Terms & Conditions

1.0 Background
1.1 The Client wishes to purchase a Digital Product from the Company.

1.2 The Company agrees to provide access to the Digital Product to the Client in accordance with these terms and conditions.

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2.0 Defined terms

2.1 Affiliate means:

2.1.1 a Related Body Corporate of the party; or

2.1.2 an entity (including a natural person) which the party controls (within the meaning of section 50AA of the Corporations Act).

2.2 Business Day means a day that is not a Saturday, Sunday or public holiday in Brisbane, Queensland.

2.3 Client means the entity (including a natural person) as set out in the Product Sale Agreement that is the recipient of the Product provided by the Company.

2.4 Effective Date means the date on which the Product Sale Agreement is signed by the parties, or if signed on separate days, the date of the last signature.

2.5 Company means de Freece Pty Ltd trading as Simutech Solutions, ABN 13 662 558 429.

2.6 Planned Delivery Date means the nominal date planned for delivery of the product as set out in the associated Product Sale Agreement.

2.7 Confidential Information means all information, ideas, concepts, data, know-how and trade secrets (whether or not in a material form) regarding the Client, the Company, the Group or any of its businesses, products or services, which is disclosed to the other Party, or which is otherwise made known to the other Party, or is generated by the Company in the course of the Company’s engagement with the Client, except where that information is or comes into the public domain otherwise than through the Contractor’s breach of the terms set out herein.

2.8 Contract Materials means all materials, created, made or discovered by the Company (either alone or with others):

2.8.1 in the course of the Company’s engagement with the Client; or

2.8.2 as a result of using the resources (including the Confidential Information and Intellectual Property Rights) of the Company.

2.9 Corporations Act means the Corporations Act 2001 (Cth).

2.10 Group means means the Company and its Related Bodies Corporate.

2.11 Intellectual Property Rights means all present and future intellectual or industrial property rights anywhere in the world, including without limitation any copyright, moral right, patent, trade mark, registered design, registered or unregistered plant breeder’s right, trade secret, knowhow, right in relation to semi-conductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right or right of registration of such rights.

2.12 Materials means any methodologies, ideas, processes, documents, software, reports, diagrams, concepts, techniques, know-how and any other material created, developed, modified or adapted by the Client during the course of the performance of the Services or in connection with its engagement with the Company.

2.13 Not Used.

2.14 Not Used.

2.15 Related Body Corporate has the meaning given to that term by section 9 Corporations Act.

2.16 Product Fee means the fee payable for the Product as set out within the Product Sale Agreement and these Product Terms And Conditions and is subject to GST in Australia.

2.17 Product means product as specified within and referred to in the Product Sale Agreement.

2.18 Product Sale Agreement means the document outlining the details of the Product as agreed between the Parties.

2.19 Product Terms And Conditions means these terms as amended from time to time, available at https://www.simutech.com.au/terms-and-conditions

2.20 Tax means means a tax, levy, duty, charge, deduction or withholding (including GST and/or VAT), however it is described, that is imposed by law or by a government agency, together with any related interest, penalty, fine or other charge.

2.21 Term means the period commencing on Effective Date and ending on the Client's Acceptance of the Product, or the Termination Date, or if no Termination Date is stated, on termination of the Service Agreement.

2.22 Termination Date means the date the Service Agreement is terminated in accordance with the termination provisions in clause 10 of these terms.

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3.0 Interpretation
3.1 In these terms:
3.1.1 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 and references to this document include any schedules or annexures;
3.1.2 a reference to a party to this document or any other document or agreement includes the party’s successors, permitted substitutes and permitted assigns;
3.1.3 if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
3.1.4 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;
3.1.5 a reference to these terms includes the agreement recorded by the associated Product Sale Agreement;
3.1.6 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;
3.1.7 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;
3.1.8 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;
3.1.9 unless otherwise stated, a reference to ‘$’ or ‘dollar’ is to Australian currency; and
3.1.10 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.

 

4.0 Fees & Payment Processing
4.1 In consideration for access to the Digital Product provided by Company, the Client agrees to compensate Company the Product Fee indicated on the online shopping cart.

4.2 If any payment methods are declined by the online payment processor, the Client shall provide a new eligible payment method before receiving access to the Digital Product.

4.3 In the event the Client has already been given access to the Digital Product and a payment method is declined, the Company reserves the right to collect any and all outstanding receivables.

 

5.0 Refund Policy
5.1 Due to the nature of digital products being immediately accessible upon purchasing, no refunds of any fees or other amounts paid by Client in connection with the Digital Product will be allowed under any circumstances.

 

6.0 Product
6.1 The Company provides access to the Digital Product to the Client in accordance with these Product Terms And Conditions.
6.2 In the provision of Digital Products by the Company, the Client will make all reasonable endeavours to support the Company to ensure the Company’s ability to deliver the Digital Products to the Client is unhindered and effective.

6.3 If the Company collects personal or private information of the Client in order to deliver the Digital Product, the Company will treat such information in accordance with the Company's Privacy Policy.

6.4 After purchasing the Digital Product, the Client will be given access to the product materials in within [48 hours] through a link delivered via their provided email. The Client will have lifetime access to the materials so long as the product(s) is/are available.
6.5 Upon purchase, the Company grants to Client one (1) non-exclusive, non-sublicensable, revocable, non-transferable and perpetual licence to use the Digital Product. The Client understands and agrees that the Digital Product materials may not be shared with any third party. In the event Company suspects that the Digital Product is being shared with another party, Company reserves the right to immediately terminate Client’s access to the Digital Product.

6.6 The Client may use the Digital Product for his/her own personal use and business use.

 

7.0 Termination
7.1 The Company may terminate or suspend Client access to Digital Products immediately, without prior notice or liability, for any reason whatsoever, including without limitation if the Client breaches these Product Terms And Conditions.

7.2 Upon termination, the Client's right to use the Digital Products will cease immediately.

 

8.0 Confidentiality
8.1 The parties acknowledge that all Confidential Information which has or may come into the possession of the other party remains the property of the originating party.
8.2 The parties acknowledge and agree that each party may be afforded access to, and acquire knowledge of the Confidential Information of the other party, and each party must:
8.2.1 only use the Confidential Information with the purpose of supporting the provision of the Services or otherwise with the prior written consent of the other party;
8.2.2 not disclose to others, independently use, or copy any such Confidential Information in any form or in any manner except for the purpose of and to the extent necessary to support the provision of the Services; and
8.2.3 use 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.
8.3 This confidentiality obligation is binding, has worldwide effect and will continue indefinitely, subject to:
8.3.1 the Confidential Information being in the public domain (except as a result of failure to comply with the obligation in this clause);
8.3.2 the Confidential Information being required by law to be disclosed by the party; or
8.3.3 the Confidential Information being known and proven to have been known to the party prior to its disclosure to the other party.
8.4 The party must immediately notify the other party if the party:
8.4.1 becomes aware of any breach of the obligations in this clause or any other unauthorised access, disclosure or copying of Confidential Information by a third party; or
8.4.2 is lawfully obliged to disclose any Confidential Information to a third party, in which case the Contractor must comply with the Company’s lawful directions in relation to the disclosure.
8.5 Each party’s obligations under this clause continue after the Company ceases to provide access to the Digital Product to the Client.
8.6 Both parties are entitled to retain one copy of any information (including any Confidential Information) for record keeping purposes.

 

9.0 Intellectual property
9.1 For Material produced by the Company, delivered as Digital Products to the Client, the Company:
9.1.1 will own all rights, including Intellectual Property Rights, in and to the Materials produced, regardless of whether the rights arise during or after the Client has access to the Digital Product.
9.1.2 grants the Client a non-exclusive, non-sublicensable, revocable, non-transferable and perpetual licence to use any Materials produced as part of Digital Products for any purpose in connection with the activities of the Client.
9.2 The Client warrants to the best of the Client’s knowledge and belief after making all reasonable enquiries, that the use by the Company of any Materials provided by the Client in the course of the use of the Digital Products will not infringe any Intellectual Property Rights of any person nor give rise to any liability to make royalty or other payments to any person.
9.3 The Client indemnifies the Company against all loss, liabilities, demands and Taxes arising from any infringement or alleged infringement of any Intellectual Property Rights by:
9.3.1 the use by the Company of any Client Materials supplied in the course of the Company’s engagement with the Client; or
9.3.2 any conduct of the Client in the course of the Company’s engagement.
9.4 The Client has obligations under this clause continue after the Company ceases to provide access to the Digital Product to the Client.

 

10.0 "AS IS" and "AS AVAILABLE" Disclaimer
10.1 The Digital Product is provided to the Client "AS IS" and "AS AVAILABLE" and with all faults and defects without warranty of any kind.

10.2 To the maximum extent permitted under applicable law, the Company, on its own behalf and on behalf of its Affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Digital Product, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage or trade practice.

10.3 Without limitation to the foregoing, the Company provides no warranty or undertaking, and makes no representation of any kind that the Digital Product will meet thee Client's requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.

10.4 Without limiting the foregoing, neither the Company nor any of the company's provider makes any representation or warranty of any kind, express or implied:

10.4.1 as to the operation or availability of the Digital Product, or the information, content, and materials or products included thereon;

10.4.2 that the Digital Product will be uninterrupted or error-free;

10.4.3 as to the accuracy, reliability, or currency of any information or content provided through the Digital Product; or

10.4.4 that the Digital Product, its servers, the content, or e-mails sent from or on behalf of the Company are free of viruses, scripts, trojan horses, worms, malware, timebombs or other harmful components.

10.5 Some jurisdictions do not allow the exclusion of certain types of warranties or limitations on applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to the Client. But in such a case the exclusions and limitations set forth in this section shall be applied to the greatest extent enforceable under applicable law.

 

11.0 Indemnity
11.1 The Client indemnifies the Company and the Group and their employees, officers and agents against and must pay each relevant party on demand the amount of all losses and liabilities incurred as a result of:
11.1.1 any breach of any term of these Product Terms And Conditions by the Client or a breach of any express or implied warranty given by the Client;
11.1.2 any unlawful or negligent act or omission by the Client during use of the Digital Products by the Client;
11.1.3 any misuse or disclosure of Confidential Information by the Client; or
11.1.4 any infringement by the Client of any Intellectual Property Rights.
11.2 Not used.
11.3 The total liability of the Company, will in all circumstances be limited in the aggregate to the total Product Fees paid by the Client.

 

12.0 Disputes
12.1 If a dispute arises about the Company’s Digital Products from the Client, the matter should initially be discussed between an officer nominated by the Company and the Client.
12.2 If the parties do not resolve the dispute within 14 days and no other process for resolution is agreed, the parties may agree to refer the dispute to mediation.
12.3 The mediator will be appointed by agreement of the parties or, failing agreement, by the person nominated by the Chairman of the Australian Commercial Disputes Centre (the ACDC). The Dispute is to be mediated in accordance with the ACDC Mediation Guidelines.
12.4 The mediator’s role is to assist the parties to resolve the dispute by negotiation. The mediator will have no decision-making powers, nor will the mediator make formal recommendations.
12.5 The costs of mediation will be borne equally by the parties unless otherwise agreed.
12.6 Any right that a person may have under this clause is in addition to, and does not replace or limit, any other right that the person may have.

 

13.0 Legal and financial advice
13.1 The Client warrants by accepting these terms via purchasing the Digital Product that the Client has had the opportunity to obtain and/or has obtained independent legal and financial advice on the terms and conditions of the agreement set out in these Product Terms And Conditions.

 

14.0 Amendments
14.1 The agreement as set out within these Product Terms And Conditions may only be amended by the Company.

 

15.0 Assignments
15.1 The Client may only assign these terms or a right under these terms with the written consent of the Company.

 

16.0 No merger
16.1 The rights and obligations of the parties under these terms do not merge on completion of any transaction contemplated by the agreement.

 

17.0 Entire agreement
17.1 These terms supersedes all previous agreements about its subject matter. These Product Terms And Conditions and any associated Product Sale Agreement embody the entire agreement between the parties.
17.2 To the extent permitted by law, any statement, representation or promise made in any negotiation or discussion, is withdrawn and has no effect except to the extent expressly set out or incorporated by reference in this document.
17.3 The Client acknowledges and agrees that it does not rely on any prior conduct or representation by the Company in purchasing the Digital Products in accordance with these Product Terms And Conditions.

 

18.0 Further assurances
18.1 The Client must do all things reasonably necessary to give effect to these Product Terms And Conditions and the transactions contemplated by it.

 

19.0 Governing law and jurisdiction
19.1 Queensland law governs these terms.
19.2 Each party irrevocably submits to the non-exclusive jurisdiction of the Queensland courts and courts competent to hear appeals from those courts.

 

20.0 No waiver
20.1 The failure of a party to require full or partial performance of a provision of the Product Terms And Conditions does not affect the right of that party to require performance subsequently.
20.2 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.
20.3 A right under these Product Terms And Conditions 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.

 

21.0 Severability
21.1 A clause or part of a clause of these terms 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.
21.2 If any provision is or becomes illegal, unenforceable or invalid in any jurisdiction, it is to be treated as being severed from this document in the relevant jurisdiction, but the rest of this document will not be affected.

 

22.0 Costs

22.1 Each party bears its own costs in relation to the preparation and signing of any agreement between the parties.

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23.0 Translation
23.1 These Product Terms And Conditions may have been translated if the Company have made them available to the Client through their website.

23.2 The Client agrees that the original English text shall prevail in the case of a dispute.

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24.0 Operation of indemnities
24.1 Each indemnity in this document survives the expiry or termination of these terms.
24.2 A party may recover a payment under an indemnity in this document before it makes the payment in respect of which the indemnity is given.

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25.0 Notice
25.1 A notice, consent or communication under this document is only effective if it is:
25.1.1 in writing in English, signed by or on behalf of the person giving it;
25.1.2 addressed to the person to whom it is to be given; and
25.1.3 given as follows:
25.1.3.1 delivered by hand to that person’s address; or
25.1.3.2 sent to that person’s address by prepaid mail or by prepaid airmail, if the address is overseas; or
25.1.3.3 sent by email to that person’s email address.
25.2 A notice, consent or communication given under clause 24.1 is given and received on the corresponding day set out below. The time expressed is the local time in the place of receipt.
25.2.1 If delivered by hand:
25.2.1.1 That day, if delivered by 5.00pm on a Business Day; or
25.2.1.2 The next Business Day, in any other case.
25.2.2 If delivered via email:
25.2.2.1 At the time of departure from the sender’s mail server unless the sender receives an automated message generated by the recipient’s mail server (Failure Message) that the email has not been delivered within two hours. For the avoidance of doubt any response generated by or at the instigation of the recipient (including an ‘out of office’ message) will not be a Failure Message.
25.2.3 If sent via post:
25.2.3.1 Three Business Days after posting, if sent within Australia; or
25.2.3.2 Seven Business Days after posting, if sent to or from a place outside Australia.
25.3 A person’s address and email address are those set out in the associated Service Agreement, or as the person otherwise notifies the sender.

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Version 1.0 - last updated 15 Jan 2025