This Client User Agreement describes the terms and conditions on which you are allowed to use our Website and our Services. We have incorporated by reference all linked information.
In this Agreement:
(1.a) ”Account“ means the account you open when you register on the Website.
(1.b) “Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth)
(1.c) “Background IP” means any Intellectual Property:
- owned by or licensed to a party that was developed before the date of or outside the scope of this Agreement; and
- that a Party has a right to use at the date of this Agreement.
(1.d) ”Claim“ means any cost, expense, loss, damage, claim, settlement, liability, action or proceeding whether or not presently ascertained, immediate, future or contingent and includes legal costs on a full indemnity basis.
(1.e) “Client” or “you” means the person or entity who has completed the electronic application form and who is approved in accordance with clause 4.1 to join Magmell as a Consultant, Client or User.
(1.f) ”Commission“ means remuneration in the percentage of Fees payable to be deducted and retained by Magmell in respect of any Project.
(1.g) ”Confidential Information“ means any information in any form disclosed by Magmell or its Clients to Magmell or acquired by Magmell from Magmell or its Clients, including: any information passing from the personnel of Magmell or its Clients; any information relating to this document, including any matter relating to the Services; and any information regarding the previous, current or future business interests, operations or affairs of Magmell and its Clients or any of their related corporations or of any person or entity with which Magmell and its clients may deal or be concerned, but excluding any information that Magmell can establish: is in the public domain other than through disclosure in breach of this Agreement; is independently developed by Magmell; or is received by Magmell from a third party who is not bound by obligations of confidence in relation to the information. For the avoidance of doubt, the Developed Material is Confidential Information.
(1.h) “Consultant” means a User who has been approved to complete Projects.
(1.i) ”Developed Material“ means materials in any form produced or developed by Magmell under, pursuant to or in the course of any Project or client engagement including, without limitation, any documents, information or data.
(1.j) ”Expenses“ means the out-of-pocket expenses and disbursements reasonably incurred in performance of the Services. It excludes all normal costs of getting to client sites such as travel within metropolitan areas, and parking expenses.
(1.k) “Fees” means the total sum of fees payable by the Client under or in respect of any Project or engagement.
(1.l) “Magmell”, “we”, “our” or “us” means Magmell Pty Ltd (ABN 82 644 373 839).
(1.m) ”Insolvency Event“ means the happening of any of the following events: a party ceases to be able to pay its debts as and when they become due; a party becoming an ‘externally-administered body corporate’ within the meaning of the Corporations Act; any step being taken for the winding up or dissolution of a party; a meeting of directors of a party considers a resolution that an administrator of that party should be appointed; a party being insolvent within the meaning of the Corporations Act, or being taken or presumed to be insolvent; a party commits an ‘act of bankruptcy’ within the meaning of section 40 of the Bankruptcy Act; distress, attachment or other execution being levied or enforced over any of a party’s property;
(1.n) ”Intellectual Property“ means any industrial and intellectual property rights including, without limitation: any present or future intellectual property rights, whether registered or not, in respect of or in connection with any Confidential Information, know-how, inventions, discoveries, copyright, patents, trademarks, design rights, plant breeders’ rights, eligible layouts and circuit layouts; and any rights to apply for registration of such industrial and intellectual property rights.
(1.o) “Marketing Content” means articles, opinions, information, diagrams, videos, social media posts or photos or other content developed for the purpose of promoting a business.
(1.p) “Moral Rights” take their meaning from the Copyright Act 1968 (Cth) and include the following rights of an author of works:
- the right of integrity of authorship;
- the right of attribution of authorship;
- the right not to have authorship falsely attributed; and
- other similar rights or forms of protection to the rights referred to in clauses 1(p)(i), 1(p)(ii) and 1(p)(iii) anywhere in the world.
(1.q) “Project” means any paid consulting service performed by Magmell or a Consultant for a Client or another User.
(1.r) ”Services“ means the facilitation by Magmell of commercial interactions between Users, both on and off the Website.
(1.s) “Specified Acts” relate to Moral Rights and mean any of the following classes or types of acts or omissions:
- using, reproducing, modifying, adapting, publishing, performing, broadcasting, communicating, commercialising or exploiting all or any part of the Developed Material, with or without attribution of authorship;
- supplementing the Developed Material with any other material;
- using the Developed Material in any context; and
- falsely attributing the authorship of any Developed Material.
(1.t) “User” means any party that uses the Services of Magmell, including but not limited to any Consultant or Client.
(1.u) “Website” means the website operated by Magmell and available at Magmell.
In this Agreement, unless it is stated to the contrary:
(1.a) the singular includes the plural and conversely;
(1.b) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(1.c) a reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them;
(1.d) a reference to an agreement or document (including this Agreement) is to the agreement or document as amended, varied, supplemented, novated or replaced, except to the extent prohibited by this Agreement or that other agreement or document;
(1.e) a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;
(1.f) a reference to dollars and $ is to the currency of Australia;
(1.g) the meaning of general words is not limited by specific examples introduced by including, or for example, or similar expressions;
(1.h) references to agree, approve or consent are references to agreement, approval or consent (as the case may be) in writing;
(1.i) nothing in this Agreement is to be interpreted against a party solely on the ground that the party put forward this Agreement or any part of it;
(1.j) headings in this Agreement do not affect interpretation; and
(1.k) the variation of any clause only affects that clause and does not otherwise affect the interpretation of this Agreement.
Magmell facilitates commercial interactions between Users, both on and off our Website.
4.1 Client Membership
You will have joined Magmell as a Client after your application is approved by Magmell and you have completed your profile.
You can become a Client of Magmell only if you are not restricted from doing so by contractual, ﬁduciary or other obligations. By registering as a Client with Magmell, you are representing that you are not restricted from doing so.
4.2 Account Security
Your Account should only be accessed by you. Sharing an account or the password to an account with others is not permitted and evidence of doing so will result in the account being blocked. You may only have one account. You shall be responsible for any breach of this Agreement by use of your Account, except in the case of fraud.
You agree to exercise reasonable care to maintain the security of your Account and to not disclose your Account information to anyone else, and to notify us immediately should you become aware of any use of your account or breach of security.
4.3 Profile Information
You agree to keep your profile information up-to-date and warrant that the information you provide is a true and accurate representation of you.
4.4 Communication with other Users
You agree that in communicating with other Users on the Website, you will at all times be professional, courteous and respectful, and that you will not:
- originate or distribute spam including chain messages, junk E-mail, broadcast messages or other electronic material which is for non-work related purposes;
- generate, transmit or store potentially offensive material including content or messages that are fraudulent, defamatory, embarrassing, obscene, harassing, abusive, intimidating, derogatory and/or other unlawful material; or
- post or send messages or material, which is pornographic or sexually explicit, contains comments or innuendo (including jokes) of a discriminatory, sexual or racist nature, or makes inferences about a person’s sexual preference.
If a complaint is made about or material discovered reflecting inappropriate use of the Website it will be investigated. Magmell reserves the right to terminate your membership or block your account for inappropriate communications on the platform.
5.1 Responsibility of Consultants
Magmell may undertake project work directly or engage a consultant to undertake Magmell activities. The Client acknowledges that Magmell is and remains entirely liable for the:
- Consultant’s performance; and
- performance of Magmell’s officers, directors, employees, consultants, subcontractors and agents,
under or in connection with this Agreement or any Project.
This clause 5.1 survives the termination of this Agreement.
5.2 Independent Contractor
Any work a Consultant performs for a Client through Magmell shall be as an independent contractor. A Consultant is not and shall not be deemed a partner, joint venturer, employee or agent of a Client or of Magmell, and the Contractor shall not be entitled to any benefits provided by a Client or Magmell to their employees.
Consultants must perform each Project: with due care and skill; in a professional manner; in accordance with any time frame or deadline agreed with the Client; in co-operation and co-ordination with the Client; in accordance with the Client’s reasonable instructions; and in the best interests of the Client.
Consultants conduct must not invite, directly or indirectly, any criticism of Magmell or any proceedings or actions against Magmell or bring into question the integrity or good reputation of Magmell.
5.4 Prohibition on Assignment, Sub-contracting and Transfer
Consultants must not assign, subcontract or transfer any of its rights or obligations under this Agreement, including subcontracting its performance of any part of the Project, without the prior written consent of the Client and without prior written notice to Magmell.
For the avoidance of doubt, Magmell remains liable for any obligations it subcontracts under this Agreement.
1. 5.5 Resources and Materials
The Client will provide to Magmell any information necessary for Magmell to complete the Project.
Magmell must provide all things necessary to perform the Project in accordance with this Agreement including computing equipment, office facilities, labour and materials.
2. 5.6 Fees
3. 5.6.1 General
In consideration for the performance of the Project by Magmell, the Client will pay Magmell the Fees.
The Client agrees to indemnify, defend and hold harmless Magmell and its officers, directors, employees, subcontractors and agents from and against any and all Claims which arise from, relate to or are connected with any:
(1.a) act or omission (including negligent act or omission) of Magmell in the performance or purported performance of any Project;
(1.b) wilful misconduct or gross negligence in Magmell’s performance of any Project;
(1.c) use of the Site and the Services by you or your agents, including any payment obligations incurred through use of the Services;
(1.d) failure to comply with this Agreement by you, including, without limitation, any breach of any third party Intellectual Property or any applicable law; or
(1.e) activity which the Client engages in with or through Magmell.
Magmell’s liability under this clause 6.1 will be reduced proportionally to the extent that any negligent act or omission was caused by Magmell.
6.2 No Warranty
The Client uses the Services at the Client’s own risk. The Services are provided on an ”as is“ and ”as available“ basis.
Any content downloaded or otherwise obtained through the use of the Website or the Services is downloaded at the Client’s own risk and the Client will be solely liable for any damage to the Client’s computer system or mobile device or loss of data that results from such download or your use of the Website or the Services.
To the fullest extent permitted by law, Magmell disclaims any and all warranties of any kind, express or implied, including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, accuracy or non-infringement.
Magmell does not warrant that the Website, or any part thereof, will be available or operate in an uninterrupted or error-free manner or that errors or defects will be corrected, or that the service is free of viruses or other harmful components.
Magmell does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party on or through the Magmell Website or Services or any hyperlinked website or service, and Magmell will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
6.3 Limited Liability
To the fullest extent permitted by law, Magmell shall not be liable to the Client, or any Consultant or third party (whether in contract, tort, under any statute or otherwise) for any Claim of any kind (including direct, indirect and consequential loss and damage of business revenue, loss or profits, failure to realise expected profits or savings or other commercial or economic loss of any kind), however caused arising out of or in any way related to the Services, a Project or this Agreement.
The Client must effectively manage its own risks including being adequately insured against all insurable risks, including, but not limited to, Public Liability, Product Liability, Professional Indemnity, Travel, Vehicle, Business Continuity, Income Protection, Life Insurance and equipment cover.
In signing this agreement, the Client declares that it is not bankrupt, nor in jeopardy of becoming subject to any form of insolvency administration or bankruptcy.
6.6 Australian Consumer Law
Notwithstanding any other term of this Agreement, if a supply under this Agreement is a supply of goods to a consumer within the meaning of the Australian Consumer Law then our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
These clauses 6.1, 6.2, 6.3, 6.4, 6.5, 6.6 and 6.7 survive the termination of this Agreement.
7.1 Background Intellectual Property
Magmell may, but is not obliged to, supply its Background IP for use in any Project.
If Magmell supplies its Background IP for use in a Project then subject to any express grant of a license under this Agreement, Magmell will retain all of its ownership rights in the Background IP.
Nothing in this Agreement has the effect of transferring or conveying Magmell’s Background IP to the Client or to any third party.
Unless otherwise agreed between Magmell and the Client, Magmell grants a world-wide, royalty-free, non-exclusive, irrevocable license (with the right to sublicense) to the Client to use and exploit the Background IP for the purpose of receiving the benefit of the Project.
7.2 Developed Material
All Developed Material vests or will vest upon creation in the Client.
Unless otherwise agreed between Magmell and the Client, the Client will grant Magmell a revocable, non-assignable and royalty-free licence to use the Developed Material.
Magmell warrants that the Developed Material will not infringe the Intellectual Property of any third party.
Magmell must use its best endeavours to ensure that a written consent is given by the author of any Developed Material to the Client (or any person claiming through the Client) performing any of the Specified Acts in respect of the Developed Material.
7.3 Magmell to have no rights in Intellectual Property
Magmell will not have any legal or equitable claim or right to any part of the Developed Material.
Magmell will not be responsible for any use or misappropriation of any Intellectual Property by the Client. Other than as expressly provided in this Agreement, any other agreements or disputes regarding Intellectual Property shall be made or resolved by Magmell and the Client.
These clauses 7.1, 7.2, 7.3 and 7.4 survive the termination of this Agreement.
8.1 Obligations of Confidence
(1.a) keep Magmell’s and their Users Confidential Information secret and confidential;
(1.b) use Magmell and their Users Confidential Information solely for the purpose of completing a Project, or as otherwise expressly authorised in writing by Magmell;
(1.c) not directly or indirectly disclose, or allow to be disclosed, Magmell or their Users Confidential Information (which for the avoidance of doubt includes the existence of this Agreement) to anyone;
(1.d) inform Magmell immediately upon becoming aware or suspecting that an unauthorised person has become aware of any Confidential Information; and
8.2 Permitted Disclosures
You are permitted to disclose Magmell’s Confidential Information only where you are required by law, provided that you give Magmell reasonable advance notice and opportunity to object to the requirement to disclose such information or obtain an appropriate order to protect its Confidential Information.
These clauses 6.1, 6.2 and 6.3 survive the termination of this Agreement.
Magmell and the Client may terminate this Agreement at any time for any reason. Termination will be effective upon notice to the other party.
In the event that your Account or this Agreement is suspended or terminated by you or Magmell, there will be no refunds for cancellation, you understand and agree that you shall receive no refund or exchange for any credits, any unused time on a subscription, any license or subscription fees for any portion of the Service, any content or data associated with your account, or for anything else.
10.1 Entire agreement
This Agreement contains the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements and understandings between the parties in connection with it.
If you are registering with Magmell, or procuring a Consultant from Magmell or a Client on behalf of a business, that business is taken to have accepted the terms of this Agreement and you are taken to have been duly authorised to bind the business.
Magmell may amend, update or change this Agreement from time to time by publishing them on the Website, without prior notice to you. You should periodically check the Website for changes to this Agreement.
10.3 Prohibition on Assignment and Transfer
The Client must not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of Magmell performing a Project and without prior written notice to Magmell.
10.4 No waiver
No failure to exercise nor any delay in exercising any right, power or remedy by a party operates as a waiver. A single or partial exercise of any rights, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
10.5 Further assurances
Each party agrees to do all things and sign all documents necessary or desirable to give full effect to the terms and conditions of this Agreement and the transactions contemplated by it.
Unless otherwise agreed in writing, the Client must pay all taxes, charges and other payments of every nature due in connection with a Project.
Neither party shall be liable to the other for any failure in the performance of its obligations under this Agreement to the extent that such failure is attributable to Force Majeure. The term “Force Majeure” shall mean an act of God, a strike, a lockout, act of public enemy, civil commotion, war, blockade, riot, state of emergency, lightning, fire, storm, flood, washout, explosion, Government restraint, or any form of Governmental intervention and any other cause which is not within the control of the party alleging it.
Governing law and jurisdiction
This Agreement is governed by the laws of South Australia and each party submits to the non-exclusive jurisdiction of courts exercising jurisdiction there in connection with matters concerning this Agreement.
Any dispute or difference whatsoever arising out of or in connection with this Agreement shall be submitted to mediation in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Mediation and Conciliation Rules.
If the dispute or difference is not settled within thirty (30) days of the submission to mediation (unless such period is extended by agreement of the parties), it shall be and is hereby submitted to arbitration in accordance with, and subject to, The Institute of Arbitrators & Mediators Australia Rules for the Conduct of Commercial Arbitrations.
Nothing in this clause serves to limit the right of the parties to injunctive relief.
Notwithstanding the existence of a dispute or difference each party shall continue to perform the Contract.