Agreement – means this Terms of Service Agreement, it also includes Transcript Divas Privacy Policy and any signed confidentiality agreement entered into between You and Transcript Divas Australia.
Australian Law – means any statute or other legislative provision, any common law or rule of equity or either of the above.
Balance – means the difference between any Deposit paid and the remaining balance owing to Transcript Divas Australia for the provision of the Services.
Quote – means an estimation of the charges payable by You to Transcript Divas Australia for Services based on any, all or a combination of output produced (e.g. the number of pages or words, hours worked or charges received) which basis will be expressed as the Quote.
Order – means any Request for Services that has been accepted by Transcript Divas Australia. Transcript Divas Australia may accept a Request for Services as set forth in Section 2.
Request for Services – means the online order form provided by You to Transcript Divas Australia seeking Services.
Services – means Pre-Recorded Transcription, Recording Services, Record and Transcribe or Real-Time Transcriber.
Transcript – means the product of the Pre-Recorded Transcription, Record and Transcribe or Real-time Writer.
Transcript Divas Australia – means Andrew Dodson trading as Transcript Divas Australia ABN 44 925 005 362
You – means the organisation or individual set forth in the contact details section of a Request for Services or the online order form.
2. ORDERS, FEES, PAYMENTS, TERMINATION
2.1 Quotes.
If requested by You, Transcript Divas Australia will provide a Quote of a project cost either online or via email. Verbal quotes will not be provided. Transcript Divas Australia will make all reasonable efforts to provide an accurate quote. Transcript Divas Australia’s Quote is based on assumptions (some of which You may have given to Transcript Divas Australia) including but not limited to the duration of the recording, the quality of the recording, how many people are talking, how easy it is to hear the speakers and any other relevant factors. If the assumptions are incorrect, You acknowledge and accept that Transcript Divas Australia will charge based on the actual services provided not the quote.
2.3 Orders & Payment.
2.3.2 To request services You must complete an official order form on the Transcript Divas website https://transcriptdivas.com.au or send the equivalent information in an email. Your order is considered accepted when the order form or the equivalent has been confirmed by Transcript Divas Australia by email.
2.3.3 You acknowledge and represent that You are placing this request on behalf of yourself/your firm/company/organisation and do so in the capacity as a principal and not in any capacity as an agent.
2.3.4 You agree to pay all of Transcript Divas Australia’s fees for providing the Services in the manner provided within fourteen (14) days of receipt of the invoice.
2.3.5 You agree to pay a late payment fee for overdue payments that are up to one month late—$60 late fee (as calculated at one (1) hour of account team time), and more than one month late—$220 (as calculated at two (2) hour of account team time, one (1) hour of owner time).
3. WARRANTY DISCLAIMER TO THE EXTENT NOT PROHIBITED BY LAW, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, AND TRANSCRIPT DIVAS AUSTRALIA HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT AND TITLE. TRANSCRIPT DIVAS AUSTRALIA DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED WITHOUT ERROR OR INTERRUPTION.
4. TERM TERMINATION
4.1 Term.
This Agreement will continue until the expiration of the Order. An Order shall be effective until the Services pursuant to such Order are delivered by Transcript Divas Australia.
4.2 Termination.
4.2.1 Either party may terminate the Agreement upon written notice if the other party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach by the non-breaching party.
4.2.2 Transcript Divas Australia may terminate this Agreement immediately for cause if You: make a statement from which it may be reasonably deduced that You are, the subject of an event described in section 459C(2)(b) of the Corporations Act; have an execution or any other process of any court or authority levied against You or any of Your property, which is not satisfied, stayed, discontinued or withdrawn within 10 days; or fail to comply with a statutory demand in accordance with section 459F of the Corporations Act (or the corresponding provisions of any similar enactment in any place).
5. RELEASE
5.1 To the extent not prohibited by law, You agree that Transcript Divas Australia is not liable for any loss, damage or injury sustained by You or any other party as a consequence of relying on or use of Transcripts or services
5.2 To the extent not prohibited by law, You agree that any implied warranty under any Australian Law is expressly superseded by this Agreement.
5.3 If liability arises under Australian Law, you agree that at the election of Transcript Divas Australia, it may re-perform the Services or compensate You financially for the cost of the Services.
6. LIMITATION OF LIABILITY
6.1 Subject to the Australian Consumer Law, nothing in this Agreement shall be taken to exclude or limit liability to the extent that such exclusion or limitation is not permitted by applicable law.
6.2 The total aggregate liability of Transcript Divas Australia for any and all claims arising under this Agreement or otherwise arising from the transactions contemplated herein, regardless of the form of action (including, but not limited to actions for breach of contract, negligence, strict liability, rescission and breach of warranty) will not exceed the aggregate fees actually paid to Transcript Divas Australia under this Agreement during the one year preceding such claim. Transcript Divas Australia’s limitation of liability is cumulative with all Your payments during such one-year period being aggregated to determine satisfaction of the limit. The existence of more than one claim shall not enlarge or extend the limit.
6.3 In no event shall Transcript Divas Australia be liable to You for any incidental, special, indirect, consequential, or punitive damages, including, but not limited to, loss of revenues, loss of, or loss of use of, software or data, loss of customers, loss of anticipated savings and loss of profits, whether such alleged damages are labelled in tort, contract or indemnity, even if such party has been advised of the possibility of such damages.
7. MISCELLANEOUS
7.1 Force Majeure.
Nonperformance by Transcript Divas Australia shall be excused to the extent that performance is rendered impossible by strike, fire, flood, acts of God, governmental acts or orders or restrictions, acts of terrorism, war, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of Transcript Divas Australia and not due to its fault or negligence.
7.2 Governing Law.
This Agreement is governed by and construed in accordance with the laws of New South Wales, Australia, excluding its conflict of laws principles and the United Nations Convention on Contracts for the International Sale, and the parties unconditionally and irrevocably submit to the non-exclusive jurisdiction of the Courts of New South Wales and those Courts hearing appeals from them, located exclusively in Sydney, New South Wales. The official text of the Agreement and any Addendum or any notices given on accounts or statements required hereby shall be in English.
7.3 Third-Party Beneficiaries.
Except as expressly stated otherwise in this Agreement, nothing in this Agreement is intended to create any rights in, or confer any benefits upon, any person or entity other than the parties to this Agreement.
7.4 Assignment.
You shall not assign or otherwise transfer its rights, obligations or remedies under this Agreement, in whole or in part, to a third party unless such assignment is approved in writing by Transcript Divas Australia. Transcript Divas Australia shall be free to assign or otherwise transfer its rights and obligations under this Agreement, in whole or in part, to a third party, provided that Transcript Divas Australia provides You with prompt written notice of the assignment. This Agreement shall bind the parties, their respective related companies and any executor, administrator, receiver, liquidator, trustee in bankruptcy, heir, successor or permitted assign thereof.
7.5 Entire Agreement; Headings, Counterparts.
This Agreement constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersede all prior agreements, arrangements and undertakings between the parties. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by a written instrument signed by a duly authorized representative of each of the parties. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which shall be deemed to be an original instrument. Each party acknowledges that it has not been induced to enter into this Agreement by any promise or representation, warranty or undertaking given or made by another party unless such promise, representation, warranty or undertaking is contained in this Agreement. An agreement, representation or warranty on the part of or in favour of two or more persons binds or is for the benefit of them jointly and severally. Each representation, covenant and obligation under this Agreement shall continue in full force and effect until such representation, obligation or covenant is satisfied or completed.
7.6 Partial Validity Waiver.
The illegality, invalidity or unenforceability of any provision of this Agreement shall not affect the legality, validity or enforceability of any other provision or part-provision of this Agreement and any provision or part-provision of the Agreement which is illegal, invalid or unenforceable shall be severed from the remainder of this Agreement.