TERMS AND CONDITIONS OF PURCHASE
These terms apply to all Services provided by Upstream Communication Pty Ltd (ACN 661 994 083) trading as Upstream Communication., unless otherwise clearly agreed in writing by us and you.
Any orders received by us from you for the supply of Services shall constitute acknowledgement by you that you have received, understood and agree to these Terms and will be bound by them.
Please read these Terms carefully.
1. Definitions
The Parties
The terms ‘Upstream Communication’, ‘us’, ‘our’ or ‘we’ refer to Upstream Communication Pty Ltd (ACN 661 994 083) trading as Upstream Communication.
The terms ‘you’ or ‘your’ refer to you, our customer.
This is a contract between us and you.
Other Terms with Special Meanings
‘Australian Consumer Law’ means the Australian Consumer Law under the Competition and Consumer Act 2009 (Cth).
‘Due Date’ means the date by which you must make payment for the Services as defined in clause 5.2.
'Force Majeure Event' means any event of whatsoever nature outside your or our reasonable control including but not limited to flood, fire, theft, storm, tempest, power failure, machinery breakdown, act of God, war, act of terrorism, strike, lock-out and shortage of labour.
‘GST’ means GST under the GST Act.
‘GST Act’ means the A New Tax System (Goods and Services Tax) Act 1999 (as amended).
‘Order’ means the Order placed by you with us for the Services.
‘Price’ means the amount stated in the Quotation and includes any applicable GST.
‘Products’ means any goods of any nature provided to you as part of the Services.
'Quotation’ means the price advertised by us on our website, or otherwise advised by us in writing, to provide the Services.
‘Services’ means the provision of communication advice and training, whether delivered online or in person and includes any events hosted by Upstream Communication.
2. Contract
3.1 A Quotation is an invitation to you to place an Order with us for the Services.
3.2 If you place an Order with us then your Order and the provision of the Services ordered is subject to these terms.
3.3 When you purchase audio, video or written content from us, or same is provided to you as part of the Services you have ordered, we grant you a licence (which is limited, revocable, non-exclusive and non-transferable) to listen to, read, download or stream the contents to your computer and/or other device(s) solely for your personal, non-commercial use. You agree to not otherwise copy, reproduce, distribute or use the content other than as set out in this contract. You must not sell, transfer, assign, lease, license, modify, distribute or publicly perform the content in any manner and you must not exploit it commercially. You must not tamper with the content or create any derivative works from the content. You agree that we retain all right, title and interest, including all intellectual property rights, in and to the content.
3.4 If you breach this contract we may terminate your license to use the content, terminate provision of the Services and/ or cancel any other outstanding Orders.
3.5 If we terminate your license to use the content, you must immediately delete every copy of any content that you have downloaded as well as copies you have placed or saved on other devices.
4. Our conditions prevail
4.1 The terms and conditions governing the relationship between us and you for any Services provided by us are set out in full in this contract. This contract applies to all dealings between us and you, including all present and future dealings, unless otherwise agreed in writing.
4.2 No terms or conditions sought to be imposed by you on us apply unless agreed in writing by us.
4.3 These terms apply and prevail even if they are inconsistent with anything said or implied in any earlier document provided to you.
4.4 You agree that you have not relied upon any representation, warranty or other provision made by us or on our behalf which is not expressly stated in this contract. All rights and conditions implied by law as they relate to us are excluded unless contained in this contract. This applies unless the rights, terms and conditions cannot be excluded.
5. Price and payment
5.1 Unless otherwise expressly stated in the Quotation, all Prices are in Australian dollars.
5.2 You must pay the Price in one instalment at the time of ordering the Service, or, if you do not order the Service online, within seven (7) days of receiving an invoice from us for the Price.
5.3 All payments must be by cash, credit card, bank cheque or EFTPOS.
5.4 You authorise us to complete any documents necessary to enable you to make any payments through any credit card system.
6. Overdue payments
6.1 If any amount you owe us is not paid by the Due Date then:
(a) All money that you owe us on any account becomes immediately payable.
(b) We may terminate any license given to you to use our content, terminate provision of the Services and/ or cancel any outstanding Orders.
(c) We may charge you interest on any outstanding amount from the Due Date until payment, calculated daily, at the rate prescribed from time to time pursuant to Rule 36.7 Uniform Civil Procedure Rules 2005 (NSW). If we charge interest under this clause, we will credit any part payment firstly against the interest and secondly against the amount outstanding.
(d) You agree you are liable for all our costs, losses and expenses relating to recovering overdue payments and interest on same from you, including mercantile agents' and lawyers' fees and expenses on a full indemnity basis.
7. Limitation of liability and indemnity
7.1 Nothing in this contract is intended or should be interpreted as an attempt to modify, limit or exclude terms or warranties which are imposed by statute and which cannot be modified, limited or excluded.
7.2 When you acquire goods or services from us, Part 3-2, Division 1 of the Australian Consumer Law implies a number of guarantees that cannot be excluded. Subject to the Australian Consumer Law, to the full extent permitted by law:
(a) We are not liable for any economic loss, loss of revenue, loss of saving on overheads, loss arising from business interruption, loss of data, loss of business opportunities, loss of goodwill, loss of profits or any indirect, incidental, special and/ or consequential loss or damage whatsoever which result from any use of or access to, or any inability to use or access, the Services you purchase from us. To avoid doubt, this limitation of liability extends to the provision of negligent or misleading advice; and
(b) We exclude all guarantees, conditions, warranties and terms implied by statute, general law or custom.
7.3 We are not responsible for any loss caused by an error or defect in the Products or Services.
7.4 (a) If we are wholly or partially prevented from performing the Services by a Force Majeure Event, then our obligation to perform the Services will be suspended for the duration of the Force Majeure Event.
(b) If the Force Majeure Event (and consequential inability to perform Services) continues for a period longer than fourteen (14) days from its initial occurrence, then either you or we may terminate the Order by written notice to the other. Any termination will not prejudice any rights or obligations either you or we may have accrued prior to such termination.
7.5 Each party must each use reasonable efforts to mitigate any potential damages or other adverse consequences arising from or related to the Services.
7.6 To the extent permitted by law, our maximum aggregate liability to you in respect of any one claim or series of connected claims relating to the Services or Products, including for breach of contract, breach of statutory duty, breach of warranty, delay, breach of a term, condition or warranty implied into this contract by the Australian Consumer Law or liability under an indemnity is limited at our option (to the extent permitted by law) to:
(a) Replacing the Products or supplying equivalent Products; or
(b) Repairing the Products; or
(c) Paying to have the Products replaced with equivalent Products; or
(d) Paying to have the Products repaired; or
(e) Supplying the Services again; or
(f) Paying to have the Services supplied again.
8. Director's guarantee
8.1 This clause applies if you are a corporation.
8.2 For the purposes of this clause, ‘Guarantor’ means any person who has signed this Contract on your behalf. This contract must be signed by either two (2) of your Directors or one (1) of your Directors and your Company Secretary (unless you only have a sole Director/ Company Secretary).
8.3 In consideration of us providing the Services at your request and the request of the Guarantor, the Guarantor unconditionally and irrevocably guarantees to us:
(a) The payment of all money payable by you for the Services; and
(b) The performance of all other obligations of you under this contract.
8.4 The Guarantor:
(a) Indemnifies us against any claim, action, loss, damage, cost, liability, expense or payment incurred by us in connection with or arising from any breach or default or attempted breach or default by you of your obligations under this contract; and
(b) Must pay on demand any money due to us under this indemnity.
8.5 If there is more than one Guarantor, the obligations and indemnities provided by the Guarantor under this clause apply jointly and severally to each and every Guarantor.
9. Refunds
9.1 Refunds will only be given at our absolute discretion and in extenuating circumstances.
9.2 Any request for a refund must be made in writing to us no later than seven (7) days after the date that we commenced providing the Services to you and must provide an explanation of the extenuating circumstances.
9.3 No refunds will be given if we have already provided the Services to you in full.
9.4 If you receive a refund, you must delete every copy of any Products that you have downloaded as well as copies you have placed or saved on other devices.
9.5 If you are entitled to a refund under the Australian Consumer Law, we will refund the Price to you within two (2) weeks’ of receiving written notification of your entitlement to a refund.
9.6 If you are required to return any goods, you are liable for the cost, if any, of returning the goods.
9.7 Your refund will be paid in the currency in which it was received by us. If you paid in a currency other than Australian dollars, you are liable for the costs of exchange.
10. Privacy
10.1 You agree to our privacy policy available at http://www.upstreamcommunication.com.au/legalnotices
11. Trademarks
11.1 Trademarks used in the provision of the Services or Products belong to their respective owners. You must not use any trade mark displayed in the provision of any Services or on any Products without the express written permission of us or the third-party owner.
12. Communications with us
12.1 We encourage you to email us however we do not want you to, and you should not, email us any content that contains confidential information. With respect to all emails and communications you send to us including, but not limited to, feedback, questions, comments and suggestions, we shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.
13. Events
13.1 Cancellation: Tickets are non-refundable but completely transferable. If you require your ticket to be transferred to someone else, please email their full name and email address to julia@upstreamcommunication.com.au no less than 3 working days prior to the event.
13.2 Changes to event: We reserve the right to change the event at any time, including the location of the event. Although unlikely, if this should happen every effort will be made to ensure an event of an equivalent standard and within in a reasonable distance from the original location.
13.3 Behaviour: We reserve the right to prohibit entry or eject any person from an event based on behaviour deemed inappropriate by us, our staff and/or agents and others working under our authority.
13.4 Image Release: You grant permission to us, our agents and others working under our authority to take and to have full and free use of video and/ or photographs containing your image/likeness. You understand these images may be used for promotional, news, online/multimedia, research and/or educational purposes by and for us. You agree that you are not entitled to remuneration, residuals, royalties or any other payment in respect of your image/likeness or its use. You release, discharge, and hold harmless. Upstream Communication and its agents from any and all claims, demands or causes of actions that you may have otherwise had by reason of anything contained in the photographs or video. If you do not agree to the above image release, you must advise us by email at julia@upstreamcommunication.com.au as soon as possible after booking your ticket and, in any case, prior to commencement of the event.
14. Miscellaneous
14.1 These conditions contain the entire agreement between you and us with respect to the supply of the Services and may not be modified except by an agreement in writing signed by us.
14.2 The law of New South Wales governs these conditions. Each party submits to the non-exclusive jurisdiction of the New South Wales courts.
14.3 Nothing in these conditions will create a partnership, or the relationship of employer and employee, between the parties.
14.4 If a provision of these conditions is found to be unlawful, invalid or unenforceable for any reason, these conditions will remain in force apart from that provision, which is deemed to be deleted.
14.5(a) No failure or delay by us in exercising any right, power or privilege under this contract will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege;
(b) The rights and remedies provided in this contract are cumulative and not exclusive of any rights and remedies provided by law.
14.6 If this contract is completed in the name of a partnership, the partners of that business at any one time are jointly and severally liable to us for any outstanding account. This will be so notwithstanding any agreement, compromise or arrangement with one or more of the partners.
Last update: 19 September 2023