Legals

Terms and conditions

We work hard to keep all our legal mumbo jumbo as simple as possible, but we still have to have it.


1. Services

  1. Hatchhead Pty Ltd ACN 647 869 752 (Hatch Head) agrees to:
    1. provide the Services to the client set out in the attached proposal (Client) and as otherwise agreed between the parties in any future proposal (Proposal) in accordance with these terms and conditions (Terms); and
    2. perform the Services using qualified personnel in a professional manner in accordance with generally applicable Australian standards and regulations.
  2. By accepting a Proposal, or otherwise accepting commencement of the Services, the Client agrees to these Terms.

2. Client obligations

The Client, using qualified personnel, shall:

  1. provide all Client Data required by Hatch Head to allow Hatch Head to complete the Services in a timely fashion and as required by Hatch Head;
  2. carry out agreed preparations and take other steps reasonably requested by Hatch Head to allow Hatch Head to perform the Services;
  3. grant Hatch Head access to the premises, equipment, computer bases, software and hardware necessary for Hatch Head to perform the Services;
  4. review information, make decisions and, on an ongoing basis, provide Hatch Head with the information necessary for Hatch Head to perform the Services; and
  5. provide Hatch Head with true and relevant information regarding the Client and its business.

3. User Acceptance Testing

  1. The Client may perform UAT in respect of any Deliverable only in accordance with the UAT processes set out in a Proposal or as otherwise agreed between the parties in writing.
  2. Hatch Head shall provide the Client with reasonable assistance to prepare and undertake each UAT.

4. Change Requests

  1. Where the Client wishes to make any change to the Services or the Deliverables, provided such change is within the reasonable capacity of Hatch Head to provide, the Client may submit a change request (Change Request) to Hatch Head. The Change Request must contain sufficient detail for Hatch Head to determine the effect of the requested change on the scope of the Services and Deliverables and the Fees (using Hatch Head’s then current charge rates).
  2. Within a reasonable period of receiving a Change Request, Hatch Head will provide to the Client a proposal for performing the changes to the Services and/or the Deliverables including:
    1. the proposed new Services and Deliverables; and
    2. any revised Fees and expenses.
  3. Hatch Head will have no obligation to make the requested change until the parties have agreed and signed a written agreement specifying, in particular, any changes to the Services and the Fees.

5. Fees and invoicing

5.1 Fees

  1. The Client shall pay Hatch Head the Fees for the Services.
    1. Background IP means any Intellectual Property Rights owned by Hatch Head which are created or derived independently of these Terms; and
    2. Third Party IP means Intellectual Property Rights proprietary to third parties (including open-source software) which are utilised by Hatch Head in the provision of the Services.
  2. Fees specified in these Terms and a Proposal are exclusive of GST and other similar taxes and surcharges and net of withholding or other similar taxes.

5.2 GST

  1. If Goods and Services Tax (GST) has application to any supply made under or in connection with these Terms, Hatch Head may, in addition to any amount or consideration payable under these Terms, recover from the Client an additional amount on account of GST, such amount to be calculated by multiplying the amount or consideration payable by the Client for the supply by the prevailing GST rate.
  2. Any additional amount on account of GST recoverable from the Client under this clause shall be calculated without any deduction or set-off of any other amount and is payable by the Client upon demand by Hatch Head whether such demand is by means of an invoice or otherwise.

5.3 Additional Services Fee

  1. In addition to the Services Fee, the Client shall pay all reasonable costs incurred by Hatch Head while performing support tasks, including but not limited to data communication costs, third party hosting costs, and the costs of any third-party software/plugins unless expressly specified otherwise in a Proposal (Additional Services Fee).
  2. Hatch Head shall together with its invoice for the Services Fee, submit details of any Additional Services Fee to the Client.

5.4 Invoices

  1. Within 10 Business Days of the last day of each calendar month or on such other dates as set out in a Proposal, Hatch Head must issue to the Client an invoice for the Fees and charges payable in respect of that period.
  2. The Client must pay invoices within 14 Business Days of receipt.

5.5 Failure to pay

If the Client does not pay the Fees on or before the due date, Hatch Head shall be entitled to receive interest on overdue payments of 1% per month and shall be entitled to withhold delivery or part thereof of Services yet to be provided.

5.6 Set off

Hatch Head may, without limiting any other rights or remedies it may have, set off any amounts owed to it by the Client under these Terms against any amounts payable by Hatch Head to the Client.

6. Intellectual Property Rights

6.1 Ownership

  1. Upon full payment of the Fees, the Intellectual Property Rights, other than the Background IP and the Third Party IP, in each of the Deliverables, the Application(s) and the Documentation shall vest in and become the absolute property of the Client Assigned IP) and the Client grants to Hatch Head a perpetual non-exclusive, royalty-free right to use the Assigned IP so long as such use does not otherwise breach its obligations under these Terms.
  2. The
    1. Background IP is, and shall remain the property of Hatch Head; and
    2. Third Party IP is, and shall remain the property of the relevant third party owner,
    and for so long as the Client is not in breach of these Terms, Hatch Head grants to the Client a perpetual non-exclusive, royalty-free, non-transferable right to use the Background IP and the Third Party IP to the extent necessary to obtain the full benefit of the Deliverables and the Services.
  3. For the purposes of this clause:
    1. Background IP means any Intellectual Property Rights owned by Hatch Head which are created or derived independently of these Terms; and
    2. Third Party IP means Intellectual Property Rights proprietary to third parties (including open-source software) which are utilised by Hatch Head in the provision of the Services.

6.2 Initial Proposal

Notwithstanding clause 6.1, where the Services consist (in whole or in part) of a detailed plan by Hatch Head setting out how Hatch Head proposes to complete a specific project or mandate, and such Proposal is not accepted by the Client, without limiting any other clause in these Terms, the Intellectual Property Rights in such Proposal shall remain the property of Hatch Head and the Client must not disclose such Proposal to any third party for the purposes of requesting that third party to utilise, replicate or modify such Proposal for the purpose of providing any similar services to the Client.

6.3 Client Data

  1. All Intellectual Property Rights in the Client Data remain the property of the Client or relevant third parties and nothing in these Terms shall be construed as giving Hatch Head any rights to such Intellectual Property Rights.
  2. In the event Hatch Head or its personnel are permitted access to or are otherwise provided with Client Data for any reason then, without prejudice to clause 8, Hatch Head and its personnel shall not without the prior written consent of the Client distribute, duplicate, reproduce or any way use (or permit the use of) any Client Data, or, modify, amend or alter the contents of Client Data or disclose or permit the disclosure of the Client Data to any third party without the prior consent of the Client.

6.4 Client warranty and indemnity

  1. The Client warrants that:
    1. it owns, or holds any necessary license of, all Intellectual Property Rights in the Client Data; and
    2. in utilising any Client Data, Hatch Head will not infringe, violate or otherwise conflict with any Intellectual Property Rights owned by a third party.
  2. The Client indemnifies Hatch Head from and against any liability arising out of any claim by a third party that the Client Data violates or infringes any Intellectual Property Rights owned by a third party.

6.5 Hatch Head warranty and indemnity

  1. Hatch Head warrants that:
    1. it owns, or holds any necessary license of, all Intellectual Property Rights in each Application, the Services and the Deliverables; and
    2. in utilising each Application, the Services and the Deliverables, the Client will not infringe, violate or otherwise conflict with any Intellectual Property Rights owned by a third party.
  2. Hatch Head indemnifies the Client from and against any liability arising out of any claim by a third party that Hatch Head and any of its Services, Deliverables or any Application violates or infringes any Intellectual Property Rights owned by a third party.

7. Term and termination

7.1 Term

  1. This document will commence upon the Commencement Date and will continue until terminated under clause 7.2, by mutual agreement between the parties or as otherwise set out in a Proposal.
  2. If no term is expressly set out in a Proposal, the engagement and this agreement to provide the Services will be terminable by Hatch Head on 30 days’ notice, provided such notice does not expire before the first anniversary of the date of commencement of the Services.

7.2 Termination for cause

In addition to any other rights to terminate set out in these Terms either party may at any time terminate this agreement with immediate effect by giving written notice to the other party if:

  1. the other party fails to pay any amount due pursuant to these Terms on the date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
  2. the other party commits a material breach of these Terms and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
  3. the other party repeatedly breaches any term of these Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Terms; or
  4. the other party suffers an Insolvency Event.

7.3 Obligations on termination

  1. On termination or expiry, each party shall as soon as reasonably practicable:
    1. return, destroy or permanently erase (as directed in writing by the other party) any documents, handbooks, storage devices or other information or data provided to it by the other party containing, reflecting, incorporating or based on Confidential Information belonging to the other party;
    2. permanently delete any proprietary software belonging to the other party from its IT network or its storage devices;
    3. promptly return (within ten days from termination or request) to the disclosing party all tangible Confidential Information (and all copies thereof) of the disclosing party, or upon written request from the disclosing party, destroy such Confidential Information;
    4. cease all further use of the other party’s Confidential Information, whether in tangible or intangible form; and
    5. return all of the other party’s equipment and materials,
    provided that:
    1. the Client may retain copies of any Hatch Head Confidential Information incorporated into the Deliverables or to the extent necessary to allow it to make full use of the Services; and
    2. if a party is required by any law, regulation, or government or regulatory body to retain any documents or materials containing the other party’s Confidential Information, it shall notify the other party in writing of such retention, giving details of the documents and/or materials that it must retain.
  2. On termination for any reason, the Client shall immediately pay any outstanding unpaid invoices and interest due to Hatch Head. Hatch Head shall submit invoices for any Services that it has supplied, but for which no invoice has been submitted, and the Client shall pay these invoices immediately on receipt.

8. Confidentiality

  1. Each party agrees to, and shall ensure each of its officers, employees and contractors:
    1. hold in strict confidence all Confidential Information of the other party;
    2. use the Confidential Information solely to perform or to exercise its rights under these Terms; and
    3. not transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any third party.
    4. use its best endeavours, including keeping such information in a safe place and implementing adequate security measures, to ensure that all Confidential Information is secure from unauthorised use, disclosure or copying by third parties.
  2. The obligations in clause 8(a) do not apply:
    1. to the extent necessary to enable disclosure required by law;
    2. to a disclosure agreed in writing between the parties; or
    3. where the Confidential Information has entered the public domain other than as a result of a breach by the Client of these Terms.

9. Limited warranty and exclusion of liability

9.1 Limitation of Liability

  1. This clause sets out the entire financial liability of the parties (including any liability for the acts or omissions of its employees, agents and subcontractors) to each other in respect of:
    1. any breach of these Terms;
    2. any use made of the Services, the Deliverables or an Application; and
    3. any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.
  2. As far as the law permits and unless otherwise specified in these Terms;
    1. all liability to a party for any injury, loss damage, cost or expense relating to or arising from these Terms, except to the extent that the injury, loss, damage, cost or expense arises from the negligent act or omission of a party, is excluded;
    2. the Client shall be solely responsible, as against Hatch Head, for any opinions, recommendations, forecasts or other conclusions made or actions taken by the Client, any client of the Client or any other third party based (wholly or in part) on the results obtained from the use of the Services by the Client;
    3. Hatch Head shall have no liability for any damage caused by errors or omissions in any information or instructions provided to Hatch Head by the Client in connection with the Services;
    4. Hatch Head shall have no liability for, and no obligation to amend, replace or refund, any Deliverables that cease to function in accordance with any agreed specifications or services levels to the extent the failure arises from a change to any operating or software platform or any change to the terms and conditions implemented by any third party;
    5. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are excluded from these Terms; and
    6. where the Services becomes unavailable due to the failure of any third-party hosting provider, Hatch Head’ liability for a breach of these Terms will be limited to the extent that such failure was caused, or contributed to, by Hatch Head.

9.2 Mitigation

Each party must mitigate any loss it suffers as a result of the breach by the other party to these Terms or any warranty or indemnity provided under these Terms.

9.3 Maximum liability

  1. Subject to clause 9.3(b), the total liability of each party arising under or in connection with these Terms will be limited in the aggregate to the total Fees payable in the previous 12 month period.
  2. Clause 9.3(a) will not limit or exclude the liability of either party for any claim arising from:
    1. death or personal injury or damage to property resulting from negligence; or
    2. fraud or fraudulent misrepresentation; or
    3. the deliberate default or wilful misconduct of that party or its employees, agents or contractors;
    4. the non-payment of any Fees; or
    5. the indemnities contained in clauses 6.4 and 6.5.

9.4 Consequential Loss

Neither party will be liable to the other or any other person for any Consequential Loss.

9.5 Australian Consumer Law

If the Australian Consumer Law applies to the supply of goods or services under these Terms, Hatch Head acknowledges and agrees that its goods and services come with a guarantee that cannot be excluded under the Australian Consumer Law, and that the following mandatory notice under section 102(1) of the Australian Consumer Law that must be provided to the Client will apply:

Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

  • to cancel your service contract with us; and
  • to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

10. Data Protection

  1. Both parties must comply with all applicable requirements of the Data Protection Legislation.
  2. Without prejudice to the generality of clause 9.5(a), the Client will ensure that it has all necessary and appropriate consents and notices in place to enable lawful transfer of any personal data to Hatch Head for the duration and purposes of these Terms so that Hatch Head may lawfully use, process and transfer the personal data in accordance with these Terms on the Client’s behalf.
  3. Hatch Head shall notify the Client immediately if it becomes aware of any security incident affecting its network and information systems that could potentially affect the Client and shall respond without delay to all queries and requests for information from the Client about any security incident, whether discovered by Hatch Head or the Client.

11. Non-solicitation

  1. During the term of these Terms and for a period of six months after its termination neither party shall, without the prior written consent of the other, solicit, or permit any related entity of that party to solicit, the employment of any person who is employed by the other party or its related entities in the course of developing, supplying, maintaining or supporting the Services or any part of it.
  2. if a party breaches clause 11(a), then it shall pay to the other party an amount equal to twelve month’s salary (excluding any bonus or benefits) for the employee concerned in recognition only of the disruption that such inducement has caused to the efficient conduct of the other party's business.

12. Force Majeure

Neither party shall be liable for any delay or failure to perform its obligations pursuant to this document if such delay is due to a Force Majeure Event.

13. Dispute Resolution

  1. Neither party may commence court proceedings concerning any dispute between the parties arising out of or in relation to this document (Dispute), unless the party starting the proceedings has complied with this clause 13.
  2. A party claiming that a Dispute has arisen must notify the other party in writing, specifying the nature of the Dispute (Dispute Notice).
  3. Following the Dispute Notice being given, the CEO of both parties must endeavour in good faith to resolve the Dispute within 14 days.
  4. If the Dispute is not resolved within 14 days of the Dispute Notice being given, the parties must endeavour in good faith to resolve the Dispute by mediation as follows:
    1. if the parties fail to agree on the appointment of a mediator within 21 days of the Dispute Notice being given, either party may apply to the President of the Law Society of Queensland or the nominee of the President to nominate a mediator (which nomination the parties must accept);
    2. if the mediator accepts the appointment, the parties must comply with the mediator’s instructions;
    3. if the Dispute is not resolved within 21 days of the appointment of a mediator, the mediation ceases;
    4. the parties will be jointly responsible for the fees of the mediation, and each party is to bear its own costs in relation to the mediation;
    5. the mediation will be held in Brisbane, Queensland;
    6. the parties may be legally represented at the mediation; and
    7. the mediation will not be bound by the rules of natural justice and may discuss the Dispute with a party in the absence of any other party and their advisers.
  5. Nothing in this clause prevents a party from seeking urgent interlocutory relief in a court.

14. General

14.1 Amendments

This document may only be amended by written agreement between all parties.

14.2 Governing law and jurisdiction

The laws of Queensland govern this document and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland and courts competent to hear appeals from those courts.

14.3 Assignment

Neither party may assign, in whole or in part any of its rights and obligations under this document without the prior written consent of the other party.

14.4 Severability

A clause or part of a clause of this document that is illegal or unenforceable may be severed from this document and the remaining clauses or parts of the clause of this document continue in force.

14.5 Entire agreement

These Terms supersede all previous agreements about its subject matter. This agreement embodies the entire agreement between the parties.

14.6 Further assurances

Each party must do all things reasonably necessary to give effect to this document and the transactions contemplated by it.

14.7 Costs

Each party bears its own costs in relation to the preparation of these Terms.

14.8 No waiver

  1. The failure of a party to require full or partial performance of a provision of these Terms does not affect the right of that party to require performance subsequently.
  2. A single or partial exercise of or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.
  3. A right under these Terms may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in that waiver.

14.9 Notices

  1. A notice, consent or communication under these Terms must be in writing, signed by or on behalf of the person giving it, addressed to the person to whom it is to be given and delivered by hand, sent by prepaid mail or sent by email to that person's address as specified in the Proposal or as the person notifies the sender.
  2. A notice, consent or communication is given and received:
    1. if it is hand delivered, on the day it is given;
    2. if it is sent by post, three business days after posting (if within Australia) or seven business days after posting (if outside Australia); and
    3. if it is sent by email, that day, if the time of departure from the sender's mail server is before 5.00pm on a business day, or the next business day in any other case, unless the sender receives an automated message generated by the recipient's mail server (other than an 'out of office' message or other response generated by or at the instigation of the recipient) that the email has not been delivered within two hours.

15. Defined terms & interpretation

15.1 Defined terms

In these terms:

  1. Application means the tools or applications developed by Hatch Head which are specified in the Services.
  2. Australian Consumer Law means schedule 2 to the Competition and Consumer Act 2010 (Cth).
  3. Business Day means a day that is not a Saturday, Sunday or public holiday in Brisbane, Queensland.
  4. Client Data means all information provided by the Client for the purposes of providing the Services to be stored, transmitted, processed and/or retrieved by Hatch Head in its performance of the Services.
  5. Commencement Date means the date of acceptance of these Terms.
  6. Confidential Information means any information:
    1. relating to the business and affairs of a party;
    2. relating to the customers, clients, employees, sub-suppliers or other persons doing business with a party;
    3. relating to these Terms or a Proposal;
    4. relating to the Intellectual Property Rights or Source Code of a party;
    5. which is by its nature confidential;
    6. which is designated as confidential by a party; or
    7. which the other party knows or ought to know, is confidential,
    and includes all trade secrets, knowhow, marketing, financial and customer information, forecasts, and strategies and any other commercially valuable information of a party.
  7. Consequential Loss means indirect, economic, special or consequential loss or damage, loss of revenue, time, goodwill, data, anticipated savings, opportunity, loss of production and loss of profit.
  8. Data Protection Legislation means:
    1. the Privacy Act 1988 (Cth) and any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued under it, as amended from time to time;
    2. the Australian Privacy Principles (or APPs) contained in schedule 1 of the Privacy Act referred to in (i); and
    3. all other laws, regulations, registered privacy codes, privacy policies and contractual terms applicable in the jurisdiction where the Services are being provided that relate to the processing of personal information.
  9. Deliverables means the products or services to be delivered to the Client by Hatch Head as set out in a Proposal.
  10. Documentation means any operating manuals, user instruction manuals, technical literature and all other related materials in human-readable or machine-readable forms supplied by Hatch Head as part of the Deliverables.
  11. Fee means the fees for the Services payable by the Client under these Terms and as set out in a Proposal, including the Services Fee and any Additional Services Fee.
  12. Force Majeure Event means an act of God, national emergency, terrorist act, sabotage, flood, storm, earthquake, pandemic, epidemic, fire, explosion, civil disturbance, insurrection, riot, war, industrial action, lockout, rebellion, quarantine, embargo and other similar governmental action or a general and continued energy shortage, power or utilities interruption or failure.
  13. Insolvency Event means any of the following events concerning a party:
    1. if an administrator, liquidator, receiver, receiver and manager or other controller is appointed to, or over, any of the property or undertaking of the party;
    2. if the party is unable to pay its debts when they become due and payable;
    3. if the party ceases to carry on business; or
    4. if any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition
  14. Intellectual Property Rights means all industrial and intellectual property rights throughout the world, whether registered, unregistered or unregistrable, including all copyrights, patents, trademarks, service marks, designs, confidential information, trade secrets, know how, data and databases, systems and domain names.
  15. Services means the services to be provided by Hatch Head as specified in each Proposal or as otherwise agreed between the parties.
  16. Services Fee means the fee set out in a Proposal or if not specified, an amount calculated at Digital Maker’s usual rates and charges to carry out the Services and reviewed annually.
  17. Source Code means software written in a form intelligible to trained programmers and capable of being translated into object code through assembly or compiling for operations on computer equipment.
  18. UAT means User Acceptance Testing.

15.2 Interpretation

In these Terms:

  1. a reference to a clause, schedule, annexure or party is a reference to a clause of, and a schedule, annexure or party to, this document;
  2. a reference to a party to this document or any other document or agreement includes the party's successors, permitted substitutes and permitted assigns;
  3. if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
  4. a reference to a document or agreement (including a reference to these terms) is to that document or agreement as amended, supplemented, varied or replaced;
  5. a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
  6. if any day on or by which a person must do something under this document is not a Business Day, then the person must do it on or by the next Business Day;
  7. a reference to a person includes a corporation, trust, partnership, unincorporated body, government and local authority or agency, or other entity whether or not it comprises a separate legal entity;
  8. a reference to '$' or 'dollar' is to Australian currency; and
  9. the meaning of any general language is not restricted by any accompanying example, and the words 'includes', 'including', 'such as', or 'for example' (or similar phrases) do not limit what else might be included.