Terms & Conditions of Business
These are the Digital Remedy (Digital Remedy Pty Ltd - ACN 614 564 966) Terms And Conditions for the supply of Services including Web Design, Graphic Design, Software Development, Web Development, Digital Marketing, SEO and UX (the "Services").
It is a condition of your use of the Services that you comply with these terms and conditions.
This agreement commences on the date agreed by both parties and continues until either party terminates by terms agreed within this document or by other explicit agreement.
The following definitions apply in this document:
- ABN means Australian Business Number.
- ACN means Australian Company Number.
- Agreement means these Terms and Conditions of Business.
- Approval means approval of a Scope, or any Deliverable by any Authorised Person.
- Authorised Person means the directors or employees of the Client authorised to approve Work.
- Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the city of Brisbane, Australia.
- Confidential Information has the meaning set out in clause 13.1 but does not include information that Digital Remedy can establish:
- Was in the public domain at the time it was given to Digital Remedy;
- Became part of the public domain, without Digital Remedy's involvement in any way, after being given to Digital Remedy;
- Was in Digital Remedy's possession when it was given to Digital Remedy, without having been acquired (directly or indirectly) from the Client; or
- Was received from another person who had the unrestricted legal right to disclose that information free from any confidentiality obligation.
- Client means each client of Digital Remedy subject to this Agreement.
- Deliverable means any deliverable or milestone supplied by Digital Remedy subject to this Agreement.
- Digital Marketing means marketing of products or services using digital technologies, mainly on the Internet, but also including mobile phones, display advertising, and any other digital medium.
- Digital Remedy means Digital Remedy Pty Ltd ACN 614 564 966
- Intellectual Property means any intellectual property rights, whether registerable or not, including all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property of a party in any part of the world, and including applications for the registration of any such rights and any improvements, enhancements or modifications to such registrations.
- GST has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth)
- PPC means pay-per-click advertising.
- Promotional Materials means any written, graphic, video or other material intended to promote the Client.
- SEO means search engine optimisation services.
- Software means the development of a software application or web application.
- Services or Scope means the services provided by Digital Remedy subject to this Agreement, including but not limited to;
- Web Design;
- Graphic Design;
- Software Development;
- Web Development;
- Digital Marketing;
- Special Conditions mean any particular arrangements made between the parties that are governed by this Agreement and/or change any term or condition of this Agreement.
- Tax Invoice has the same meaning as in A new Tax System (Goods and Services Tax) Act 1999 (Cth).
- We, us or our has the same meaning as Digital Remedy.
- Work means the work to be performed by Digital Remedy in relation to the provision of Services in accordance with this Agreement.
Headings are only for convenience and do not affect interpretation. The following rules apply unless the context requires otherwise;
- The singular includes the plural and the opposite also applies.
- If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
- A reference to a clause refers to clauses in this Agreement.
- A reference to legislation is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.
- Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included.
- A reference to a party to this Agreement or another agreement or document includes that party's successors and permitted substitutes and assigns (and, where applicable, the party's legal personal representative).
- A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
- A reference to information is to information of any kind in any form or medium, whether formal or information, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.
- A reference to dollars or $ is to an amount in Australian currency unless otherwise explicitly specified.
APPLICATION OF THIS AGREEMENT
This Agreement applies to each Client's use of the Services provided by Digital Remedy.
Where the Client does not accept the terms and conditions of this Agreement, the Client must immediately cease using the Services.
This Agreement may be updated by Digital Remedy at its absolute discretion from time-to-time, and unless stated otherwise by Digital Remedy in writing, such updates shall come into effect 10 Business Days after the Client receives written notice of the update(s).
If the Client does not accept any update to this Agreement, the Client may terminate this Agreement and cease using the Services.
- This Agreement and any proposal or quote prepared for the Client (whether orally or in writing) sets out the Scope of the Services and Deliverables the Client has requested.
- The Work will not extend beyond that Scope unless Digital Remedy and the Client agree in writing.
- Digital Remedy will provide the Services to the Client.
Exclusivity. The Client shall not engage any third party to provide Services in Australia that compete with or are similar to the Services provided by Digital Remedy during the Term of this Agreement.
Digital Remedy will:
- Work diligently to protect and promote the interests of the Client at all times;
- Act loyally and faithfully towards the Client in all matters;
- Comply with all relevant laws and industry standards in respect of providing the Work; and
- Act in accordance with the Client's reasonable directions while providing the Work.
THE CLIENT'S KEY OBLIGATIONS
The Client will:
- Ensure that Digital Remedy has access to all the:
- Resources, personnel, electronic systems and premises required to provide the Work; and
- All facilities and materials and information reasonably requested for Digital Remedy to do its job;
- Establish and maintain clear channels of communication at all times with Digital Remedy;
- Promptly provide clear, complete and timely instructions and all necessary information and documents to enable Digital Remedy to provide the Work effectively. The Client must tell Digital Remedy immediately if Digital Remedy have misunderstood the Client or made incorrect assumptions. The Client must take reasonable care to protect its own interests.
- Provide Digital Remedy with all information, assistance and materials that Digital Remedy requests from time to time to facilitate the proper and timely performance of the Work.
- Notify Digital Remedy promptly if the Client considers that any statement made in any document submitted by Digital Remedy to the Client for Approval is incorrect or misleading in any way, or may give rise to any claim or action for defamation or otherwise against Digital Remedy.
- Act in good faith at all times towards us and give us such assistance and co-operation as we reasonably request.
- Not make or publish or cause to be made or published any false, misleading, deceptive or mis-descriptive statement or information in relation to the Service and/or our company which may give rise to any liability to us and you shall fully indemnify us and keep us indemnified against any liability arising from or by reason of any such false, misleading, deceptive or descriptive statement or information in relation to the Service and/or our company or any part of it. This sub-clause shall survive the term of this agreement.
- Ensure that all terms and conditions of use and/or warning notices which we may prescribe for display to online customers using commerce sites which use the Services are displayed strictly in accordance with our directions.
WARRANTIES AND LIABILITIES
To the maximum extent permitted by law:
- The use of the Service by the Client (which includes the contents thereof and any use of information) is at the Client's sole risk.
- Digital Remedy and its information providers, licensors, licensees, employees or agents do not:
- make any warranty as to the results obtained from the use of the Service;
- warrant that the provision of the Services or any part of the Services will be continuous or uninterrupted;
- warrant that the provision of the Services or any part of the Service will provide you a guaranteed outcome;
- warrant that data transmitted or received by you, your clients, or any person through the use of the Service will be accurate;
- warrant that the Service or any part of the Service is free from defects;
- warrant that the Service or any part of the Service will operate without interruption or errors.
- The Service is provided on an "as is" basis and to the extent permitted by law without warranties of any kind, either expressed or implied including but not limited to warranties of title or implied warranties of merchantability or fitness for a particular purpose or use.
- Neither Digital Remedy nor its information providers, licensors, licensees, employees, and agents nor anyone else involved in creating, producing or delivering the Service shall be liable for any direct, indirect, incidental, special or consequential damages arising out of use of the Service or inability to use the Service or out of any breach of any warranty.
The Client hereby indemnifies and shall keep indemnified Digital Remedy and its information providers, licensors, licensees, employees or agents in respect of any loss or damage, action, claim, suit, or proceeding suffered by or brought against Digital Remedy and its information providers, licensors, licensees, employees or agents by any person:
- in relation to or concerning any use of Digital Remedy or the Service by the Client; or
- as a result of the transmission of any illegal and/or fraudulent or offensive material by the Client; or
- as a result of any breach of the Agreement by the Client; or
- as a result of any willful, unlawful or negligent act or omission of the Client. You shall not make or prosecute any claim or demand against us or our contractors arising from a failure of or delay in the provision of a Service.
The provisions of this Clause will survive any termination of the Agreement.
Except as expressly provided to the contrary in this Agreement, all warranties whether expressed, implied, statutory or otherwise, relating in any way to the subject matter of this agreement, are excluded. Where any statute implies in this agreement any term, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this Agreement. However, our liability for any breach of the term will, if permitted by that statute be limited, at our option, to the resupply of the Services again; or payment of the cost of having the Services supplied again by Digital Remedy.
You warrant that at the time of entering into this Agreement you are not relying on any representation made by us which has not been stated expressly in this Agreement, or on any descriptions or specifications contained in any other document directly relating to the project or individual service at hand.
You accept responsibility for all information and material issued from any Services, and indemnify us and hold us harmless against any liability in relation thereto.
You are solely responsible for dealing with persons who access your data or data presented on your web site or presented by you or by an agent for you or by Digital Remedy on your behalf, and must not refer complaints or inquiries in relation to such data to us, except where an alternative agreement has been placed in effect for a temporary period.
Risk of loss of or damage to your computer system including, loss or damage to data or software or configuration or functionality, and whether or not arising from the implementation or use of the Service or any part of the Service at all times remains with you.
You also acknowledge that we do not vet or approve any information or material available through the Services and that we do not accept any liability. To the full extent permitted by law you access and use such information and material at your own risk.
FEES AND PAYMENTS
- You must pay the charges for the Services set out in the Fee Schedule and any additional Expenses set out in this Agreement.
- Digital Remedy will:
- reserve the right to not undertake any work falling outside of Clauses 2.1(r)i to 2.1(r)vii without additional payment or an agreement by the Client to pay Digital Remedy at its hourly rate;
- advise the Client as soon as reasonably practicable where work falls outside of these parameters and give the Client an estimate of the additional costs/rates.
- If Digital Remedy obtain any goods or services for the Work from third parties the Client agrees to pay these at cost ("Expenses"). Such Expenses shall include, without limitation:
- Third party advertisers;
- Google AdWords;
- Facebook Business Ads;
- External consultants;
- Design, artwork and print;
- Video production;
- Photography and prints.
- Digital Remedy shall seek Approval prior to incurring the cost of any Expenses.
- Unless otherwise stated, fees are exclusive of GST, which is payable in addition at the prevailing rate.
- Digital Remedy shall provide a Tax Invoice to the Client for any Work provided.
- The Client agrees to pay any Tax Invoice promptly and within the stated timeframe, which in default shall be 14 Business Days from the date of the invoice.
- Payment shall be by electronic transfer into Digital Remedy's nominated bank account unless otherwise agreed between parties.
- Failure to pay within the stated timeframe (unless otherwise agreed in writing) will result in referral of the invoice to a collection agency or law practice, for which you will be liable for all additional costs including recovery and legal expenses. Upon referral of an unpaid invoice to a collection agency or law practice any preferential rates or variations to Digital Remedy's terms and conditions of business (outlined here), will be deemed null & void and will revert to our standard terms and conditions including the applicable standard professional fees.
- In the event that Digital Remedy has provided a preferential rate or varied our terms of business in any way for the client and the Tax Invoice remains unpaid after the due date, we reserve the right to revert to standard terms of business including revising the invoice value at our standard rates as applicable.
- GST (where applicable) is calculated on the total fee payable and shown as a separate item on invoices. Appropriate tax invoices are supplied.
- If any value added tax applies in a jurisdiction other than Australia, the parties will comply with all rules, laws and requirements for that value added tax. These will be added in addition to our service fee.
Disputed Tax Invoice
- Should the Client dispute any charge on a Tax Invoice, the Client must notify Digital Remedy of the disputed item within 10 Business Days of the date of the Tax Invoice.
- The Client must pay the amount of the Tax Invoice which is not in dispute within the stated timeframe.
Intellectual Property Rights
- All Intellectual Property Rights relevant to the Service or software or designs or documents offered as part of the Service remain with us or with the original owner. Except where specified to the contrary, no Intellectual Property Rights are transferred as part of the Service.
- Components of the Service are made available to the Client on a non- exclusive basis for use in conducting their normal course of business.
- Subject to subclauses 4, 7 and 8, we shall indemnify you against liability under any final judgment in proceedings brought by a third party against you which determine that your use of the Services constitutes an infringement of Australian Intellectual Property Rights.
We will not indemnify you as provided unless you:
- notify us in writing as soon as practicable of any infringement, suspected infringement or alleged infringement;
- give us the option to conduct the defence of such a claim, including negotiations for settlement or compromise prior to the institution of legal proceedings;
- provide us with reasonable assistance in conducting the defence of such a claim;
- permit us to modify, alter or substitute the infringing part of the Service (which may, at our option, include ceasing to offer the infringing part of the Service) at our expense, to render the Service non-infringing; and
- authorise us to procure for you the authority to continue the use and possession of the Service.
We shall not indemnify you if such infringement, suspect infringement or alleged infringement arises from:
- use of the Service or any part of the Service in combination by any means and in any form with other goods not specifically approved by us;
- use of the Service or any part of the Service in a manner or for a purpose not reasonably contemplated or not authorised by us;
- modification or alteration of the Service or any part of the Service without our prior consent in writing;
- any transaction entered into by you relating to the Service or any part of the Service without our prior consent in writing.
In the event that proceedings are brought or threatened by a third party against you alleging that your use of the Service or any part of the Service constitutes an infringement of Intellectual Property Rights, we may at our option and at our own expense conduct the defence of such proceedings. You shall provide all necessary co- operation, information and assistance to us in the conduct of the defence of such proceedings.
You shall indemnify us against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party alleging such infringement if:
- the claim arises from an event specified in subclause 8; or
- our ability to defend the claim has been prejudiced by your failure to comply with the provisions of subclauses 4 or 7.
- the claim refers to any part of the Service which relies directly or indirectly on Intellectual Property provided to us by you for use as part of the Service.
- the claim refers to any part of the Service which relies directly or indirectly on Intellectual Property warranted or authorised by you or otherwise referred to by you as acceptable to use.
PRIVACY ACT & RESOLUTION
Digital Remedy is fully compliant with the provisions of the Australian Privacy Act 1988 as they apply to us. By accepting these Terms and Conditions, you confirm that your business is also compliant with the provisions of this legislation.
These Terms and Conditions and all matters regarding the interpretation and/or enforcement of them, are governed exclusively by the laws in force where the Client has its registered office or principal place of business, or if this cannot be determined, the laws in force in the State of Queensland, Australia and the laws of the Commonwealth of Australia and the parties submit to the non-exclusive jurisdiction of the state and federal courts located in the State of Queensland, Australia.
TERM AND TERMINATION
- This Agreement commences when Digital Remedy begins supplying the Services under this Agreement to the Client and continues until it expires or is terminated in accordance with Clause 11.2.
- Either party may terminate this agreement by 30 days notice in writing (including any email) to the other party.
Termination. Without limiting the rights which you or us may otherwise have arising from a breach of this Agreement, you or us may terminate this Agreement immediately by notice in writing if:
- any payment due from you to us under this Agreement remains unpaid for a period of fourteen (14) days;
- you or us breach any clause of this Agreement and such breach is not remedied within fourteen (14) days of written notice by us or you;
- you or us become subject to any form of insolvency administration;
- you or us, being a natural person, die; or
- the Service becomes unavailable for a period in excess of one month.
SEVERABILITY AND WAIVER
The Agreement shall endure to the benefit of and be binding upon the successors, assigns, heirs, executors and administrators of the parties.
Any failure by you or us to enforce any clause of this agreement, or any forbearance, delay or indulgence granted by us or you, will not be construed as a waiver of your or our rights under this agreement.
If any provision of this agreement is held invalid, unenforceable or illegal for any reason, this agreement shall remain otherwise in full force apart from such provision which shall be deemed deleted.
END OF TERMS AND CONDITIONS OF BUSINESS
Last updated: 05 March 2018