; and
  3. the party will use all reasonable efforts to overcome or remove the Unforeseen Event as quickly as possible; and
  4. shall be entitled (at its option) to terminate this Contract or extend the time for performance without penalty, if the Unforeseen Event continues for a period in excess of sixty (60) Business Days.
3. This clause does not apply to a failure by the Client to make a payment to T&H Digital, once the parties agree that the Unforeseen Event has ceased.

34. General

1. Any dispute or difference arising as to the interpretation of these terms and conditions or as to any matter arising herein, shall be submitted to, and settled by, mediation before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings) by notifying the other party in writing setting out the reason for the dispute. The parties shall share equally the mediator’s fees. Should mediation fail to resolve the dispute, the parties shall be free to pursue other dispute resolution avenues.
2. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable, that provision shall be severed from this Contract, and the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
3. These terms and conditions and any Contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts in that state.
4. T&H Digital may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent provided the assignment does not cause detriment to the Client.
5. The Client cannot licence or assign without the written approval of T&H Digital.
6. 34.6.The Client agrees that T&H Digital may amend their general terms and conditions for subsequent future Contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for T&H Digital to provide Services to the Client.
7. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules or measures being enforced by Governments, including but not limited to, any Government imposed border lockdowns, etc, (“Force Majeure”) or other event beyond the reasonable control of either party.
8. 34.8.Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.
9. 34.9.The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.
10. 34.10.If part or all of any term of this Contract is or becomes invalid, illegal or unenforceable, it shall be severed from this Contract and shall not affect the validity and enforceability of the remaining terms of this Contract.

Terms & Conditions of Trade

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