Unless otherwise agreed in writing, the supply of all Services offered by NOTHING BUT DIGITAL (ABN 46 625 565 488) and/or its associates, related parties, successors and assigns (collectively referred to as “Provider“) to all Clients, as the term is defined in 2.1(c) below, shall be governed by these Terms of Service (“Terms“) set herein.
1. Definitions
1. In these Terms, the following terms have the following meanings:
1.1 Account means the account designated by the Provider for the access, use and administration of the Services on the Online Client Portal of the Website;
1.2. Client means the individual or organisation whose details are listed in the applicable Proposal/Service Order Form as the purchaser of the Services;
1.3. Client Website means the website maintained or operated by the Client;
1.4. Client Website Content means any and all content uploaded, posted, transmitted, emailed or otherwise made available on or through a Client Website;
1.5. Client Website Copywriting Service means the provision of website content service supplied by the Provider in respect of a Client Website;
1.6. Client Website Design and Development Service means the website design and development service supplied by the Provider in respect of a Client Website;
1.7. Client Website Hosting Service means the website hosting service supplied by the Provider in respect of a Client Website;
1.8. Client Website Maintenance Service means the website technical and programming maintenance service supplied by the Provider in respect of a Client Website;
1.9. Confidential Information means, with respect to a party to these Terms:
1.9.1. all intellectual property rights, trade secrets, each party’s business, products and services, finances, customer names, sales figures, employee details, pricing methodologies, and any other information relating to each party’s internal operations, plans, policies, and practices and transactions in whatever media;
1.9.2. other information identified in writing as confidential by either party; and
1.9.3. translations, enhancements, corrections, modifications, derivative works, copies, forms, embodiments and additions of and any of the foregoing;
2. Development Service Links means a final staging web link to the Client Website developed by the Provider;
3. Domain Name Service means the domain name search, registration, parking and renewal service supplied by the Provider;
4. Email Marketing Service means the email marketing service or software provided by the Provider;
5. Pay Per Click Advertising Service means the consulting service supplied by the Provider in respect of online advertising through third party search engines or websites or on Client Websites where costs are incurred or income is earned based on the number of visitors clicking on applicable advertisements;
6. Provider’s Website means www.nothingbutdigital.com.au;
7. Service End Date means:
7.1. with respect to all Services other than Client Website Design and Development Service, the last date of Service Period; and
7.2. with respect to the Client Website Design and Development Service, seven (7) days after the Provider supplies the client with the development server links for client’s acceptance and testing;
8. Service Fees and Charges means the fees and charges payable by the Client in respect of a specified Service as specified in the applicable Proposal/Service Order Form, including, without limitation, any applicable interest charges and Taxes thereof;
9. Proposal/Service Order Form means the order form required to be completed by the Client for the purchase of a specified Service which may be accessed from the Provider’s Website or is given to the Client by the Provider or the Provider’s employee, which details shall include, without limitation, the following specifications:
9.1. name, address, contact and email details of the Client;
9.2. Service scope of work or package selection;
9.3. Service Fees and Charges;
9.4. payment terms (upfront basis or by way of periodic or progress payments);
9.5. additional charges (if any);
9.6. other relevant specifications requested by the Client; and
9.7. with respect to the Client Website Design and Development Service:
9.7.1. applicable milestones reflecting the progress of the development of the Client Website; and
9.7.2. Client tasks;
10. Search Engine Optimization Service or SEO Service means the service provided by the Provider to improve the visibility of client’s website in a web search engine’s unpaid results;
11. Service Period means, with respect to each Service purchased by the Client, the duration that Service as specified in Clause 7;
12. Services mean the services to be supplied to the Client under these Terms and as specified in the applicable Proposal/Service Order Form;
13. Social Media Marketing Service means the service provided by the Provider that uses social media to market Client’s product or service;
14. Start Date mean the date of commencement of a Service as specified in the applicable Proposal/Service Order Form;
15. Systems mean the servers, networks, central systems and/or databases of the Provider or third party suppliers through which Client Websites are hosted under the Client Website Hosting Service supplied by the Provider;
15.1. Tax Invoice means an invoice issued by the Provider and submitted to the Client in respect of a specified Service;
15.2. Taxes mean any and all taxes, levies, duties, charges, including withholding taxes, penalties, fines or any other levies imposed by any statutory authority under any jurisdiction in connection with the performance of the Services and these Terms;
15.3. Users mean:
15.3.1. any persons visiting or viewing the Provider’s Website;
15.3.2. any Registered Users of the Provider’s Website; and
15.3.3. any other Clients using the Services.
2. Services
1. The Provider offers comprehensive website design and development, e-commerce solutions and digital marketing services for businesses and organisations. The Services supplied by the Provider include, without limitation, any or all of the following:
1.1. Client Website Design and Development Service, including:
1.1.1. creation of new Client Websites;
1.1.2. modifications and redesigns the design, layout or content of existing Client Websites;
1.1.3. development of content management system tools; and
1.1.4. provision of an e-commerce system;
1.1.5. provision of custom web application;
1.2. Client Website Hosting Service;
1.3. Client Website Maintenance Service;
1.4. Client Website Copywriting Service;
1.5. Domain Name Service;
1.6. Email Marketing Service;
1.7. Search Engine Optimization Service;
1.8. Social Media Marketing Service;
1.9. Pay Per Click Advertising Service;and
1.10. other new or improved services, functions, features, contents or facilities as offered from time to time.
2. In addition to the Services described in Clause 3.1, the Provider also offers technical support for Clients, including:
2.1. assistance on resolution of Client Website issues;
2.2. bug fixes; and
2.3. ‘how-to’ guidance.
3. Service Fees and Charges
1. Service Fees and Charges for each of the Services are set out on the Provider’s Website at https://www.nothingbutdigital.com.au/terms-of-use/ or as otherwise agreed in the Proposal/Service Order Form.
2. The Provider reserves sole and absolute right to vary such Service Fees and Charges and/or any promotions or discounts thereof, including provision of gratis Services, at any time, and the Provider shall not be obliged to provide any reasons whatsoever for such variation. Notification of all variations shall be given to the Client as soon as may be practicable subsequent to the said variation.
3. Any variations in the Service Fees and Charges shall only take effect on a new or renewed Service Period of the relevant Service.
4. Proposal/Service Order Forms and Subsequent Changes
1. The purchase of any or all Services by the Client shall be made through the appropriate Proposal/Service Order Form. Each Proposal/Service Order Form shall be deemed to incorporate the provisions of these Terms.
2. For the purposes of these Terms:
2.1. all Proposal/Service Order Forms submitted by the Client shall be deemed an offer by the Client to purchase Services in accordance with the specifications of the Proposal/Service Order Form and the provisions of these Terms;
2.2. the Provider shall not be bound by any Proposal/Service Order Forms and may at its sole discretion, review all specifications contained therein and by way of a written notice to the Client, reject or amend the same and/or reject the Proposal/Service Order Form in its entirety. Upon acceptance by the Provider, the Client shall be bound by all specifications set out in the Proposal/Service Order Form, subject to any approved rejections or amendments of the Provider; and
2.3. a contract for the supply of Services based on such specifications or modified specifications, as the case may be, and on the provisions of these Terms shall be deemed to have occurred when the Provider issues to the Client a Tax Invoice indicating its acceptance of the Client’s offer.
3. Any changes to the specifications subsequent to the deemed occurrence of the contract for the supply of Services under Clause 5.2 (5.2.3) shall be made by the Client only by way of a written request to the Provider and shall be effective only upon written acceptance of the request by the Provider.The Provider is entitled to accept, reject or modify any such requests for changes.
5. Payment of Service Fees and Charges
1. Service Fees and Charges for a Service must be paid on an ‘upfront’ basis made together with the submission of the applicable Proposal/Service Order Form by the Client. If only a portion of the Service Fees and Charges or a deposit payment for a Service is required to be made upfront with the remainder of the Service Fees and Charges payable on a progressive or periodic basis, such remainder shall be due and payable by the Client on the date of issue of the relevant Tax Invoice.
2. The Client agrees that for any payments made through American Express Cards and Diners Club Cards the Provider will levy a surcharge of 3.5% on the Service Fees and Charges.
3. The Client hereby authorises the Provider to charge the Client’s credit card as specified in the applicable Proposal/Service Order Form on each due date the amount due and payable by the Client under a Tax Invoice.
4. In addition to the Service Fees and Charges for each Service, the Provider shall be entitled to impose further charges in respect of the following:
4.1. any requests for changes made to a Proposal/Service Order Form by the Client and accepted by the Provider in accordance with Clause 5.3; and/or
4.2. excessive use of the Provider’s technical support service for reasons other than the fault or negligence of the Provider;
5. All Service Fees and Charges exclude Goods and Services Tax unless otherwise noted. Any Goods and Services Tax incurred in respect of a Service shall be charged by the Provider at the applicable rate and must be paid by the Client at the same time or together with the relevant Service Fees and Charges.
6. Service Period
1. Provided any payment as specified in the applicable Proposal/Service Order Form is made the Service Period for each Service purchased by the Client shall commence on the Start Date and shall end on the Service End Date specified in the applicable Proposal/Service Order Form.
2. Any renewal or cancellation of a Service shall be made in accordance with Clause 8 as noted therein for the applicable Service and any suspension or termination shall be in accordance with Clause 15. For any early termination, cancellation or suspension of service, no refunds whatsoever will be made to the Client, and the Provider will retain funds received.
7. Conditions for Purchasing the Services
1. General: The Client acknowledges and agrees that in agreeing to purchase, or in purchasing any or all of the Services, the Provider shall use its best endeavors to achieve the objective of the Client in availing a particular Service, however, the Client acknowledges that the Provider makes no representation or warranty as to merchantability or fitness for a particular purpose, including any representation or warranty that a Service:
1.1. will be uninterrupted or error free;
1.2. will meet the Client’s requirements, including, without limitation:
1.2.1. any requirements relating to access, use and/or operation of any of the Services supplied to the Client;
1.2.2. any requirements relating to design, hosting, administration and/or operation of a Client Website subsequent to the purchase and/or use of the Client Website Design and Development Service, the Client Website Hosting Service or the Domain Name Service;
1.2.3. any requirements relating to sales or profits, or lack of sales or profits thereof, as subsequent to the purchase of the Email Marketing Service or the Pay Per Click Advertising Service or SEO Service or Social Media Marketing Service; or
1.3. will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the Services or the Systems.
2. Client Website Design and Development Service: In agreeing to purchase, or in purchasing the Client Website Design and Development Service, the Client acknowledges and agrees that:
2.1. the Client must perform in a prompt manner all tasks assigned to the Client pursuant to the Proposal/Service Order Form or modified Service Order Form, as the case may be, together with any further tasks assigned to the Client pursuant to an agreed change to the specifications in accordance with Clause 5.3;
2.2. the Client must provide reasonable assistance and cooperation to the Provider in order for the design and development of the Client Website to be completed in a timely and efficient manner;
2.3. accordingly, the Provider shall not be deemed in breach of these Terms, any specifications contained in the Proposal/Service Order Form or any modifications or changes thereof, or any milestones or deadlines in the event of a failure by the Provider to meet its responsibilities and time schedules as a result of a delay caused by the Client;
2.4. the Client must ensure, at its sole cost and expense, that the Client’s current computer systems, including hardware, software, applications, features or functions support the operation of the Client Website developed by the Provider;
2.5. unless the Client Website Maintenance Service is purchased by the Client, the Client shall be responsible for initially populating and then maintaining any content or data on the Client Website;
2.6. unless the Client Website Copywriting Service is purchased by the Client must provide all Client Website Content within two (2) weeks of the Service Commencement Date under the relevant Service Order Form;
2.7. the Provider shall create the design and layout of the Client Website in substantial conformity with materials given to the Provider by the Client;
2.8. the Client must ensure that the prototype Website made available to the Client for the Client’s viewing for the duration of the development of the Client Website is kept confidential at all times. The Provider shall not be responsible for any breaches of confidentiality or security occurring as a result of the Client or any of the Client’s employees or representatives’ authorised or unauthorised disclosure of the prototype Client Website to third parties;
2.9. in developing the Client Website:
2.9.1. the Provider is authorised to use any pre-existing proprietary works owned by the Provider or its related entities, or use or purchase licences for the use of, proprietary works of third parties which are deemed necessary to ensure the proper functionality of the Client Website, including open source products, server-side applications, clip arts, “back-end” applications, music, stock images, or any other copyrighted work;
2.9.2. such usage is subject to the copyright notices of the Provider and third parties respectively which must be adhered to by the Client;
2.9.3. with the exception of the limited warranty given by the Provider in accordance with Clause 13.2 and to the extent permitted by law, the Provider makes no representations, warranties or conditions, whether expressed or implied, relating to the functionality, display, artistry, design or layout of the Client Website developed for the Client or that the Client Website will meet the requirements of the Client or that the operation of each page of the Client Website shall be uninterrupted or error-free. Accordingly, all Client Website Design and Development services are supplied on an “as-is” basis.
2.10. upon payment of 50% of the Service Fees and Charges, the client shall be entitled to cancel the Service prior to the client confirming the Specifications for the Service or within 10 days of the Order Date, whichever is earlier.
3. Client Website Hosting Service: In agreeing to purchase, or in purchasing the Client Website Hosting Service, the Client further acknowledges and agrees that:
3.1. all Client Websites are hosted on Systems operated by either the Provider or third party suppliers on behalf of the Provider. Accordingly:
3.1.1. scheduled and/or unscheduled System maintenance may be required to be performed by the Provider or the third party from time to time and such maintenance may necessitate Client Websites to be placed offline for a certain duration. The Provider shall endeavour to provide prior written notification of the maintenance but shall not be obliged to do so under these Terms;
3.1.2. the Provider may, but shall not be obliged to, archive Client Website Content using backup mechanisms on a regular basis for the purposes of disaster recovery and in the event of equipment failure or data corruption, the Provider may restore Client Website Content from its last known working archive. Notwithstanding the aforesaid, the Client acknowledges and agrees that:
3.1.2.1. it is the sole responsibility of the Client to maintain recent copies of all Client Website Content owned or managed and uploaded by the Client;
3.1.2.2. in the event of corruption of data maintained by the Provider or in the event of the Provider uploading an old archive, the Client has the sole responsibility of uploading its most current copy of Client Website Content in respect of its Client Website or Websites;
3.1.2.3. the Provider shall not be liable whatsoever for any incomplete, out-of-date, corrupt or otherwise deficient Client Website Content recovered from the Provider’s backups;
3.1.3. the Provider or any third party suppliers may, in their absolute discretion, upgrade, revise or change any or all parts of the Systems, or may migrate from one System to another, at any time and from time to time. Neither the Provider nor any third party suppliers shall be liable whatsoever for any loss or damage resulting from such upgrade, revision, change or migration and the Provider shall not take any responsibility for any Services failure resulting from the same;
3.2. Client Websites are subject to the use of spam and virus filters maintained or operated by third party suppliers. The Provider shall not be liable whatsoever for any loss or damage resulting from the use of such spam or virus filters;
3.3. in uploading, posting, emailing, transmitting or making available in any other way any Client Website Content through or in connection with a Client Website hosted on the Systems:
3.3.1. the Client must conduct such tests and computer virus scanning as may be necessary to ensure that any and all Client Website Content uploaded to the Systems do not contain any computer virus and will not in any way, corrupt the data or systems of any User;
3.3.2. the Client must not upload, post, email, transmit or otherwise make available:
3.3.2.1. any Client Website Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, pornographic, obscene, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
3.3.2.2. any Client Website Content that the Client does 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);
3.3.2.3. any Client Website Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
3.3.2.4. any Client Website Content comprising 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;
3.3.2.5. any Client Website Content containing 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
3.3.2.6. any Client Website Content purporting 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 the Client’s affiliation with any person or entity; and
3.3.3. the Client bears the sole responsibility to immediately rectify any Client Website Content uploaded, posted, emailed, transmitted or in any other way used in error or in breach of any provisions herein;
3.3.4. the Client further bears the sole responsibility for all transactions or dealings made or entered into with any third parties as a direct or indirect result or consequence of any Client Website Content;
3.3.5. without incurring any liability to the Client and at the Client’s sole cost and expense:
3.3.5.1. the Provider shall have the right (but not the obligation) in their sole discretion to remove any Client Website Content uploaded, posted, emailed, transmitted or otherwise made available on the Systems which may, in the Provider’s sole opinion, be in breach or any provisions herein; and
3.3.5.2. the Provider may access, preserve, and disclose all Client Content supplied by the Client if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to:
3.3.5.2.1. comply with legal process;
3.3.5.2.2. enforce these Terms;
3.3.5.2.3. respond to the Client’s requests for technical support; and
3.3.5.2.4. protect the rights, property, or personal safety of the Systems, Users and/or the public.
3.3.5.3. the Client is strictly prohibited from using excessive amounts of CPU processing or excessive bandwidth, disk space and other resources on the Provider’s Systems which is inconsistent with normal usage patterns and which exceeds the amount purchased by the Client. Any violation of this Clause may result in corrective action by the Provider, including assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement in accordance with Clause 15, which actions may be taken at the Provider’s sole and absolute discretion;
3.3.5.4. the Client grants the Provider a non-exclusive, royalty-free, worldwide license of the duration of the Service Period or any renewals or extensions thereafter, to do any or all of the following to the extent necessary to perform the Services:
3.3.5.4.1. digitise, convert, install, upload, select, order, arrange, compile, combine, synchronise, use, reproduce, store, cache, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Client Website Content; and
3.3.5.4.2. make archival or back-up copies of the Client Website and Client Website Content.
3.3.5.5. that at the expiry of the current Service Period, any of the Services purchased by it, apart from Client Website Design and Development Service, will be automatically renewed for the term equivalent to the Service Period (‘Renewed Service Period’):
3.3.5.5.1. the Client may anytime during the Renewed Service Period give a written notice to the Provider for the discontinuance of the Service;
3.3.5.5.2. such notice shall take effect at the end of the monthly cycle of Service;
3.3.5.5.3. payment for the Service Fees and Charges in respect of Renewed Service Period must be paid in accordance with Clause 6; and
3.3.5.5.4. these Terms shall remain valid and in force for the entire duration of the Renewed Service Period.
3.3.6. the Client shall not be entitled to cancel or downscale a Service at any time before the expiry of the current Service Period and if the Client intends to cancel the Service prior to Service End Date the Client must pay any unpaid Service and Fees Charges in respect of the current Service Period of that Service as agreed.
4. Domain Name Service: In agreeing to purchase, or in purchasing the Domain Name Service for parking a domain name, the Client acknowledges and agrees that:
4.1. the Provider may point the domain name or its domain name server to any of the Provider or the Provider’s affiliates’ web pages;
4.2. the Provider and/or its affiliates may place advertising on the Client’s parked page; and
4.3. the Client shall have no rights or entitlements, and shall waive all rights and entitlements, to receive any compensation whatsoever from the Provider and/or its affiliates’ use of the said page for their commercial gain.
4.4. upon payment of 100% of the Service Fees and Charges, the client shall be entitled to cancel the Service.
5. Pay Per Click Advertising Service: In agreeing to purchase, or in purchasing the Pay Per Click Advertising Service, the Client acknowledges and agrees that:
5.1. the Provider will setup online advertising campaigns and deliver Google paid search traffic to Client’s website. In the event, paid search traffic cannot be delivered to the Client’s Website due to the editorial policies of search engines regarding the acceptance of advertiser web properties, the Provider will notify the Client of same.
5.2. the Provider will not be liable for any loss or damage the Client may suffer as a result of the circumstances referred in clause 8.5.1
5.3. the Provider will charge the Client such further fee as the relevant search engine may charge in relation to Pay Per Click Advertising Service. For the avoidance of doubt the fee payable by the Client pursuant to this clause is in addition to the fees and charges payable by the Client as agreed in the Proposal/Service Order form.
5.4. that at the expiry of the current Service Period, any of the Services purchased by it, apart from Client Website Design and Development Service, will be automatically renewed for the term equivalent to the Service Period (‘Renewed Service Period’):
5.4.1. the Client may anytime during the Renewed Service Period give a written notice to the Provider for the discontinuance of the Service;
5.4.2. such notice shall take effect at the end of the monthly cycle of Service;
5.4.3. payment for the Service Fees and Charges in respect of Renewed Service Period must be paid in accordance with Clause 6; and
5.4.4. these Terms shall remain valid and in force for the entire duration of the Renewed Service Period.
5.5. the Client shall not be entitled to cancel or downscale a Service at any time before the expiry of the current Service Period and if the Client intends to cancel the Service prior to Service End Date the Client must pay any unpaid Service and Fees Charges in respect of the current Service Period of that Service as agreed.
6. Search Engine Optimization Services/ SEO Service: In agreeing to purchase, or in purchasing the Search Engine Optimization Services/ SEO Service, the Client acknowledges and agrees that:
6.1. the Client must provide all the information as requested by the Provider within seven days from the time the Provider requests for the information.
6.2. the Provider in providing the SEO Service shall use the best practice techniques as used in the industry.
6.3. the Provider does not control the algorithms of search engines and that results can vary based on Client’s website history, Client’s industry and several other factors.
6.4. the Provider in rendering the Service will provide links to other websites to rank the Client’s website for agreed keyphrases. The Client acknowledges that the Provider does not control these other websites and is not responsible for the content or accuracy of the information or other material on these other websites. Unless expressly agreed by the Provider, the provision of a link to an external website does not constitute an endorsement or approval of that website or any of the products or services on that website by the Provider. The Client must seek independent expert advice if it has any concerns regarding suitability of Services offered by the Provider.
6.5. that at the expiry of the current Service Period, any of the Services purchased by it, apart from Client Website Design and Development Service, will be automatically renewed for the term equivalent to the Service Period (‘Renewed Service Period’):
6.5.1. the Client may anytime during the Renewed Service Period give a written notice to the Provider for the discontinuance of the Service;
6.5.2. such notice shall take effect at the end of the monthly cycle of Service;
6.5.3. payment for the Service Fees and Charges in respect of Renewed Service Period must be paid in accordance with Clause 6; and
6.5.4. these Terms shall remain valid and in force for the entire duration of the Renewed Service Period.
6.6. the Client shall not be entitled to cancel or downscale a Service at any time before the expiry of the current Service Period and if the Client intends to cancel the Service prior to Service End Date the Client must pay any unpaid Service and Fees Charges in respect of the current Service Period of that Service as agreed. After the expiry of the minimum term, if the client wishes to cancel the service, at least 30 days’ notice is required.
8. Conditions for Using the Services
1. In using any or all of the Services, the Client acknowledges and agrees that it may not attempt to override or circumvent any of the usage rules embedded into the Systems or any parts thereof.
2. Subject to Clause 10, any materials downloaded or otherwise obtained through the Systems is done at the Client’s own discretion and risk. The Client will solely be responsible for any damage to the Client’s computer system or loss of data resulting from the download of the same.
3. Client must grant the Provider with reasonable direct and remote access to its website, and shall provide such other reasonable assistance as Provider may request, including, but not limited to, providing source code and other statistical, diagnostic information and other relevant information required to enable Provider to comply with its obligations under this Agreement.
4. The Client agree and acknowledges that the Provider will make changes to or update Client’s website to achieve optimum results for the Service availed by the Client. The Client must notify the Provider in writing if it does not agree for the Provider to make any changes or modification to the Client’s Website.
9. Intellectual Property Rights and Ownership
1. Systems and Services:
1.1. Save for any domain names purchased or owned by the Client and/or its related entities, the Client hereby acknowledges and agrees that:
1.1.1. neither these Terms nor the access and use of any of the Services supplied by the Provider and/or a third party supplier confer any proprietary rights whatsoever to the Systems and the Services, including any intellectual property rights embodied in any feature, operation, software, hardware or any other infrastructure or facilities or any improvements, enhancements, additions or upgrades thereof;
1.1.2. accordingly, all intellectual property rights, title and interests in the Systems and the Services, including any internet protocol (IP) address, belong exclusively to the Provider and/or the third party supplier;
1.1.3. in granting the access and use of the Services, the Provider and/or the third party supplier is only granting a limited non-exclusive licence for the duration of the Service Period in respect of the same; and
1.1.4. the Client may not copy, modify, ‘reverse-engineer’ or commercially exploit in any other way the Systems or the Services or any parts thereof.
2. Client Website Design, Layout and Content:
2.1. All intellectual property rights embodied in any and all designs, layout or content created or developed for, or supplied to, the Client by the Provider pursuant to the purchase of Client Website Design and Development Service are owned by the following:
2.1.1. with respect to pre-existing works described in Clause 8.2(i), by the Provider and/or the third party; and
2.1.2. with respect to the source code of the Client Website, by the Provider, subject to any prior third party rights and interests embodied in any parts of the source code, including source codes governed by the terms of a General Public License.
2.2. The Provider hereby agrees that upon full payment of all outstanding sums due and owing to the Provider pursuant to these Terms or any other agreements between the Provider and the Client, the Provider shall assign to the Client all proprietary rights, title and interests embodied in the custom design, layout and/or content of the Client Website.
3. All rights which are not expressly granted to the Client shall hereby be reserved by the Provider.
10. Relationship of Parties
1. Nothing in these Terms shall constitute or be deemed to constitute a partnership between the parties herein or constitute or be deemed to constitute the Client as an agent of the Provider for any purpose whatsoever.
2. The Client shall have no authority or power to bind the Provider or to contract in the Provider’s name or to create a liability against the Provider in any way or for any purpose.
11. Client General Warranties
1. The Client hereby represents and warrants that:
1.1. the Client is duly authorised to enter into these Terms in accordance with the method or form of authorisation required by its constitution or by applicable laws under its jurisdiction of formation or incorporation;
1.2. when executed, these Terms shall be legal, valid and binding on the Client, enforceable against the Client in accordance with its terms and conditions subject to all applicable laws, and will not violate or create a default under any law, rule, regulation, judgment, order, instrument, agreement or charter document binding on the Client and/or its property;
1.3. the Provider has not given to the Client, and the Provider hereby expressly disclaims to the maximum extent permitted by law, all conditions, warranties, representations, liabilities and obligations, whether express or implied, under these Terms or under any other communications between the parties;
1.4. the Provider shall not be liable for any direct or indirect, consequential or special loss or damages that may arise in respect of these Terms and that the Client has agreed to enter into these Terms based on its own judgment and discretion, and expressly disclaims any reliance upon any statements or representations made by the Provider;
1.5. there are no pending or threatened actions or proceedings before any court or administrative agency that could have a material adverse effect on performance of the Client’s obligations under these Terms, nor is the Client in default under any material loan, lease or purchase obligation; and
1.6. all information furnished, and to be furnished by the Client, shall be true, correct and complete.
12. Exclusion of Liability and Client Indemnity
1. Subject to the limited warranty under Clause 13.2 in respect of the Client Website Design and Development Service, the Provider, its subsidiaries, affiliates, officers, agents, cobranders or other partners and employees shall not be liable to the Client for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for:
1.1. damage to property;
1.2. loss of profits or revenue;
1.3. loss of data;
1.4. goodwill; and
1.5. any other tangible and intangible losses, even if the Provider has been advised of the possibility of such damages, resulting from or arising in connection with:
1.5.1. the Systems;
1.5.2. the Services, and the Client’s use thereof;
1.5.3. any Client Website Content, whether authorised or unauthorised and whether in original form or in any altered form thereof;
1.5.4. the results achieved, or unachieved, from the use of the Services.
2. The Provider hereby agrees, with respect to any Client Website Design and Development Service purchased by the Client, to provide the Client with a limited warranty for a duration of three (3) months, ending on the last day of the third (3rd) month of the relevant Service End Date. The warranty shall be subject to the following conditions:
2.1. the warranty shall be limited solely to locating and fixing any bugs occurring on the Client Website;
2.2. the warranty cannot be enforced if:
2.2.1. the Client updates or revises, or procures a third party entity to update or revise, the source code of the Client Website in any way other than through the use of content management system tools developed by the Provider; or
2.2.2. in the sole and absolute discretion of the Provider, the problem or issue is too severe to be fixed, such problem or issue having been caused by reasons beyond the control of the Provider, including by reason of the fault or negligence of the Client, its employees or any other representatives.
2.3. The Client 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 the Client’s:
2.3.1. access and use of, or connection with, the Systems;
2.3.2. use or misuse of any Services;
2.3.3. breach of any obligations under these Terms; or
2.3.4. violation of the rights of any person.
2.4. Subject to the provisions of these Terms, if for any reason, the Provider is liable to the Client for loss or damage of any kind, however caused, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to these Terms, such liability shall be limited only to the total Service Fees and Charges paid by the Client for the Services in the previous three (3) month period.
13. Notices
1. A party notifying or giving notice under these Terms must give notice:
1.1. in writing;
1.2. if directed at the Provider, to the postal address, fax number or email address specified on the Provider’s contact page at https://www.nothingbutdigital.com.au/contact or any other address as notified in writing by the Provider to the Client from time to time;
1.3. if directed at the Client, to the postal address, fax number or email address specified in the Client’s Account as updated from time to time;
2. A notice given in accordance with this Clause is received:
2.1. If left at the recipient’s address, on the date of delivery;
2.2. if sent by prepaid post, five (5) after the date of posting;
2.3. if sent by fax, when the sender’s facsimile system generates a message confirming successful transmission of the total number of pages of the notice; and
2.4. if sent by email, when the sender does not receive any failed delivery email notification from either its, or the recipient’s, mail server within five (5) days after the date of the email.
14. Suspension,Termination and Transfer
1. Suspension and Termination
1.1. the Provider may, without notice, suspend or terminate the Services or disconnect or deny the Client access to the Services:
1.1.1. during any technical failure, modification or maintenance involved in respect of the Systems or the Services;
1.1.2. if the Client fails to comply with any provision in these Terms (including failure to pay all Service Fees and Charges due and any other charges imposed in respect of the same), or do, or allow to be done, anything which in the opinion of the Provider, may have the effect of jeopardizing the operation of the Systems or the Services, until the breach (if capable of remedy) is remedied;
1.2. if a suspension or termination occurred by reason of Clause 15.1.1.2, reactivation of the Client’s Account or resumption of access and use of the Services shall be made entirely at the Provider’s discretion and on any terms and conditions as the Provider thinks fit, including the condition for payment of a reactivation fee;
1.3. the Client shall remain liable for all Service Fees and Charges due and payable throughout the period of suspension.
1.4. In the event of a suspension or termination for any reason whatsoever, the Provider shall be under no obligation whatsoever to provide the Client with any copies of Client Website Content or any other information, materials or data stored in the Client’s Account.
2. Transfer of Service
2.1. The Client agrees that the Service is non-transferable unless the Client obtains prior written confirmation from the Provider consenting to transfer the Service
2.2. The Client must provide such further information of the Transferee as the Provider may require to consider the financial ability of the Transferee to meet the Terms
2.3. The Provider may in its absolute discretion disagree to Transfer the Service.
15. Confidentiality
1. Each party agrees that all Confidential information which is exchanged between them under this agreement, is confidential and must not be disclosed, divulged or otherwise placed at the disposal of any person not being a party to this agreement except:
1.1. To employees, legal advisers, auditors and other consultants requiring the information for the purposes of this agreement; or
1.2. With the consent of the party who supplied the information; or
1.3. If the information is prior to the execution of this agreement, lawfully in the possession of the recipient of the information through sources other than the party who supplied the information; or
1.4. If required by law or a stock exchange regulations;
1.5. If the information is or becomes generally and publicly available other than through the default of a party who divulges the information;
2. The provisions of this clause continue in full force and effect for a period of 2 years after the termination of this agreement.
16. Assignment
The Client is not entitled to assign, dispose or in any way otherwise relinquish possession or control of all or any part of its obligations under these Terms.
17. Entire Agreement
These Terms shall represent the entire agreement between the parties and supersedes all previous agreements, terms, conditions, representations or claims which may have been made or agreed upon between the parties.
18. Governing Law
These Terms shall be governed exclusively by the laws of Victoria, and the parties hereby submit to the exclusive jurisdiction of the courts of that state.
19. Waiver and Severability
1. The failure of the Provider to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
2. If any provision of these Terms 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 these Terms remain in full force and effect.
