These are the Standard Terms and Conditions for users of all services and products provided by Digital Copywriting.
They cover the supply of all products and services including Web Hosting, Web Design, Graphic Design, SEO, Photography, Video, Digital Strategy, Branding, Copywriting, Printing, Production, Training and E-Commerce ("the Service"). These terms apply to you as a user of the Service ("you"). It is intended to ensure that you know your rights and obligations when using the Service. Please read these terms and conditions carefully. It is a condition of your use of the Service that you comply with these terms and conditions. This agreement commences on the date of work begun by Digital Copywriting for you by both parties and continues until either party terminates by terms agreed within this document or by other explicit agreement. On termination or expiry of this agreement for any reason, we may delete all of your data from any Digital Copywriting operated storage media.
1. Application and Variation of these Terms
These terms and conditions are the terms on which we provide the Service to you. These terms constitute the agreement in its entirety and supersede prior agreements. We may modify these terms as applying to any agreement, the pricing structure for any Service or the terms of the operation by general notice on a page of the Internet referred to on the Digital Copywriting Internet Web Site, or by email or other methods of communication, and any use after that publication will constitute an acceptance of that modification. You will then be obliged to comply with these terms and conditions as amended or cease using the Service.
2. Service
Access to the Service shall be provided strictly in accordance with the terms of this agreement including the following conditions:
2.1 We may assign you a user name and password which will provide you with access to a Digital Copywriting Membership Service. This password is for your use only. Extra usernames/passwords should be arranged if other company representatives wish to use any membership services. These details can be set up on request.
2.2 Scheduled Maintenance - We must perform scheduled maintenance to servers from time to time. We will attempt to perform all scheduled maintenance at times which will affect the least amount of customers.
2.3 Unscheduled maintenance may need to be performed from time to time.
2.4 We will archive your data onto backup mechanisms on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, we will restore from the last known good archive. In the event of corruption of all of our archives, or in the event that an old archive is used to restore data, you are required to hold copies of all your data. This process requires that you maintain a recent copy of your data at your premises at all times.
2.5 We shall not be obliged to put in place any substitute or alternative system should there be a failure of or delay in the provision of the Service.
2.6 Except to the extent specified to the contrary in this agreement, we shall not be obliged to support the Service, whether by providing advice, training, error correction, modification, updates, new releases or enhancements or otherwise.
3. Payment
3.1 You must pay for all Service as agreed from time to time. For Web Hosting, you must pay to us the Hosting Fee and Setup Fee in advance. The Hosting Fee is exclusive of any government taxes or charges and exclusive of any registration or delegation charges imposed by domain name authorities. For SSL (Secure Sockets Layer) certificates you must pay the yearly licence fee in advance before the certificate will be registered or renewed.
3.2 You must pay all amounts billed in accordance with the invoice details.
3.3 We offer monthly, annual and periodic products as a Service. Where such programs have a recurring invoice, that invoice is due and payable within terms specified on the invoice.
3.4 The standard due period is 7 days, with a 50% deposit for some Service. If the account is not settled within the billing period, the Service may be suspended and no deliverable part of any project will be supplied until the account is settled. Once the service or product has been delivered, the balance is due and payable prior to you having permission to use the Service.
3.5. You consent to us obtaining a credit agency report containing personal information (as well as information concerning commercial creditworthiness and activities) for the purpose of assessment by us for the purpose of the collection of payments which are overdue.
3.6. We may discontinue all services as a result of non-payment within 7 days of the due date of an invoice.
3.7. We may increase our fees and charges, upon giving you not less than 14 days' notice in writing prior to the expiration of this agreement or any renewed term and will take effect upon the commencement of the renewed term of this agreement. Either party may terminate the agreement subject to sub-clause 24 if Fee changes are unacceptable.
3.8. Where you have authorised us to charge Service Fees against your credit card you authorise us to charge Service Fees immediately as and when they become due and payable (irrespective of whether an invoice has been issued). However, you may cancel that authorisation at any time by notice in writing to us provided that any such cancellation will not have any effect until all moneys owed by you to us have been charged to your credit card. `
4. Warranties and Liabilities
4.1 To the maximum extent permitted by law:
a) The use of the Service by You (which includes the contents thereof and any storage or use of information) is at the Customer's sole risk.
b) Digital Copywriting and its providers, licensors, licensees, employees or agents do not:
ii) make any warranty as to the results obtained from the use of the Service.
iii) warrant that the provision of the Service or any part of the Service will be continuous or uninterrupted;
iv) warrant that the provision of the Service or any part of the Service will provide you with a secure or confidential means of communication;
v) warrant that data transmitted or received by you, your clients, or any person through the use of the Service will be accurate or virus free;
vi) warrant that the Service or any part of the Service is free from defects;
vii) warrant that the Service or any part of the Service will operate without interruption or errors.
c) 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.
d) Neither Digital Copywriting 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.
4.2 The Customer hereby indemnifies and shall keep indemnified Digital Copywriting 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 Copywriting and its information providers, licensors, licensees, employees or agents by any person:
a) in relation to or concerning any use of Digital Copywriting or the Service by the Customer or a Designated User; or
b) as a result of the transmission of any illegal and/or fraudulent or offensive material by the Customer or a Designated User; or
c) as a result of any breach of the Agreement by the Customer or a Designated User; or
d) as a result of any willful, unlawful or negligent act or omission of the Customer or a Designated User. 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.
4.3 The provisions of this Clause will survive any termination of the Agreement.
4.4 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 Copywriting.
4.5 You warrant that:
a) 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;
b) you will conduct reasonable tests and computer virus scanning as may be necessary to ensure that data uploaded by you onto or downloaded by you from the Server or emailed to us or sent to us in any digital form does not contain any computer virus and will not, in any way, corrupt the data or systems of any person.
A request for Digital Copywriting to view a document is deemed as an authorisation to perform virus maintenance on the document. Pro-rata hourly support fees may be incurred if the job of virus maintenance initiated by supply of an infected document to Digital Copywriting becomes substantial;
d) you will keep secure any passwords used to upload data to any location specified by You and Digital Copywriting.
4.6 You accept responsibility for all information and material you issue over any Service, and indemnify us and hold us harmless against any liability in relation thereto. In particular you undertake that you shall not publish or issue any information which is illegal. You also acknowledge that we do not vet or approve any information or material available through the Service 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.
4.7 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 Copywriting 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.
4.8 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.
4.9 We shall not be liable for any loss or damage you suffer if a terminal or telephone line or any other piece of equipment or software is not working.
5. Suspension of Service
We may from time to time without notice suspend the Service or disconnect or deny your access to the Service:
a. During any technical failure, modification or maintenance involved in the Service provided that we will use reasonable endeavours to procure the resumption of the Service as soon as reasonably practicable; or
b. if the Customer fails to comply with any agreement (including failure to pay charges due) until the breach (if capable of remedy) is remedied, or does, or allows to be done, anything which in our opinion may have the affect of jeopardising the operation of the Service. Notwithstanding any suspension of any Service under this clause you shall remain liable for all charges due throughout the period of suspension.
6. Conditions of Service
6.1 The Customer shall adhere to the Rules in force from time to time.
6.2 We may monitor or keep any records that it deems necessary of the Customer's use of the Service.
6.3 The Customer shall not use the Service nor shall the customer permit the Service to be used:
a) in such a manner as may reasonably be expected by Digital Copywriting to impair the use of the Service by other customers of Digital Copywriting; or
b) for any activities of an illegal or fraudulent nature, including activities prohibited under the Telecommunications Act 1997 (Cth), the Copyright Act 1968 (Cth), the Privacy Act 1988 (Cth) or under other applicable Australian State and Commonwealth laws.
6.4 You will make documentation specific to the business requirements of any web site available to the development team, together with staff assistance as necessary.
6.5 The creative and technical work provided by Digital Copywriting will remain the property of the development team and/or its original copyright owners. Permission for You to use any and all Service is granted with payment of invoice for use in conducting the normal course of business.
6.6 Except where specified to the contrary, you acknowledge that there is no transfer of title or ownership to you of software or documentation provided with or as part of the Service, or any modifications, updated or new releases of the software or documentation provided with or as part of the Service.
6.7 You shall not modify or alter the Service or merge all or any part of the Service with any other Service without our written permission.
6.8 This agreement shall apply to the Service as modified or altered.
6.9 You shall not reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of the Service.
7. Proposals
7.1 Digital Copywriting will provide Service additional to those outlined in any proposal at Digital Copywriting time and materials rates.
7.2 The prices outlined any proposal are estimates based upon assumptions made during internal Digital Copywriting planning. Cost estimates are prepared assuming Digital Copywriting standard level of service and taking into account work that has been completed on similar Digital Copywriting projects in the past.
At our sole discretion, Digital Copywriting will deliver systems that by fair practice in our industry can be reasonably described by the terms outlined in the proposal provided. Variations to the Service requested by the client that cause estimated delivery timeframes to be exceeded will incur extra costs.
7.3 Service tasks are subject to assumptions as outlined within the proposal and communicated outside the scope of the proposal.
7.4 Errors & Omissions Excluded
8. Your Obligations
During the term of this agreement you shall:
8.1 Act in good faith at all times towards us and give us such assistance and co-operation as we reasonably request.
8.2 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.
8.3 Ensure that all terms and conditions of use and/or warning notices which we may prescribe for display to online customers using sites which use the Services are displayed strictly in accordance with our directions. However this subclause 9.3 does not create any obligation to create or recommend any appropriate terms and conditions of use and/or warning notices.
9. Confidentiality
9.1 You shall not, without our prior written approval, disclose our Confidential Information.
9.2 You shall not be in breach of subclause 1 in circumstances where you are legally compelled to disclose the Confidential Information.
9.3 You shall take all reasonable steps to ensure that your employees and agents, and any sub-licensees do not make public or disclose our Confidential Information.
9.4 We may at any time require you to arrange for your employees, agents or sub-contractors engaged in the performance of this agreement to execute a suitable confidentiality deed.
9.5 You shall on demand return to us any documents supplied by us to you in connection with this agreement.
9.6 We shall not, without your prior written approval, disclose your Confidential Information.
9.7 We shall not be in breach of subclause 1 in circumstances where we are legally compelled to disclose your Confidential Information.
9.8 We shall take all reasonable steps to ensure that our employees and agents, and any sub-licensees do not make public or disclose your Confidential Information.
9.9 This clause shall survive the termination of this agreement.
10. Title and Intellectual Property
10.1 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. Provision of the Service is made available to the client on a non- exclusive basis for use in conducting their normal course of business.
10.2 Subject to subclauses 2, 3 and 4, 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 and/or Merchant Software constitutes an infringement of Australian Intellectual Property Rights.
10.3 We will not indemnify you as provided in subclause 1 unless you:
a) notify us in writing as soon as practicable of any infringement, suspected infringement or alleged infringement;
b) 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;
c) provide us with reasonable assistance in conducting the defence of such a claim;
d) 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
e) authorise us to procure for you the authority to continue the use and possession of the Service.
10.4 We shall not indemnify you if such infringement, suspect infringement or alleged infringement arises from:
a) 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;
b) 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;
c) modification or alteration of the Service or any part of the Service without our prior consent in writing; or
d) any transaction entered into by you relating to the Service or any part of the Service without our prior consent in writing.
10.5 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.
10.6 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:
a) the claim arises from an event specified in subclause 3; or
b) our ability to defend the claim has been prejudiced by your failure to comply with the provisions of subclauses 2 or 4.
b) 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.
b) 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.
11. Handling of Data
11.1 We may monitor, record and store the Data or any part of it.
11.2 We will not without your prior written consent disclose Data identified as confidential information to a third party except as required by law.
11.3 We will take reasonable measures to secure the Data from unauthorised access and will require our employees who have access to the Data to execute a non-disclosure agreement. You acknowledge that notwithstanding these measures, we are unable to warrant that unauthorised access to Data cannot occur.
11.4 Our obligation under this clause shall survive the termination of this agreement.
12. Duration
12.1 This agreement and the Licence shall remain in force from the Commencement Date until the expiry of the Initial Term (where an Initial Term has been specified) or until it is terminated by the mutual agreement of you and us or as may be provided for in this agreement.
12.2 Subject to sub-clause 3 and if you are not in breach of any of your obligations under this agreement, then you shall have the option to renew this agreement for a subsequent term of the same duration as the Initial Term. The right of renewal shall be exercised by notice in writing to us not less than 14 days prior to the expiration of the
Initial Term and in the event of a renewal of the term as herein provided the renewal shall be subject to the same terms and conditions as this agreement except for this right of renewal.
12.3 Renewal of this agreement pursuant to sub-clause 12.2 is subject to our consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, we may require an adjustment to the Service Fee as a condition of providing our consent to the renewal.
13. Termination
13.1 You may terminate this agreement by giving us 7 days notice in writing.
13.2 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:
a) any payment due from you to us under this agreement remains unpaid for a period of fourteen (14) days, in which case amounts due to date are still due and payable;
b) 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;
c) you or us become subject to any form of insolvency administration;
d) you or us, being a natural person, die, in which case the fees are to be paid by your estate; or
e) the Service becomes unavailable for a period in excess of one month.
13.3 Renewal of this agreement pursuant to sub-clause 12.2 is subject to our consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, we may require an adjustment to the Service Fee as a condition of providing our consent to the renewal.
13.4 If this agreement is terminated pursuant to sub-clauses 1 or 2 or otherwise by you or us, we may, in addition to any additional or alternative remedies provided by law:
a) repossess Service or equipment;
b) retain all moneys already received from you;
c) charge a reasonable sum for work performed for which no sum has previously been paid; and
d) be deemed to be discharged from any further obligations under this agreement.
14. Force Majeure
14.1 Neither Party shall be liable for any delay or failure to perform its obligations pursuant to this agreement if such delay is due to Force Majeure.
14.2 If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party's obligations will be suspended.
14.3 If a delay or failure by a Party to perform its obligations due to Force Majeure exceeds sixty 60 days, either Party may immediately terminate the agreement on providing notice in writing to the other Party.
16. Severability and Waiver
16.1 The Agreement shall endure to the benefit of and be binding upon the successors, assigns, heirs, executors and administrators of the parties.
16.2 A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.
16.3 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.
16.4 If any provision of this agreement is held invalid, unenforceable or illegal for any reason, this agreement shall remain otherwise in full force.
17. Miscellaneous
17.1 This agreement and the transactions contemplated by this agreement are governed by the law in force in this State of Victoria.
17.2 You may not assign its rights and obligations under this agreement without our prior written consent.
17.3 These conditions and the other documents comprising the Agreement constitute the full and entire understanding between the parties with regard to the Agreement. Neither the Agreement nor any term of it may be amended or any term waived except in writing signed by the parties.
17.4 The Customer agrees that we may obtain access to, use and disclose information about the Customer, pursuant to the Privacy Act 1988 (Cth).