Terms and Conditions

1. GENERAL

  1. The Website is owned and operated by LEAD GEN ALLSTARS PTY LTD (ABN 38 635 308 057)and/or its associates, related parties, successors and assigns (collectively referred to as “Provider“, “us“, “we” or “our“).
  2. any persons viewing or otherwise accessing the Website (“Visitor“);
  3. any persons supplying in any way personal information (including name and email address) to the Provider through or in connection with the Website, whether by way of the Provider’s registration, contact or request forms or otherwise (“Registered User“); and
  4. any persons provided with an individual account (“Account“) for the management of services purchased by such persons from the Provider (“Clients“);
  5. All categories of users are collectively referred to as “Users“, “you” or “your” in this T&C.
  6. 2 The terms and conditions set below, the Privacy Policy and any other terms and conditions, notices and disclaimers displayed elsewhere on the Website apply to:
  7. 3 By becoming a User, you hereby acknowledge and agree to be bound by the T&C. This version represents the most current version of the T&C. In addition to the T&C, the supply of any and all services by the Provider to a Client is subject to the Terms of Service which may be viewed here.

2. ELIGIBILITY

  1. you are 18 years of age or older;
  2. you have the capacity to form a binding contract;
  3. you are not a person barred from accessing or using the Website under the governing laws of the T&C; and
  4. your access or use of the Website does not violate any applicable law or regulation.

3. DESCRIPTION OF THE WEBSITE

  1. The Website provides the following information, content, resources and other material (collectively, “Website Content“):
  2. various information on the Provider, its products and services, contact details and management team;
  3. tools for online domain name search and registration;
  4. various submission or request forms for enabling Users to pursue their enquiries with the Provider;
  5. articles on general topics of interest, including web designing articles;
  6. FAQ section; and
  7.  for Clients, the Manage My Account section enabling Clients to manage, update and revise their Account details and/or services purchased by them.
  8. The Website Content may further include other Provider communications such as service announcements and administrative messages communicated to Registered Users and Clients and are considered part of the terms of registration of the Website and service respectively.
  9. Unless explicitly stated otherwise, any new Website Content, features or applications offered or made available from time to time by the Provider through or in connection with the Website shall be subject to the T&C.

4. WEBSITE ACCESS AND USE

  1. In accessing and using the Website or any Website Content thereof, you expressly acknowledge and agree that:
  2. the Website is offered, supplied and provided on an “as-is” and “as available” basis, and the Provider assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any User communications or personalised settings;
  3. you understand that the Website may include software embodied therein now or in the future (“Software”) as well as security components that permit digital materials to be protected, and that your access and use of the Website are subject to Software usage rules set by the Provider and/or owners of proprietary Software. The Provider makes no warranty that any errors in the Software will be corrected;
  4. you are responsible for obtaining access to the Website and that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those fees and in addition, you must provide and are responsible for all equipment necessary to access the Website;
  5. you may not:
  6. forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or data transmitted through the Website;
  7. disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other Users are able to type, or otherwise act in a manner that negatively affects other Users’ ability to engage in real time exchanges;
  8. interfere with or disrupt the Website or servers or networks connected to the Website or disobey any requirements, procedures, policies or regulations of networks connected thereof;
  9. take any action that places an unusually large load on the infrastructure of the Website, or bandwidth connecting to the Website, or take any action that includes the use of any data accumulation, tool, robot or spider to compile, disseminate, extract, process, monitor or copy any web pages;
  10. intentionally or unintentionally violate any applicable local, state, national or international law; and
  11. attempt to override or circumvent any of the usage rules embedded into the Software or those provided herein.
  12. subject to Clause 9, any material downloaded or otherwise obtained through the Website is done at your own discretion and risk. You will solely be responsible for any damage to your computer system or loss of data that results from the download of the same.

5. WEBSITE HOSTING

  1. Your website will be built using a custom CMS (Content Management System).
  2. The website can only be hosted in the CMS platform using AWS (Amazon Web Service).
  3. In the event of the custom leaving Octopus Digital the website files (images, javascript and CSS) can exported to allow for the website to be re-built in another platform.

6. WEBSITE CONTENT

  1. In viewing the Website Content displayed on the Website, you expressly acknowledge and agree that:
  2. all Website Content compiled by the Provider and all other information and materials posted on the Website or communicated to you from time to time by the Provider are provided for guidance or as reference tools only;
  3. NO advice relating to the subject matter of such Website Content is understood to be given to you by the Provider;
  4. under no circumstances will the Provider be liable in any way for any Website Content, including, but not limited to, for any errors or omissions in any Website Content, or for any loss or damage of any kind incurred as a result of the use of any Website Content posted, emailed, transmitted or otherwise made available through or in connection with the Website. You are not entitled to rely and/or act upon such Website Content and/or use them as a basis for any cause of action in law or otherwise;
  5. the Website Content may be subject to change without notice and does not take into account your objectives, personal or commercial situation, requirements or needs, or any statutory obligations or requirements which may be required to be observed in your state or jurisdiction;
  6. to the fullest extent of the law, the Provider expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to any warranty of merchantability, fitness for a particular purpose or correspondence to particular descriptions in respect of any Website Content displayed on the Website; and
  7. no advice or information, whether oral or written, obtained by you from the Provider or through or from the Website shall create any warranty not expressly stated in the T&C.

7. DATA AND CONTENT INPUT

  1. For the purposes of this Clause, “User Content”means any and all:
  2. any personal information provided by you in a registration, subscription, request or subscription form (collectively “Registration Data“); and
  3. any other data or materials you upload, post, email, transmit or otherwise make available through or in connection with the Website.
  4. User Content shall also include any personal or business information provided, revised or updated by a Client through or in connection with the Client’s Account (“Client Data“).
  5. You expressly acknowledge, agree and warrant that:
  6. you are solely and entirely responsible for your User Content;
  7. all Registration Data or Client Data which is submitted by you to the Provider through or in connection with the Website is true, accurate and current, and is complete in all respects;
  8. you shall update any changes to your Registration Data or Client Data as soon as practicable; and
  9. you shall not upload, post, email, transmit or otherwise make available through or in connection with the Website or your Account (if applicable) any User Content that:
  10. is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, pornographic, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
  11. you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
  12. infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
  13. comprises unsolicited or unauthorised advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, except in those areas that are designated for such purpose;
  14. contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or
  15. purports to impersonate any other person or entity, including, but not limited to, any other User, the Provider’s official, employee, consultant, guide, host or any other representative, or falsely state or otherwise misrepresent your affiliation with any person or entity.
  16. You also expressly acknowledge, agree and warrant that the Provider:
  17. shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or remove any User Content that is made available by you through or in connection with the Website or your Account (if applicable); and
  18. may access, preserve, and disclose all User Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to:
  19. comply with legal process;
  20. enforce the T&C;
  21. respond to your requests for customer service; and
  22. protect the rights, property, or personal safety of the Website, other Users and/or the public.
  23. You understand that the technical processing and transmission of all User Content submitted or posted by you may involve:
  24. transmissions over various networks; and
  25. changes to conform and adapt to technical requirements of connecting networks or devices.
  26. The Provider does not claim ownership of any User Content you submit or upload through or in connection with the Website. However, with respect to such User Content, you hereby agree that you shall grant the Provider the following worldwide, sub-licensable, perpetual, transferable, royalty free and non-exclusive license (“License”) to use, distribute, reproduce, modify, adapt, publicly display the said User Content on the Website (excluding any personal information given by you as part of your Registration Data or Client Data), in whole or in part, and to incorporate the data or material into any proprietary works of the Provider in any format or medium now known or later developed for any purposes, including for the purposes of:
  27. providing and promoting specific Website initiatives;
  28. compiling statistical references for improvement of the Website or for use with any other initiatives, including initiatives by the Provider, any affiliates or any third parties; and
  29. any other commercial or non-commercial ventures of the Provider or such affiliates or third parties.

7. CLIENT ACCOUNT

  1. As a Client, you will be required to create an Account when services are first purchased by you. Accordingly, you will be given an Account designation by, and will receive a password from, the Provider.
  2. You expressly acknowledge, agree and warrant that:
  3. You are responsible for maintaining the confidentiality of the Account and is fully responsible for all activities that occur under the same;
  4. you will keep secure any passwords used with the Account;
  5. except to the extent that any personnel or authorised users of the Client is required to be informed on a “need to know” basis, you will not reveal to any persons any administration tools contained in the Account;
  6. you will immediately notify the Provider of any unauthorised use of the Account or passwords or any other breach of security;
  7. you will ensure that you or your personnel or authorised users accessing the Account will log out from the same at the end of each session; and
  8. you will ensure that all contact details are kept current and updated at all times. Any notification affecting the Provider’s services will be made to the contact details kept in the Account.
  9. The Provider shall not be liable for any loss or damage arising from your failure to comply with this Clause.
  10. EXCLUSION OF LIABILITY
  11. You expressly understand and agree that the Provider, its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees shall not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for loss or profits, goodwill, use, data or other intangible losses, even if the Provider has been advised of the possibility of such damages, resulting from:
  12. the accessing of, or the inability to access, the Website, the use of, or the inability to use, or the reliance, or the inability to rely, on the Website Content;
  13. unauthorised access to or alteration of any of your transmissions or data, including any User Content; and
  14. any other matter relating to the Website or Website Content displayed on the Website or communicated to you.

8. INDEMNITY

  1. You agree to fully indemnify, defend and hold the Provider, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any and all claims or demands, liabilities, damages, losses, costs and expenses, including reasonable attorneys’ fees, made by any third party due to or arising out of your:
  2. access and use of the Website or any Website Contents thereof;
  3. connection to the Website;
  4. violation of the T&C; or
  5. violation of any rights of another.

9. PROPIETARY RIGHTS

  1. All copyright on the Website or embodied in any Website Content displayed on the Website is owned by the Provider or its proprietary holders, and you are required to abide by all copyright notices contained on the Website.
  2. Except to the extent otherwise specifically authorised by the Provider and/or the proprietary holders:
  3. you may not copy, modify, translate, publicise, reproduce, exploit, broadcast, transmit, distribute, perform, display or sell any of, or any portion of, any or all Website Content of the Website, or create any derivative works thereof, and you may not use any of the Website Content in connection with any commercial endeavours, whether in whole or in part;
  4. you may only retrieve and display any Website Content on a computer screen, print individual pages on paper, photocopy and store such pages in electronic form on disc (but not on any server or other storage device connected to a network) solely for your personal use; and
  5. you may not alter the text, graphics, images, audiovisual or any other materials contained on the Website or embodied in any Website Content.
  6. Any unauthorised reproduction, publication, further distribution or public exhibition of the Website or all Website Content contained therein, in whole or in part, is strictly prohibited.
  7. In addition, the Website domain name, the Provider’s name, logo, other names and logos of the Provider as may be created, produced or used from time to time (“Marks”) are trademarks or registered trademarks of the Provider and its affiliated companies. Without express and written prior permission, you agree not to display or use in any manner the Marks for any purpose whatsoever.
  8. SPECIAL ADMONITION FOR INTERNATIONAL USE
  9. The Website is provided for the benefit of, and is intended to be viewed by, Users within Australia only. If you are viewing the Website on a computer outside Australia, you expressly acknowledge, agree and warrant that:
  10. in choosing to access and use the Website outside Australia, you are solely responsible for complying with the laws applicable in your jurisdiction;
  11. the Provider shall not incur any liability to you whatsoever with respect to your access and use of the Website; and
  12. you shall indemnify the Provider against any and all liability the Provider may have in relation to any third party for any reason whatsoever arising out of your use of the Website.

10. GENERAL PRACTICES REGARDING USE AND STORAGE

  1. You expressly acknowledge and agree that:
  2. the Provider may establish general practices and limits concerning use of the Website, including without limitation the maximum number of days and months that any data submitted by you will be retained by the Website, the maximum amount of information that may be submitted by you and the maximum number of times and the maximum duration for which you may access any Website Content on the Website or your Account (where applicable) in a given period of time;
  3. the Provider has no responsibility or liability for the deletion or failure to store any descriptions, work, portfolio, profile, or other information or communication posted by you, or obtained or procured from or through the use of the Website; and
  4. the Provider reserves the right to modify these general practices and limits from time to time.

11. MODIFICATIONS TO THE WEBSITE, WEBSITE CONTENT AND AND T&C

  1. The Provider reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Website or any part thereof, including the provision of any Website Content, with or without notice to you. You agree that the Provider shall not be liable to you or to any third party for any such modification, suspension or discontinuance of the Website or any part thereof.
  2. The Provider reserves the further right to make any amendments to the T&C at any time in its sole and absolute discretion, with or without notice to you. The most current version of the T&C as posted on this page shall supersede all previous versions.
  3. It is your responsibility to check regularly to determine whether a new version of the T&C has been uploaded. If you do not agree to any revisions pursuant to the upload of a new version of the T&C, then you must immediately stop using the Website.
  4. You agree that the Provider shall not be liable to you or to any third party for any such modification, suspension or discontinuance of the Website, and/or amendments to the T&C. Your continued use of the Website after such modifications or amendments shall constitute an acceptance of your agreement to be bound by the T&C, as amended.
  5. SUSPENSION AND TERMINATION
  6. You agree that the Provider may, under certain circumstances and without prior notice, suspend or immediately terminate your access to the Website and remove any associated User Content, including any profiles, works, information or contact details thereof.
  7. Cause for such suspension or termination shall include, but not be limited to:
  8. breaches or violations of the T&C, Privacy Policy and/or any other agreements entered into between you and the Provider;
  9. requests by law enforcement or other government agencies;
  10. discontinuance of the Website (or any part thereof); and
  11. unexpected technical or security issues or problems.
  12. You agree that all such suspensions or terminations shall be made at the Provider’s sole discretion and that the Provider shall not be liable to you or any third party for any such suspension or termination.

12. REFUNDS ON TERMINATION

  1. Provider provides full (100%) refund only if notice of termination is received in 15 calendar days after the payment and no work has started.
  2. In case of any other refunds requested after the 15 calendar days, Provider reserves the right for a partial refund (5% Admin fees plus number of hours worked), if and only if Provider’s staff have worked on your project including but not limited to research, meetings, creation of documentation, layout creation, hosting set up and phone calls with you.

13. PAYMENTS DURATION AND TERMINATION FOR PAY MONTHLY WEBSITE

  1. The rights and obligations of the Users under this Terms and Conditions shall take effect from the Commencement Date.
  2. In the consideration whereby users might want to terminate its deal with Octopus Digital, users agree to provide a 30 days written notice prior to this and pay out the remainder of the 24 month term.
  3. Any form of terminate either by the provider or by the users before the Expiry Date of 24 months, Users will be liable to pay an exit fee which is the remaining payments of the website left to complete the 24 months (that is, if the provider terminates a user or a user terminates its deal with Octopus Digital in the 12th months, the user hereby agree to complete the payments for the remaining 12 months left to make up 24 months).

14. OFF SITE LINK

  1. In order to offer increased value to our Users, the Website may provide, or third parties may provide, links to other Websites or resources, which you may access at your sole discretion.
  2. You understand and acknowledge the Provider has no control over such sites and resources. In this respect, you also acknowledge and agree that the Provider is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, services or other materials on or available from such sites or resources.
  3. You further acknowledge and agree that the Provider shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.

15. EMAIL POLICY

  1. We will not respond unless required to do so by law to any email sent to us which contains threatening, abusive, malicious, pornographic, obscene, defamatory or otherwise illegal or inappropriate material. We reserve the right to take such action as we in our sole discretion deem fit in respect of such material.
  2. All Emails received will be taken to be submitted, where appropriate, for publication, free of charge. If you wish to negotiate a fee for the publication of your exclusive material you should email us at info@octopusdigital.com.auand state your name, address and, if applicable, a contact telephone number, in your Email. Your Email should clearly state that the material contained in the Email has been submitted for the purposes of negotiating a fee for the publication of that material. It must not be sent to any other email address or to a User or to any other third party.
  3. We will not disclose any personal information under any circumstances of any staff, employee, contractor or worker of the Provider and/or the Provider’s associates. Where appropriate we will endeavour to respond to all Emails within 3 days of receipt, but we cannot and do not guarantee to respond to any Emails. All Emails will generally be stored for 6 months after which time they will automatically be deleted. Any Email sent to the incorrect destination is liable to be deleted immediately.

16. PRIVACY POLICY

  1. The use of any personal data collected from you is subject to our Privacy Policy, which is incorporated into this T&C by reference.

17. NO THIRD PARTY BENEFECIARIES

  1. You agree that, except as otherwise expressly provided in this T&C, there shall be no third party beneficiaries to this T&C, and that you may not assign your profile or registration to any other persons.

18. NOTICES

  1. If you choose to provide us with a nominated email address, unless you expressly inform us otherwise, the Provider may communicate with you by providing you with notices regarding updates, changes or additions to the Website or Services offered through or in connection with the Website.

19. GOVERNING LAW

  1. This T&C and any obligations arising out of or in relation to the T&C shall be governed by and construed in accordance with the laws of Victoria.

20. JURISDICTION

  1. You understand, agree and acknowledge that the courts of Victoria are to have exclusive jurisdiction to settle any dispute (including claims for set-off and counterclaims and disputes relating to any non-contractual obligations) which may arise out of or in connection with the T&C and for such purposes irrevocably submit to the jurisdiction of the aforesaid courts.

21. ENTIRE AGREEMENT

  1. The T&C constitute the entire agreement between you and the Provider and govern your access and use of, or purchase through or in connection with, the Website, superseding any prior agreements between you and the Provider.
  2. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other services of the Provider, affiliated services, third-party content or third-party software.

22. WAIVER AGREEMENT

  1. The failure of the Provider to exercise or enforce any right or provision of the T&C shall not constitute a waiver of such right or provision.
  2. If any provision of the T&C is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the T&C remain in full force and effect.

23. VIOLATIONS AND INFRINGEMENTS

  1. Any violations or infringement of the T&C should promptly be reported by the User by emailing the Provider
    at hello @ octopusdigital.com.au

Services Agreement

Definitions

“Detailed Specification”means the written specification of all of the software requirements to satisfy the Client’s functional requirements for the Website.“Excluded Matters”means commercial arrangements for which the Service Provider is not responsible and which are pre-requisite to the operation of the Website.“Intellectual Property”means intellectual property owned by the Service Provider and Client, of every sort, whether or not registered or registrable in any country, including intellectual property of kinds coming into existence after today; and including, among others, patents, trademarks, unregistered marks, designs, copyrights, software, domain names, discoveries, creations and inventions, together with all rights which are derived from those rights.“Phase”means one of the numbered stages in the Timetable.“Price”means the price for the Project or a part of the Project as set out in Schedule 1.“Project”means all work in connection with the design and writing of the Website, until the Website is fully operational with every dynamic element and every link fully functional.“Schedule”means a schedule to this agreement.“Website”means the Website of the Client, to be developed under the terms of this contract.“Website Documentation”means the instruction manuals user guides and other documentation agreed to be written by the Service Provider .“Website Host”means a firm or company in the business of hosting Websites, with whom the Client shall have contracted to host the Website.

1. Interpretation

In this agreement unless the context otherwise requires:

1.1 A reference to one gender shall include any or all genders and a reference to the singular may be interpreted where appropriate as a reference to the plural and vice versa.

1.2 A reference to a person includes a human individual, a corporate entity and any organisation which is managed or controlled as a unit.

1.3 A reference to a person includes reference to that person’s successors, legal representatives, permitted assigns and any person to whom rights and obligations are transferred or pass as a result of a merger, division, reconstruction or other re-organisation involving that person.

1.4 The headings to the paragraphs and schedules (if any) to this agreement are inserted for convenience only and do not affect the interpretation.

1.5 Any agreement by any party not to do or omit to do something includes an obligation not to allow some other person to do or omit to do that same thing.

1.6 In any indemnity, a reference to costs or expenses shall be construed as including the estimated cost of management time of the indemnified party

1.7 All money sums mentioned in this agreement are calculated net of GST, which will be charged when payment is due.

1.8 These terms and conditions apply to all work on the Project. They prevail over any terms proposed by the Client.

1.9 This agreement is made only in the English language. If there is any conflict in meaning between the English language version of this agreement and any version or translation of this agreement in any other language, the English language version shall prevail.

2. Basis of Contract

2.1 In entering into this contract the Client has not relied on any representation or information from any source except the definition and explanation of the services given on the Service Provider ’s Website.

2.2 For the Price and subject to the terms of this agreement the Service Provider hereby undertakes to complete the Project so as to satisfy the Detailed Specification outlined in the provided proposal.

2.3 So far as the Service Provider allows use of his Intellectual Property, he grants a licence to the Client for 80 years, limited to the terms set out in this agreement.

3. Representative liaison

3.1 With effect from today the Service Provider and the Client shall each nominate a representative who shall be authorised to make decisions relating to the Project and who shall be responsible for:

3.1.1 organising regular meetings at which they shall review the progress of the Project;
3.1.2 providing all information and documentation reasonably required by the other of them to enable completion of the Project.


4. Project management procedure

4.1 The Service Provider shall prepare the Detailed Specification and the Client shall provide to the Service Provider all information and other documents reasonably requested by the Service Provider for this purpose.

4.2 The Service Provider shall use all reasonable endeavours to complete the preparation of the Detailed Specification by the date set out in the Timetable or as soon thereafter as is possible and submit it to the Client.

4.3 The Client shall use all reasonable endeavours to complete the preparation of the Content by the date set out in the Timetable or as soon thereafter as is possible and submit it to the Service Provider for inclusion in the Website.

4.4 The Client shall within 7 [seven] days of receipt of the Detailed Specification notify the Service Provider of either:

4.4.1 Client approval as drawn; or
4.4.2 Client comments and/or requests for amendment as he shall reasonably judge appropriate.

If the Client fails to respond within said period he shall be deemed to have approved the Specification outlined in the proposal.

4.5 The Service Provider shall take account of all reasonable comments and/or requests for amendment received from the Client and shall incorporate them in a revised version of the Specification to be prepared and delivered to the Client as soon as is reasonably possible.

4.6 The process described above shall be repeated until the Client has approved (or is deemed to have approved) the Specification outlined in the proposal.

4.7 If the Client requires an amendment to the Specification to take account of any application function or performance criteria not previously specified then the Service Provider shall be entitled to make such revision to the Timetable and the Completion Date as he shall in the circumstances judge to be reasonably necessary.

4.8 The Service Provider and the Client agree to use all reasonable endeavours to complete the process of approval of the Detailed Specification by the date set out in the Timetable or as soon after as is possible.

4.9 The Client will use all reasonable endeavours to complete arrangements in respect of such of the Excluded Matters as are necessary to satisfy the pre-requisite requirements of this contract.

4.10 Delivery shall be effected for the purpose of this agreement only when the Website is complete and tested and fully operational on the server of the Website Host.

5. Content of Detailed Specification

The Detailed Specification shall include (among other things):

5.1 a list of browsers with which the Website will be compatible;

5.2 the Client’s functional requirements for the Website;

5.3 the Clients quantitative requirements for the Website;

5.4 the software languages, applications, and adaptations proposed to be used in the construction of the Website;

5.5 the bought-in software and plug-in sub-systems proposed to be used in the construction of the Website together with priced recommendations for sourcing such products;

5.6 the layout and content of the Reports;

5.7 any necessary administrator control panel or system;

5.8 a list of password protected files, specifying in each case, the function of the file, the password at start and the method of changing the password;

5.9 any necessary communications systems required with details of how they will operate;

6. Text modifications

6.1 The Service Provider shall notify the Client when the Website is substantially complete as to the text on the pages (even if the dynamic features are not yet complete) and shall provide open access (uncontrolled by any password or qualification) to the Client to all of the pages including error messages and other secondary pages.

6.2 The Client shall provide to the Service Provider a comprehensive list of text modifications in respect of all the pages.

6.3 The Service Provider shall make the modifications requested and shall charge the Client at the rate set out in Schedule 1 for html and web page construction.

7. Variations

7.1 The Client shall be entitled at any time prior to completion of the Project to request in writing the Service Provider to modify the design or functionality of the Website.

7.2 The Client shall provide the Service Provider with full particulars of any requested modification and such further information as the Service Provider shall reasonably require.

7.3 Within 3 [three] days of receipt of such a request the Service Provider shall inform the Client in writing whether such modification is technically feasible and shall inform the Client of:

7.3.1 the estimated number of additional hours of work;
7.3.2 any necessary alteration to the Timetable;
7.3.3 as are caused by the proposed modification.

7.4 If the Client elects to proceed with the modification within 3 [three] days of receipt of such information then the Timetable shall be amended in the manner indicated by the Service Provider.

7.5 If modification is requested after the Website has been substantially constructed the Service Provider may decline to accept the additional work until after completion of and payment for the Project, such additional work becoming the subject of a separate contract.

7.6 If the Service Provider modifies the whole or any part of the Website in accordance with this paragraph he shall make all appropriate related modifications to respectively the Detailed Specification and the Website Documentation so that both of these documents accurately reflect the finished version of the Website.

7.7 Additional fees may occur if there are changes to the project scope by the client after the proposal has been agreed upon. Examples of these changes include but are not limited to,
additional web pages which require a new design or copy needing rewriting due to a change in business direction.

8. Testing and acceptance

8.1 The testing shall take place either on a test site or a site published to the World.

8.2 The Service Provider shall test the functioning of the Website.

8.3 If any fault or “bug” is found the Service Provider shall undertake such further work as is necessary until the testing procedure is satisfied.

8.4 Within 7 [seven] days, the Client shall inform the Service Provider of any deficiencies in the operation of the Website and in the absence of any such notification, the Client is deemed to have accepted the Website.

8.5 The Project is complete after:

8.5.1 the testing procedure has demonstrated satisfactory efficiency;
8.5.2 the Website is published on the server of the Website Host;
8.5.3 updated versions of the Specification and the Website Documentation have been handed to the Client in soft copy;

9. Demonstration and training

9.1 Immediately upon publication of the Website, the Service Provider will provide 4 [four] hours explanation, demonstration and training in the operation of all aspects of the Website for such staff as the Client shall direct and in a format agreed by the Client.

9.2 The Service Provider shall provide such further training as the Client may request within 12 [twelve] months of the date of completion of the Project at the hourly rate set out in Schedule 1. Such training shall be provided by a person fully conversant with the Website.

10. Exclusions from contract

The Excluded Matters are:

10.1 Registration of necessary domain names;

10.2 Arrangement of merchant server banking and payment Service Provider facilities;

10.3 Contracting for web hosting services and the provision of appropriate fire walls;

10.4 Supply new or change existing Client e-mail message system;

10.5 Purchase of any necessary computer hardware and software;

10.6 Search engine optimisation beyond that specified in this agreement.

10.7 Newsletter (EDM) design or development.

11. Confidentiality

11.1 The parties are aware that in the course of the Project they will each have access to and be entrusted with information in respect of the business and operation of the other and their dealings, transactions and affairs, all of which information is or may be confidential.

11.2 The parties hereby undertake for themselves and every employee or sub-contractor whose services they may use both during and after completion of the Project that they will not divulge to any person whatever or otherwise make use of (and shall use their best endeavours to prevent the publication or disclosure of) any trade secret or confidential information.

11.3 For the purposes of the Client’s above undertaking, the information shall be deemed to include all information (written or oral) concerning the Detailed Specification and the Search Engine Strategy Specification.

11.4 Each of the Service Provider and the Client hereby undertakes to the other to make all relevant employees’ agents and sub-contractors aware of the confidentiality of information and the provisions of this paragraph and to take all such steps as shall from time to time be necessary to ensure compliance by its employee’s agents and sub-contractors with these provisions.

11.5 Each of the Service Provider and the Client hereby undertakes to the other that for the period of 12 [twelve] months following completion of the Project they will not directly or by an agent or otherwise and whether for themselves or for the benefit of any other person induce or endeavour to induce any officer or employee of the other to leave his employment.

11.6 The provisions of the last previous sub paragraph shall not apply to one of them if the other becomes subject to bankruptcy, receivership or liquidation proceedings.

12. Third party software rights

12.1 If the Service Provider incorporates or embeds third party software products in the Project then such products will so far as possible be properly licensed to the Client, with full and appropriate legal documentary evidence in support and any money payable to a third party shall be paid by the Service Provider . Any license fees payable by the Client to any third party for software incorporated in the Website but not previously used by the Client shall be paid by the Service Provider unless included in the Price specification set out in Schedule 1.

12.2 Insofar as the terms of business of a third party seller of software do not permit the above arrangement, then the Client shall himself buy the software concerned whereupon the Service Provider shall have no obligation in respect of the software except to warrant that it functions as a part of the Website.

12.3 Insofar as it is impractical to follow the procedure set out above, then the Service Provider shall be deemed to be the agent of the Clients for the purpose of buying such software. In this event, the Service Provider will advise the seller by e-mail, with copy to the Client that the software has been purchased for use by the Client. The Service Provider will provide full contact details to the seller. It shall be the responsibility of the Client to retain the copy of the e-mail message by the Service Provider.

13. Intellectual property ownership

Software code and graphic images owned by a third party are not affected by this agreement. During and after completion of the contract, and payment has been rendered, and unless otherwise specified in this agreement ownership of other intellectual property used in the assignment or arising out of it, shall be as follows:

13.1 Website concepts belong to the Client.

13.2 Website designs used in the Website belong to the Client.

13.3 Website designs not used belong to the Service Provider.

13.4 Graphic images provided by the Service Provider belong to the Client unless the Service Provider expressly states that ownership is retained by him.

13.5 Software code written by the Service Provider prior to the date of this agreement and incorporated in the Website belongs to the Service Provider.

13.6 Code written specifically for the Website belongs to the Client.

13.7 Software elements being components previously developed by the Service Provider belong to Service Provider.

13.8 The Service Provider now grants an exclusive license to the Client for all items listed above and owned by them, for use in connection with any Website the Client might own or use for a period of 99 [ninety nine] years. The Client may not assign this licence except by way of sale or transfer of the whole of the Website.

14. Intellectual property rights indemnity by Client

The Client hereby agrees to indemnify the Service Provider against all claims and costs arising:

14.1 in any connection with the Content supplied by the Client;

14.2 out of any failure by the Client to comply with any law;

14.3 from a breach by the Client of this agreement.

15. Disclaimers and limitation of liability

15.1 This paragraph applies so far as the applicable law allows.

15.2 All implied conditions, warranties and terms are excluded from this agreement.

15.3 The Service Provider knows nothing about the business of the Client. Accordingly he is not responsible for:

15.3.1 the instructions given by the Client in connection with the Project or any issue that arises as a result of any work done by the Service Provider as instructed by the Client;
15.3.2 the functionality or profitability of the Website as a business;
15.3.3 the text or graphics or other content on the Website;
15.3.4 compliance of the Website with any law or code of practice.

15.4 This paragraph (and any other paragraph which excludes or restricts the liability of the Service Provider) also applies to the directors, officers, employees, subcontractors, agents and affiliated companies of the Service Provider as well as to the Service Provider.

15.5 The following provisions set out the Service Provider ’s entire liability (including any liability for the acts and omissions of its employees) to the Client in respect of:

15.5.1 any breach of his contractual obligations arising under this agreement; and
15.5.2 any representation, statement or tortious act or omission including negligence arising under or in connection with this agreement.

And the Client’s attention is drawn to these provisions.

15.6 Any act or omission on the part of the Service Provider, falling within this paragraph shall be known as an ‘Event of Default’.

15.7 The Service Provider’s entire liability in respect of any Event of Default shall be limited to damages of an amount equal to the total price paid by the Client for this Project.

15.8 The Service Provider shall not be liable to the Client in respect of any Event of Default for loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Client as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Service Provider had been advised of the possibility of the Client incurring the same.

15.9 If a number of Events of Default give rise to substantially the same loss then they shall be regarded as giving rise to only one claim under this agreement.

15.10 The Client hereby agrees to give the Service Provider not less than 28 [twenty eight] days in which to remedy any Event of Default hereunder.

15.11 The Service Provider shall have no liability to the Client in respect of any Event of Default unless the Client shall have served notice of it on the Service Provider within three months of the date he became aware of the circumstances giving rise to the Event of Default or the date when he ought reasonably to have become so aware.

15.12 Nothing in this paragraph shall confer any right or remedy upon the Client to which he would not otherwise be legally entitled.

15.13 The Service Provider shall not be liable to the Client for loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of this agreement.

15.14 In no event shall The Service Provider be liable to The Client for any lost profits or for any incidental, punitive, indirect, special or consequential damages (including, without limitation, damages for loss of business, loss of profits, business interruption, loss of data, lost savings or other similar pecuniary loss), however caused and under any theory of liability (including negligence) and whether or The Service Provider has been advised of the possibility of such damage. In no event shall The Service Provider ’s aggregate liability for damages arising out of or related to this agreement exceed the fees paid by The Client in the twelve (12) months prior to the date on which the claim arose. The Service Provider does not warrant that client’s use of the software will be error-free.

16. Delay by Customer

16.1 In circumstances where the service provider has provided the customer with detailed specifications, timetable, content, and draft website or other matters for the customer's review and the customer has not provided instructions within one month of provision of the last communication from the service provider, and then seeks to resume a project after this time, the customer agrees to pay additional costs, over and above the price quoted for the completed website.

16.2 Additional costs will be a reigniting fee of $375 (inclusive of gst) for a delay of more than one months.

16.3 If the service provider has provided any or all of the items set out in 16.1, and the customer has not gone live within 12 months of the date that the last items were provided then the service provider may terminate the project, and any money paid up to and including the date of termination is not refundable and shall be retained by the service provider in lieu of the work performed.

17. Termination

This agreement may be terminated:

17.1 immediately by the Service Provider if the Client fails to pay any sum due within 30 [thirty] days of the date of submission of an invoice;

17.2 immediately by either party if the other commits any material breach of any term of this agreement and which in the case of a breach capable of being remedied is not remedied within 30 [thirty] days of a written request to remedy it;

17.3 immediately by either party if a trustee receiver administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration or bankruptcy order (otherwise than for the purpose of an amalgamation or reconstruction);

17.4 Any termination of this agreement by this paragraph shall be without prejudice to any other rights or remedies to which a party may be entitled.

18. Miscellaneous matters

18.1 The schedules, if any, to this agreement are part of the agreement and have the same force and effect.

18.2 No amendment or variation to this agreement is valid unless in writing, signed by each of the parties or his authorised representative.

18.3 If any term or provision of this agreement is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.

18.4 Neither party shall be entitled to assign this agreement nor all or any of their rights and obligations hereunder without the prior written consent of the other.

18.5 Any obligation in this agreement intended to continue to have effect after termination or completion shall so continue.

18.6 No failure or delay by any party to exercise any right, power or remedy will operate as a waiver of it nor indicate any intention to reduce that or any other right in the future.

18.7 The Client agrees that the Service Provider may disclose his information, including assigned IP numbers, account history, account use, etc. to any judicial or proper legal authority that makes a written request without further consent or notification to him.

18.8 Any communication to be served on either of the Parties by the other shall be delivered by hand or sent by first class post or recorded delivery or by fax or by e-mail.

It shall be deemed to have been delivered:

if delivered by hand: on the day of delivery;

if sent by post to the correct address: within 72 hours of posting;

If sent by fax to the correct number: within 24 hours;

If sent by e-mail to the address from which the receiving party has last sent e-mail: within 24 hours if no notice of non-receipt has been received by the sender.

18.9 In the event of a dispute between the parties to this agreement, then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation.

18.10 This agreement does not give any right to any third party, except that any provision in this agreement which excludes or restricts the liability of the Service Provider ’s directors, officers, employees, subcontractors, agents and affiliated companies, may be enforced under that act.

18.11 Neither party shall be liable for any failure or delay in performance of this agreement which is caused by circumstances beyond its reasonable control, including any labour dispute between a party and its employees.

18.12 In the event of any conflict between any term of this agreement and the provisions of the articles of a limited company or any comparable document intended to regulate any other corporate or collective body, then the terms of this agreement shall prevail.

18.13 The validity, construction and performance of this agreement shall be governed by laws of the State of Victoria, Australia. Any dispute arising in connection with this agreement shall be subject to the exclusive jurisdiction of the State of Victoria and Australian courts.
h3. Schedule 1

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