1.1 We are Qirkio Pty Ltd (ACN 671 870 018) (“Qirkio”). Our principal place of business is at Studio 13, 15 Inkerman Street, St Kilda, VIC 3182.
1.2 Qirkio provides online design services through its website at https://www.qirkio.com/ (“Website”) and associated services and functionalities available on a subscription basis (“Digital Services”).
1.3 These standard terms and conditions (“Standard Terms and Conditions”) are applicable to the Digital Services provided by Qirkio to any person who subscribes to receive the Digital Services through the Website (“Subscriber”).
1.4 Where a Subscriber:
(a) accepts these Standard Terms and Conditions as part of the subscription process; or
(b) continues to instruct Qirkio in respect of the supply of Digital Services,
the Subscriber will be deemed to have accepted these Standard Terms and Conditions with effect on and from the subscription commencement date (“Subscription Date”).
1.5 These Standard Terms and Conditions were last updated: October 2024
2.1 Qirkio agrees to perform, and the Subscriber agrees to accept the performance of, the Digital Services during the Subscription Term on and subject to the provisions of these Standard Terms and Conditions.
2.2 These Standard Terms and Conditions do not constitute an exclusive arrangement and do not prohibit:
(a) Qirkio or the Subscriber from contracting with third parties in relation to; or
(b) the Subscriber from performing or creating on its own and from its own resources,
the supply of services, whether in the nature of or similar to the Digital Services, subject to the confidentiality requirements of clause 11.
3.1 Qirkio offers different subscription options at different fees (“Subscription Fees”) in respect of the Digital Services as set out on the Website from time to time (each a “Subscription Option”, together the “Subscription Options”).
3.2 Each Subscriber will be required to choose the Subscription Option best suited to their needs as part of the subscription process and the Digital Services to be delivered by Qirkio will be set out in the specifications of the Subscription Option unless amended pursuant to clause 9 or otherwise agreed in writing by Qirkio.
These Standard Terms and Conditions will apply from the Subscription Date and the Subscription Option will automatically renew on a monthly basis unless and until otherwise cancelled pursuant to clause 14 (“Subscription Term”).
Qirkio must provide the Digital Services:
(a) with reasonable care and skill;
(b) in a timely and efficient manner;
(c) in compliance with applicable laws;
(d) without bringing the Subscriber or the Subscriber’s brand into disrepute and without exposing the Subscriber to regulatory or legal action by any person or regulator;
(e) by procuring that any employee or agent of Qirkio exercises appropriate
professional skill and care; and
(f) without infringing the Intellectual Property of any third party.
6.1 Qirkio must use reasonable endeavours to meet any timelines agreed by Qirkio and the Subscriber and notify the Subscriber of any necessary adjustment to timelines or likely delays.
6.2 Despite any agreed timelines, Qirkio reserves the right to withhold provision of the Digital Services at any time if the Subscriber fails to comply with these Standard Terms and Conditions including payment of the Subscription Fees.
7.1 In consideration for the supply of the Digital Services by Qirkio, the Subscriber agrees to pay the Subscription Fees associated with the Subscription Option on a monthly basis by direct debit arranged by Qirkio.
7.2 If payment of the Subscription Fees is unsuccessful, the Subscriber’s access to the Digital Services may be suspended until payment of the Subscription Fees is processed, and the Subscriber’s access to the Digital Services may be cancelled by Qirkio if payment of the Subscription Fees remains unsuccessful for a period of seven days.
8.1 Terms defined in the GST Act have the same meanings when used in this clause 8.
8.2 Unless expressly provided otherwise in these Standard Terms and Conditions, any sum payable or amount used in the calculation of a sum payable under these Standard Terms and Conditions has been determined without regard to GST and must be increased on account of any GST payable under this clause 8 .
8.3 If any GST is payable on any taxable supply made under these Standard Terms and Conditions to the recipient by the supplier, then:
(a) the recipient must pay the GST to the supplier on the earlier of the time of making payment of any monetary consideration on which the GST is
calculated and the issue of an invoice relating to the taxable supply;
(b) the recipient must pay the GST in the same manner as the manner of making payment of any monetary consideration on which the GST is calculated; and
(c) the supplier must provide as a precondition for payment by the recipient of the GST a tax invoice.
8.4 If the GST payable in relation to a supply made under or in connection with these Standard Terms and Conditions varies from the additional amount paid by the recipient under clause 8.3, then the supplier will provide a corresponding refund or credit to, or will be entitled to receive the amount of that variation from, the recipient.
9.1 Qirkio reserves the right to vary and amend these Standard Terms and Conditions, the Subscription Options, and the Subscription Fees associated with each Subscription Option at Qirkio’s discretion.
9.2 Notwithstanding clause 9.1 , any variation or amendment to these Standard Terms and Conditions, the Subscription Options, and the Subscription Fees will only come into effect following the end of the relevant billing cycle.
9.3 Qirkio will take reasonable steps to notify the Subscriber of any variation or amendment to the Standard Terms and Conditions, Subscription Options, and the Subscription Fees through the Website and by notice to the Subscriber by email.
10.1 Unless expressly provided otherwise in these Standard Terms and Conditions, the Subscriber acknowledges and agrees that Qirkio is the owner of the Intellectual Property in the Digital Services and any Deliverables.
10.2 Upon payment of the Subscription Fees by the Subscriber, Qirkio grants to the Subscriber a non-exclusive, perpetual, non-assignable licence to reproduce the Deliverables and use all Intellectual Property comprised in the Deliverables or any other aspect of the Digital Services.
10.3 The Underlying Intellectual Property will not form part of any Intellectual Property assignable to the Subscriber under these Standard Terms and Conditions.
11.1 Qirkio and the Subscriber must:
(a) use the Confidential Information of the other party solely as contemplated by these Standard Terms and Conditions, unless further use or disclosure of the Confidential Information is specifically authorised in writing by the other party;
(b) keep all Confidential Information of the other party secret and confidential;
(c) use reasonable care to protect the Confidential Information of the other party against public disclosure, whether in storage or in use; and
(d) not disclose the Confidential Information of the other party to any other person.
11.2 Qirkio and the Subscriber must, as soon as practicable (but in any event within five (5) Business days) after receipt of a request from the other party, return to the other party all Confidential Information of that party, except to the extent that Qirkio or the Subscriber is required by law to keep that information as part of its business records.
11.3 If Qirkio or the Subscriber has generated its own internal documents containing any Confidential Information of the other party, then:
(a) those documents may be destroyed rather than returned to the other party; and
(b) Qirkio or the Subscriber must provide to the other party written confirmation that such destruction has taken place.
11.4 Nothing in these Standard Terms and Conditions prohibits Qirkio or the Subscriber from disclosing the contents of these Standard Terms and Conditions to the extent necessary to enable it to enforce its rights or perform obligations under these Standard Terms and Conditions.
Qirkio will collect, use and store any personal information (as defined in the Privacy Act) of the Subscriber in the course of supplying the Digital Services in accordance with Qirkio’s Privacy Policy at Privacy Policy.
13.1 A dispute relating to or arising out of these Standard Terms and Conditions (Dispute) exists when Qirkio or the Subscriber gives notice (Dispute Notice) to the other party:
(a) stating that there is a Dispute; and
(b) detailing the subject of the Dispute.
13.2 If a Dispute Notice has been issued in accordance with clause 13.1, Qirkio and the Subscriber (or a representative of each party) must meet within ten (10) Business Days to discuss the resolution of the Dispute in good faith.
13.3 If the persons in clause 13.2:
(a) resolve the Dispute, then the resolution will be set out in a statement signed by the parties; or
(b) cannot resolve the Dispute within ten (10) Business Days (or such other period as agreed in writing by Qirkio and the Subscriber after the Dispute Notice has been given to the other party), then the Dispute must be referred to mediation in accordance with, and subject to, the Mediation Rules of the Resolution Institute.
13.4 All mediation proceedings are to be held in Melbourne, Victoria (or any other place agreed to in writing by Qirkio and the Subscriber).
13.5 If there is no resolution of the Dispute within fifteen (15) Business Days after the commencement of mediation under clause 13.3 (or such other period as agreed in writing by Qirkio and the Subscriber), Qirkio and the Subscriber may commence legal proceedings in any court or tribunal in relation to a matter that is the subject of a Dispute.
13.6 The costs and disbursements of any mediator will be paid equally by Qirkio and the Subscriber.
13.7 Qirkio and the Subscriber must pay their own costs and disbursements in relation to any procedure referred to in clause 13.3(b) and, subject to any court or tribunal orders, any proceedings referred to in clause 13.5 .
13.8 Qirkio and the Subscriber must continue to perform their respective obligations under these Standard Terms and Conditions except to the extent that the matter cannot be proceeded with until a Dispute has been determined (provided that Qirkio or the Subscriber has acted reasonably in relation to the Dispute).
14.1 Qirkio or the Subscriber may cancel the Digital Services at least seven days before the first day of the next billing cycle.
14.2 If Qirkio or the Subscriber cancels the Digital Services prior to the end of the current billing cycle, the Subscriber will continue to have access to the Digital Services under the Subscription Option until the last day of the current billing cycle.
14.3 The cancellation of the Digital Services does not entitle the Subscriber to a refund of the Subscription Fees.
14.4 Any cancellation of the Digital Services by Qirkio or the Subscriber releases Qirkio and the Subscriber from any further performance of obligations under the Digital Services following the end of the current billing cycle but does not:
(a) affect any accrued rights of Qirkio or the Subscriber in relation to any breach these Standard Terms and Conditions by the other party occurring before cancellation; or
(b) affect any provision in these Standard Terms and Conditions expressed to
operate or have effect after cancellation.
The Subscriber agrees that Qirkio may include references to the name of the Subscriber as part of Qirkio’s marketing and advertising materials and, subject to the confidentiality requirements under clause 11 , extracts from work provided as part of the Digital Services.
16.1 Except where the Digital Services are based on reference materials supplied by the Subscriber, Qirkio warrants and represents that all Digital Services and Deliverables do not infringe the Intellectual Property of any third party.
16.2 The Subscriber warrants and represents that it has obtained all necessary permissions for the agreed use of any reference materials supplied by the Subscriber to Qirkio which are necessary in order for Qirkio to use such materials in conjunction with the Digital Services.
16.3 The Subscriber indemnifies Qirkio from and against any loss or cost incurred resulting from:
(a) the inaccuracy of any representation or warranty made by the Subscriber; and/or
(b) any claim relating to the inappropriate use, including use without permission, of any reference materials supplied by the Subscriber to Qirkio or any infringement of the Intellectual Property of any third party relating to such use.
Qirkio must obtain and maintain professional indemnity and public liability insurance policies during the Subscription Term. The policies must be with a reputable insurer and include terms reasonably accepted as industry standard.
18.1 Except as expressly set out in these Standard Terms and Conditions:
(a) neither Qirkio or the Subscriber is in any way the agent of the other party for any purpose whatsoever or has any right to hold itself out as such;
(b) neither Qirkio or the Subscriber may make any promise, warranty or representation or execute any contract or otherwise deal in the name of or on behalf of the other party; and
(c) there is no relationship of joint venture, partnership, employer-employee or principal-agent between Qirkio and the Subscriber.
18.2 Neither Qirkio or the Subscriber may assign or purport to assign any right under these Standard Terms and Conditions.
18.3 If any provision of these Standard Terms and Conditions is held invalid, unenforceable or illegal for any reason, that provision will be deleted, and the remaining provisions of these Standard Terms and Conditions will remain in full force.
18.4 The failure of Qirkio or the Subscriber at any time to require full or partial performance of any provision of these Standard Terms and Conditions will not affect in any way the full right of that party to require that performance subsequently.
18.5 The waiver by Qirkio or the Subscriber of a breach of a provision of these Standard Terms and Conditions will not be deemed a waiver of all or part of that provision or any other provision or the right of that party to avail itself of its rights subsequently.
18.6 Any waiver of a breach of these Standard Terms and Conditions must be in writing signed by either Qirkio or the Subscriber granting the waiver and will be effective only to the extent specifically set out in that waiver.
18.7 A notice or other communication required or permitted to be given by Qirkio or the Subscriber to the other party in connection with these Standard Terms and Conditions must be in writing and:
(a) hand delivered;
(b) mailed by post with postage prepared; or
(c) sent by electronic mail, to that party’s address as notified to Qirkio or the Subscriber from time to time.
18.8 A notice or other communication is deemed given if:
(a) hand delivered, upon delivery;
(b) mailed, on the expiration of two (2) Business Days after posting; or
(c) sent by electronic mail and the sender does not receive a message from its internet service provider or the recipient's mail server indicating that it has not been successfully transmitted, on the day of sending if a Business Day, otherwise on the next Business Day.
18.9 Qirkio and the Subscriber agree and acknowledge that:
(a) these Standard Terms and Conditions are governed by and are to be construed in accordance with the laws of the State of Victoria and the
Commonwealth of Australia; and
(b) any claim made by Qirkio or the Subscriber against the other party in any way arising out of these Standard Terms and Conditions will be heard in the State of Victoria and the parties submit to the exclusive jurisdiction of those Courts.
In these Standard Terms and Conditions:
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne, Victoria.
Confidential Information means all information (whether written, oral, in electronic form or any other form) of or relating to Qirkio or the Subscriber which is disclosed to the other party including all financial or accounting information, customer names and lists, terms and conditions of supply, sales records, marketing analysis, research and reports and all information relating to technology, processes, products, specifications, inventions or designs, trade secrets and know-how and any information which is either:
(a) identified as confidential by that party at the time of disclosure; or
(b) of a nature which should reasonably be regarded by the other party as confidential but does not include information which:
(c) was in the public domain when it was disclosed to the other party;
(d) becomes, after being given to the other party, part of the public domain, except through disclosure contrary to these Standard Terms and Conditions or another obligation of confidence;
(e) was lawfully in the other party’s possession at the time of disclosure on a non-confidential basis;
(f) the other party lawfully receives from a third party that has the right to disclose it to the other party; or
(g) the other party is required by law, an order of a court or tribunal or the requirements of a recognised stock exchange to disclose.
Deliverables means any work product or other document or material delivered by or on behalf of Qirkio to the Subscriber pursuant to the Digital Services under the Subscription Option.
Digital Services has the meaning given in clause 1.2.
Dispute has the meaning given in clause 13.1 .
Dispute Notice has the meaning given in clause 13.1 .
GST means GST as defined in the GST Act or any like tax.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property means all patents, rights to inventions, copyright and related rights, moral rights, database rights, supplementary protection certificates, petty patents, rights in designs, trade marks, service marks, trade names, domain names, rights in goodwill or to sue for passing-off, personality rights, rights in undisclosed or confidential information (such as know-how, trade secrets and inventions (whether patentable or not)) and other similar or equivalent rights or forms of protection (whether registered or unregistered) and all applications (or rights to apply) for any renewals and extensions of such rights as may now or in the future exist anywhere in the world.
Privacy Act means the Privacy Act 1988 (Cth).
Qirkio has the meaning given in clause 1.1 .
Standard Terms and Conditions means these standard terms and conditions.
Subscriber has the meaning given in clause 1.3 .
Subscription Date has the meaning given in clause 1.4 .
Subscription Fees has the meaning given in clause 3.1 .
Subscription Option or Subscription Options have the meaning given in clause 3.1.
Subscription Term has the meaning given in clause 4.
Underlying Intellectual Property means:
(a) any Intellectual Property owned by Qirkio which came into existence prior to
the Subscription Date; and
(b) any Intellectual Property created by or on behalf of Qirkio after the Subscription Date for a purpose unconnected with these Standard Terms and
Conditions.
Website has the meaning given in clause 1.2 .