Terms of Service ("Terms")Introduction
These Terms govern access to and use of the services provided by Fenixys Ascent. By using our Services, you agree to be bound by these Terms. If you use our Services on behalf of an entity or organization, you are binding that organization to these Terms, and you represent that you have the authority to do so.
1. Definitions and Interpretation
1.1Definitions In these terms and conditions, the following definitions apply unless otherwise stated:
'Business Day' means a day (other than a Saturday, Sunday, or public holiday).
'Contract' means the contract between Fenixys Ascent and the Client for the supply of Services governed by these Terms and the Order.
'Client' means the individual or business entity who purchases Services from Fenixys Ascent and whose details are set out in the Order.
'Force Majeure Event' means an event beyond the reasonable control of either party, including but not limited to strikes, lock-outs, or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation, or direction, accident, breakdown of plant or machinery, fire, flood, storm, or default of suppliers or subcontractors.
'Company' means Fenixys Ascent ABN 62 661 797 325, a sole proprietorship, with its registered office at Level L1, 11-17 Swanson Ct, Belconnen ACT 2617.
'Intellectual Property Rights' means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets), and any other intellectual property rights, whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
'Order' means the order placed by the Client through counter-signing Fenixys Ascent’s Quotation form.
'Order Form' means a Quotation form counter-signed by the Client which, together with these terms and conditions, shall form a binding contract.
'Quotation' means the written quotation prepared by Fenixys Ascent which contains its proposals for providing Services to the Clients.
'Services' means the services Fenixys Ascent will provide to the Client as specified in the Order. 'Specification' means the description or specification of the Services in the Order.
'Terms' means these terms and conditions as updated from time to time by Fenixys Ascent.
'GST' means Goods and Services Tax chargeable under Australian law for the time being and any similar additional tax.
'White Label Work' means Services provided by Fenixys Ascent to a Client who rebrands these services as their own for the benefit of their client.
1.2 Interpretation
Where these Terms use words in their singular form, they shall also be read to include the plural form of the word and vice versa. Where these Conditions use words which denote a particular gender, they shall also be read to include all genders and vice versa.
The headings in this document are inserted for convenience only and shall not affect the construction or interpretation of these Terms. A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted.
A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
2. Terms and Conditions
2.1 Application
These Terms shall apply to all agreements concluded between Fenixys Ascent and the Client to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing.
2.2 Variation
These Terms and the Order may only be varied by express written agreement between Fenixys Ascent and the Client.
3. The Contract
3.1 Offer and Acceptance
The Order constitutes an offer by the Client to purchase the Services in accordance with these Terms. The Client shall ensure that the terms of the Order and any relevant Specification are complete and accurate.The Order shall only be deemed to be accepted when Fenixys Ascent issues a written acceptance of the Order, or when Fenixys Ascent has started to provide the Services having received the Order, whichever happens first, at which point the Contract shall come into existence.
3.2 Entire Agreement
The Contract constitutes the entire agreement between Fenixys Ascent to provide the Services to the Client and for the Client to purchase those Services, in accordance with these Terms.
3.3 Reliance
The Client acknowledges that it has not relied on any statement, promise, or representation made or given by or on behalf of Fenixys Ascent which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by Fenixys Ascent and any descriptions or illustrations contained in Fenixys Ascent’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or any other contract between Fenixys Ascent and the Client for the supply of Services.
3.4 Quotation Validity
A Quotation for the supply of Services given by Fenixys Ascent shall not constitute an offer. A Quotation shall only be valid for a period of 14 Business Days from its date of issue.
3.5 White Label Work
For any White Label Work, the Client understands and agrees that Fenixys Ascent has no contractual relationship and therefore no liability in respect of the ultimate client with whom the Client agrees to perform the White Label Work for.
4. Company Obligations and Warranties
4.1Service Provision
Fenixys Ascent warrants that it will provide the Services as stipulated in the Order using reasonable care and skill to conform in all material respects with the Specification.
4.2 Performance Dates
Fenixys Ascent shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for the provision of the Services. Fenixys Ascent shall not be liable for any delay in delivery of the Services caused by a Force Majeure event or the Client’s failure to provide Fenixys Ascent with adequate delivery instructions, whether physical or online, or any other instructions relevant to the supply of the Services.
4.3 Compliance with Laws
Fenixys Ascent shall have the right to make any changes to the Services which are necessary to comply with any applicable law.
4.4 Subcontracting
Fenixys Ascent shall be entitled to use a Group Company or other subcontractors for the provision of the Services provided always that Fenixys Ascent shall remain liable to the Client for the performance of the Services as if it had carried them out itself.
5. Client's Obligations and Indemnities
5.1 Assistance and Information
The Client shall provide assistance and technical information to Fenixys Ascent, as reasonably required by Fenixys Ascent in sufficient time to facilitate the execution of an Order in accordance with any estimated delivery dates or milestones. The Client shall have sole responsibility for ensuring the accuracy of all information provided to Fenixys Ascent and warrants and undertakes to Fenixys Ascent that the Client’s employees assisting in the execution of an Order have the necessary skills and authority.
5.2 Approval of Materials
The Client shall be obliged as quickly as possible and within the agreed deadline to comment on and/or approve materials provided under the Services, including (without limitation) advertising copy, search terms, and graphic material submitted by Fenixys Ascent. In addition, the Client shall be obliged as quickly as possible and within the agreed deadline to implement changes on websites, in IT systems, or where it may otherwise be required by Fenixys Ascent.
5.3 Notification of Changes
The Client shall be obliged to inform Fenixys Ascent immediately of changes of domain names, websites, technical setup, and any other material information regarding the technical infrastructure which may affect the Services delivered by Fenixys Ascent.
5.4 Failure to Comply
In the event that the Client fails to undertake those acts or provide those materials required within any agreed deadline (and at least within 15 Business Days of the date requested by Fenixys Ascent) Fenixys Ascent shall be entitled to invoice for the Services that it has supplied, and the remaining Services specified in the Order whether or not Fenixys Ascent has been able to deliver them.
5.5 Indemnification
The Client shall indemnify and keep Fenixys Ascent indemnified fully against all liabilities, costs, and expenses whatsoever and howsoever incurred by Fenixys Ascent in respect of any third parties as a result of the provision of the Services in accordance with the Order, Specification, or the content of the Client’s advertising or web pages which result in claims or proceedings against Fenixys Ascent for infringement of any Intellectual Property Rights or other proprietary rights of third parties, or for breach of confidentiality or contract or for defamation.
5.6 Compliance with Laws
The Client undertakes to comply with all applicable rules, regulations, codes of practice, and laws relating to its use of the Services, including without limitation its obligations under the Privacy Act 1988, the Competition and Consumer Act 2010, and the Spam Act 2003 and equivalent legislation and hereby agrees to indemnify and to keep Fenixys Ascent indemnified in respect of any and all costs, claims, or proceedings whatsoever brought against Fenixys Ascent by any third party in connection with any breach of the same by the Client.
5.7 Access for Optimisations
As notified by Fenixys Ascent, in certain cases for amendments to existing optimisations, the Client shall allow Fenixys Ascent use of the site’s FTP or content management system’s username and password in order to gain access to make site changes as Fenixys Ascent sees fit to enhance the performance of the Client’s site.
5.8 Notification of Alterations
Fenixys Ascent requires that prior notice be given for any alterations relating to the Client’s website(s) that may affect the services supplied by Fenixys Ascent. If alterations are made by the Client or a third party to the Client’s site(s), search engine placements may be affected and Fenixys Ascent cannot be held responsible.
5.9 Content Requirements
Fenixys Ascent advises that regular, fresh content added to the site will help to improve the stability of rankings within search engines and the Client understands that regular, unique content plays an important part in the success of a website and failure to add unique content will lessen the impact of SEO (Search Engine Optimisation) services.
5.10 Indemnification for White Label Work
In respect of all White Label Work, the Client shall indemnify Fenixys Ascent against all liabilities, costs, expenses, damages, and losses (including any direct, indirect, or consequential losses, loss of profit, loss of reputation, and all interest, penalties, and legal and other professional costs and expenses) suffered or incurred by Fenixys Ascent arising out of or in connection with the contract between the Client and their client for the White Label Work.
6. Prices
6.1 Currency and Exclusions
Unless otherwise expressly stated, all prices shall be in Australian Dollars (AUD) and shall be exclusive of GST and other duties. In the event that duties are introduced or changed after the conclusion of an Order, Fenixys Ascent shall be entitled to adjust the agreed prices accordingly.
6.2 Third-Party Intellectual Property Rights
The Client acknowledges that certain Services may involve the licensing of third-party Intellectual Property Rights and that the Client may be required to enter into a license directly with such third party. Unless otherwise expressly stated, all prices shall be exclusive of costs for the acquisition of Intellectual Property Rights for materials to be included in marketing materials, including if relevant (but without limitation) pictures and licenses from third-party owners and licensors.
6.3 Price Estimates
The price stated in the Order shall be an estimate based on a qualified estimate of the number of hours required to provide the Services. This is an estimate only and Services shall be invoiced in accordance with the actual work required to undertake the Services requested by the Client. While Fenixys Ascent provides set fees, these relate to work that can be reasonably undertaken within 25 hours per month per service. What constitutes a reasonable amount of work is at the discretion of Fenixys Ascent. Any work deemed excessive may be subject to an additional fee on top of the standard rate. Fenixys Ascent shall be obliged to update the estimate and budgets on an ongoing basis following, among other things, changes made to an Order. PPC prices are set based on the level of budget, and therefore management, the Client has.
6.4 Accuracy of Estimates
While every effort is made to ensure that costing estimates are accurate, Fenixys Ascent reserves the right to amend any estimate, should an error or omission have been made.
7. Payment
7.1 Invoicing
Fenixys Ascent shall invoice the Client monthly, at the beginning of each working month.
7.2 Payment Terms and Methods
The Client shall pay each invoice submitted by Fenixys Ascent within 30 Days of the date of the invoice, with the exception of invoices relating to clause 7.4. All payments are to be made in cleared funds via EFTPOS, credit/debit card, online payment, cash, or direct debit. The invoice number shall be stated on all payments.
All payments for invoices will be processed through Stripe. Stripe's processing fees for Australian cards are 2.15% + AUD $0.30 per transaction, and for international cards, 3.35% + AUD $0.30 per transaction, with an additional 2% if currency conversion is required. Any fees or charges incurred by Stripe for processing payments will be the responsibility of the Client.
For payments unable to be made online or via invoice, alternative payment methods may be considered at the discretion of Fenixys Ascent.
7.3 Media Spend Payments
In the case where Fenixys Ascent is to pay for a client’s media spend with a third party (such as Google, Facebook, or LinkedIn), payment is to be received within 7 days of the date of the invoice.
7.4 Full Payment Without Deduction
The Client shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off, or counterclaim against Fenixys Ascent in order to justify withholding payment of any such amount in whole or in part. Fenixys Ascent may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by Fenixys Ascent to the Client.
7.5 Late Payment
In the event of overdue payment, interest shall accrue on the invoice amount at the statutory rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998 or at the rate of 2 percent over the base rate of Westpac Australia (whichever is higher). At Fenixys Ascent’s discretion, a fee of AUD $10 (to cover administrative expenses and not as a penalty) shall be charged per reminder for overdue payment submitted to the Client. Fenixys Ascent shall be entitled to submit such reminders on a weekly basis once the fees have become overdue. Fenixys Ascent expressly reserves all rights at all times to bring any legal action it considers appropriate to recover any unpaid sums.
7.6 Material Breach
Late payment shall be considered as constituting a material breach of the Contract entitling Fenixys Ascent (at its discretion) to cancel the Contract or to affirm the Contract and assert the usual remedies for breach.
7.7 Failure to Assist
In the event that the Services cannot be delivered either in full or in part due to the Client’s failure to assist or delay in assisting in the execution of the Order, Fenixys Ascent shall be entitled to charge the Client an estimated amount, corresponding to the amount that would have been due had the Services been rendered in accordance with the Order. Fenixys Ascent shall be entitled to payment on the basis of Fenixys Ascent’s price list applicable from time to time for any additional work required because of the Client’s failure to assist or delay in assisting.
7.8 Priority Work
If the Client subsequently requires Fenixys Ascent to complete the work within a shorter time frame than specified in the Order, Fenixys Ascent reserves the right to charge additional monies to prioritize such projects ahead of pre-planned work.
8. Delays and Complaints
8.1 Remedy for Delays
In the event that the Client proves that the Services are delayed or not in accordance with the Contract, Fenixys Ascent shall be obliged to remedy or redeliver, at its own discretion, without undue delay. In the event that the Services continue to be not in accordance with the Contract after reasonable attempts have been made to remedy this, the Client shall be entitled to cancel the Order in accordance with clause 13.2(a), provided that the breach is material.
8.2 Complaints Procedure
Complaints concerning delays or breach of Contract shall be submitted immediately after the time when the Client became or should have become aware of the matter. If the Client fails to bring the defect (unless by its very nature it is impossible to ascertain within such a period) to the attention of Fenixys Ascent within 48 hours, the Client shall be deemed to have accepted the Services and shall not be entitled to assert remedies based on delays or breach of Contract.
8.3 Third-Party Services
The Client hereby acknowledges that certain Services rely upon goods and/or services being provided by third parties (‘Third Party Services’). The Client acknowledges that the Third-Party Services will be governed by that third party’s terms and conditions and that Fenixys Ascent cannot provide any warranties in respect of the Third Party’s Services and will not be liable to the Client for any delays and/or failings in respect of the same. Providers of Third-Party Services may provide their own warranties to the Client and the Client must satisfy itself whether or not such warranties (where given) are acceptable for the Client’s business purposes or risk management policies.
8.4 Responsibility for Third-Party Services
Fenixys Ascent’s only responsibility in respect of the Third-Party Services is to take reasonable care and skill when selecting the providers of the same.
8.5 Exclusive Remedies
The Client’s exclusive remedies for late delivery or Services not conforming with the Contract are as specified in this clause 8 and, if the remedies set out in these Terms have been exhausted, the Client’s final remedy is limited to cancellation of the Contract and Fenixys Ascent’s sole liability is to refund any payments for Services not conforming with the Contract, subject to the limitations set out in clause 9 below.
9. Liability
9.1 Exclusion of Liability
Except as expressly stated in this Clause 9, Fenixys Ascent shall have no liability to the Client for any loss or damage whatsoever arising from or in connection with the provision of the Services or for any claim made against the Client by any third party.
9.2 Categories of Losses
Without prejudice to the generality of Clause 9.1 above, Fenixys Ascent shall have no liability for any losses or damages which may be suffered by the Client whether the same are suffered directly or indirectly or are immediate or consequential which fall into the following categories:
Any indirect or consequential loss arising under or in relation to the Contract even though Fenixys Ascent was aware of the circumstances in which such loss could arise;
Loss of profits; loss of anticipated savings; loss of business opportunity or goodwill;
Loss of data; and
Fraudulent clicks on any of the Client’s accounts managed by Fenixys Ascent.
9.3 Total Liability Cap
To the extent such liability is not excluded by sub-clauses 9.1, 9.2 and clause 10 below, Fenixys Ascent’s total liability (whether in contract, tort (including negligence or otherwise)) under or in connection with the Contract or based on any claim for indemnity or contribution (including for damage to tangible property) or otherwise will not in any event exceed the total sum invoiced for the Services.
10. Other Limitations of Liability
10.1 External Interferences
Fenixys Ascent shall not be liable for downtimes, interference in the form of hacking, virus, disruptions, interruptions, faulty third-party software, search engines, or websites on which a service is dependent or other deliveries from a third party. Fenixys Ascent shall use its reasonable efforts to assist in remedial efforts if so requested by the Client. Any work connected with remedial efforts as described above shall be charged to the Client separately in accordance with these Terms or (at Fenixys Ascent’s discretion) Fenixys Ascent’s price list applicable from time to time.
10.2 Unauthorized Changes
Fenixys Ascent shall not be liable for any changes made without notice by the Client or a third party employed by the Client to domain names, websites, links, technical setup, etc. and affecting the Services delivered by Fenixys Ascent. Preceding or subsequent work connected with any adjustments required as a result of such changes shall be charged to the Client in accordance with these Terms or on the basis of Fenixys Ascent’s price list applicable from time to time at Fenixys Ascent’s discretion.
10.3 Search Engine Guidelines
Fenixys Ascent shall use all reasonable endeavours to deliver Services relating to search engine optimisation, links, advertisements, banners, pay per click and Google analytics in accordance with the guidelines applicable to the relevant search engines. However, Fenixys Ascent shall not be liable for delayed or non-conforming performance due to changes made to standard terms, assessment algorithms, search criteria, viewing policy, prices, and campaign offers or other matters beyond Fenixys Ascent’s control and reserves the right to make changes to Services as a result of the same. In addition, Fenixys Ascent shall not be liable for other changes or discontinuation of search engines.
10.4 Service Performance
Fenixys Ascent shall not be liable for Services relating to search engine optimisation, link building, advertisements, banners or sponsorships leading to a minimum number of views, position, or frequency in searches on relevant words or otherwise. In addition, Fenixys Ascent shall not be liable for ensuring that such Services lead to a certain volume of traffic, number of clicks, registrations, purchases, or the like.
10.5 Loss of Business or Reputation
Fenixys Ascent shall not be responsible for any loss of business or reputation as the result of an advertising campaign or Press Release submitted by Fenixys Ascent on behalf of the Client.
10.6 Search Engine Exclusions
Fenixys Ascent shall not be responsible for URLs dropped or excluded by a search engine for any reason.
10.7 Client Recommendations
If the Client does not implement some or all of Fenixys Ascent’s recommendations, Fenixys Ascent shall not bear any liability for any lack of success experienced by the Client relating to the Services.
11. Intellectual Property Rights
11.1 Client's Responsibility
It is the responsibility of the Client to ensure that they have the right to use any Intellectual Property Rights when they provide any text, image, or representation (“Materials”) to Fenixys Ascent for incorporation into the Services and the Client hereby grants or agrees to procure the grant of (as applicable) an irrevocable licence to Fenixys Ascent to use such Materials for the purposes of providing the Services for the duration of the Contract.
11.2 Compliance with Legislation
The Client shall be responsible for ensuring that the contents of Materials which the Client has contributed or approved are not in contravention of legislation, decency, marketing rules, or any other third-party rights. Fenixys Ascent shall be entitled to reject and delete such material without incurring any liability. In addition, Fenixys Ascent shall be entitled to cancel the Order.
11.3 Indemnification
The Client shall indemnify Fenixys Ascent against all damages, losses, and expenses suffered or incurred by Fenixys Ascent as a result of the Materials which the Client has contributed or approved being in contravention of legislation, decency, marketing rules, or any action that any such Materials infringe any Intellectual Property Rights of a third party.
11.4 Notification of Claims
The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described above.
11.5 Ownership of Intellectual Property
Unless expressly stated otherwise in these Terms or in an Order, the Intellectual Property Rights created, developed, subsisting, or used in connection with the Services and whether in existence at the date hereof or created in the future shall vest in and be the property of Fenixys Ascent or the relevant third party from whom Fenixys Ascent has acquired a right of use with a view to executing the Order. The Client agrees to execute and deliver such documents and perform such acts as may be necessary from time to time to ensure such Intellectual Property Rights vest in Fenixys Ascent.
11.6 Usage of Intellectual Property
The Intellectual Property Rights as mentioned in Clause 11.5 shall not be used, assigned, distributed, copied, forwarded to online or offline activities by the Client without a separate, express written agreement.
11.7 License to Use Software and Services
If Fenixys Ascent makes software, scripts, ASP services, etc. available to the Client as part of the execution of an Order, the Client shall only acquire a non-exclusive personal non-transferable license to use such material until the Services under this agreement cease.
11.8 Reference Usage
The Client hereby irrevocably licenses Fenixys Ascent to use and display the Client’s name, figure, logo, etc. as a reference on Fenixys Ascent’s website, other marketing materials, or types of media whilst they are a Client of Fenixys Ascent and for 18 months after the Contract terminates. The Client agrees to send Fenixys Ascent its most recent logo or figure as and when it is amended from time to time.
12. Confidentiality and Personal Data
12.1 Confidential Information
A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes, or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents, or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents, or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents, or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause shall survive termination of the Contract.
12.2 Company Confidentiality Care
During the term of the Contract and for a period ending 5 years from the date of its conclusion, Fenixys Ascent shall take the same care as it uses with its own confidential information, to avoid, without the Client’s consent, the disclosure to any third party (except a subcontractor working on the Services who is subject to similar undertakings of confidentiality) of any of the Client’s business or operational information which the Client has designated as confidential.
12.3 Exceptions to Confidentiality
The obligation in Clause 12.2 shall not apply to any information which is or becomes publicly available otherwise than through a breach of this agreement, is already or rightly comes into Fenixys Ascent’s possession without an accompanying obligation of confidence, is independently developed by Fenixys Ascent, or which Fenixys Ascent is required to disclose by law.
12.4 Client Confidentiality Obligation
During the term of the Contract and for a period ending 5 years from termination thereof, the Client will not disclose to any persons within its organisation that do not have a need to know, or to any third party, any information and non-Client materials provided by Fenixys Ascent concerning the method or approach Fenixys Ascent uses in providing the Services.
12.5 Data Protection Compliance
Each party agrees to comply with its respective obligations under the Privacy Act 1988 and any other applicable data protection legislation.
12.6 Client Indemnification for Data Processing
The Client shall be obliged to indemnify Fenixys Ascent for any loss, including costs incidental to legal proceedings, suffered by Fenixys Ascent as a result of the processing of personal data which the Client has contributed being in contravention of the Privacy Act 1988 or marketing law. The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described in the present clause.
13. Term, Termination, and Assignment
13.1 Contract Length
The Contract length is set out at the beginning of the term and can vary. Minimum terms apply and are at the discretion of Fenixys Ascent.
13.2 Renewal
The Contract shall renew automatically for a further term equal to the previous term unless and until either party notifies the other of its wish to terminate the Contract at the expiry of the current year by giving the other party at least 30 days’ written notice to expire at the end of that Contract term.
13.3 Termination for Breach or Insolvency
Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if the other party:
Commits a material breach of the Contract and (if such breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
Becomes or is insolvent or is unable to pay its debts (within the meaning of the Corporations Act 2001) or (except for the purposes of a genuine amalgamation or reconstruction) a petition is presented or meeting convened or resolution passed for winding up the defaulting party or the defaulting party enters into liquidation whether compulsorily or voluntarily or compounds with its creditors generally or has a receiver, administrator, or administrative receiver appointed over all or any part of its assets or the defaulting party ceases to carry on all or a substantial part of its business.
13.4 Termination for Non-Payment
Fenixys Ascent shall, in addition to all other rights and remedies under these Terms, be entitled to terminate this Contract without notice in the event that any of its charges for the Services are not paid in accordance with these Terms.
13.5 Return of Materials
Upon termination, for whatever reason, the parties shall be obliged to return all materials received from the other pursuant to the Contract without undue delay. If relevant, the Client shall be obliged to remove codes, etc., from websites without undue delay. If the Client fails to do so, Fenixys Ascent shall be entitled to invoice the Client in line with its then current terms and conditions for subsequent Services without such invoicing amounting to a waiver of Fenixys Ascent’s right to terminate the Contract.
13.6 Assignment by Client
The Client shall not be permitted to assign or transfer all or any part of its rights or obligations under the Contract and these Terms without the prior written consent of Fenixys Ascent.
13.7 Assignment by Fenixys Ascent
Fenixys Ascent shall be entitled to assign or subcontract any of its rights or obligations under the Contract and these Terms and the Client acknowledges that certain elements of the Services will be provided by third parties.
14. Force Majeure
14.1 No Liability for Force Majeure
Neither party shall be held liable for a Force Majeure Event.
14.2 Notification
If a party believes that a Force Majeure Event has occurred, such party shall immediately inform the other party of the start and end of the Force Majeure Event.
14.3 Termination for Prolonged Force Majeure
Notwithstanding the other provisions of the present Terms, each party shall be entitled to terminate the Contract without liability to the other by written notice to the other party in the event that the performance of the Contract is impeded for more than 6 months due to a Force Majeure Event.
15. Miscellaneous
15.1 Modification or Discontinuance of Services
Fenixys Ascent reserves the right to modify or discontinue, temporarily or permanently, the Services with or without notice to the Client and Fenixys Ascent shall not be liable to the Client or any third party for any modification to or discontinuance of these Services save for the return of any prepaid sums in connection with the provision of the Services which are subsequently not provided.
15.2 Provision of Services to Third Parties
Fenixys Ascent shall be free to provide its Services to third parties whether during or following the provision of the Services to the Client.
15.3 Non-Solicitation
During the term of the Contract and for a period of 12 months thereafter, the Client agrees not to employ or engage or offer to employ or engage anyone designated by Fenixys Ascent to work on the Services.
15.4 Waiver
The failure of either party to enforce or to exercise at any time or for any period of time any right pursuant to these Terms does not constitute, and shall not be construed as, a waiver of such terms or rights and shall in no way affect that party’s right later to enforce or to exercise it.
15.5 Severability
If any term of these Terms is found illegal, invalid, or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining Terms, be deemed omitted from these Terms and shall in no way affect the legality, validity, or enforceability of the remaining Terms which shall continue in full force and effect and be binding on the parties to the Contract.
15.6 Variation
Any valid alteration to or variation of these Terms must be in writing signed on behalf of each of the parties by duly authorised officers.
15.7 Third Party Rights
A person who is not a party to the Contract shall not have any rights under or in connection with it.
15.8 Notices
All notices must be in writing to Fenixys Ascent at Level L1, 11-17 Swanson Ct, Belconnen ACT 2617., or such address as is advised by Fenixys Ascent.
16. Entire Agreement
16.1 Superseding Prior Agreements
The parties acknowledge and agree that the Contract supersedes any prior agreement, understanding, or arrangement between the parties, whether made orally or in writing, and constitutes the entire agreement between Fenixys Ascent and the Client relating to these Services. Therefore, except as expressly provided, all other conditions and warranties (implied, statutory, or otherwise) are hereby excluded to the fullest extent permitted by law.
17. Law and Jurisdiction
17.1 Dispute Resolution
Fenixys Ascent and the Client shall be obliged to attempt to settle any disputes arising between them, including disputes relating to the existence or validity of the Contract through negotiation, provided always that either party shall be entitled at all times to exercise any of its other remedies including through taking legal action.
17.2 Governing Law
The Contract shall be governed by and construed in accordance with the laws of Australia.
17.3 Jurisdiction
The parties hereby agree to submit to the non-exclusive jurisdiction of the courts of the Australian Capital Territory.
18. Intellectual Property and Copyright
18.1 Ownership
All content included on the Fenixys Ascent website and any associated documentation, including but not limited to text, graphics, logos, images, and software, is the property of Fenixys Ascent
or its content suppliers and protected by international copyright laws, including the Copyright Act 1968 (Cth) of Australia.
18.2 Use of Content
The content on this website, including these Terms and Conditions, may not be copied, reproduced, distributed, transmitted, displayed, performed, or otherwise used in any form or by any means without the prior written permission of Fenixys Ascent, except as allowed under applicable law.
18.3 Limited License
Fenixys Ascent grants you a limited, revocable, and non-exclusive license to access and make personal use of this website and its content. This license does not include any resale or commercial use of this site or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of this site or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools.
18.4 Compliance with Australian Law
Fenixys Ascent operates in compliance with Australian laws and regulations, including the Copyright Act 1968 (Cth). By using this website, you agree to abide by all
applicable Australian laws and regulations regarding the use of intellectual property and copyright.
Complete Terms and Conditions
By using this website, you agree to be bound by these Terms and Conditions, Privacy Policy and any additional guidelines, restrictions, or rules that may be posted in connection with specific sections or services of this website.
