1. Acceptance of Terms
1.1 Unless otherwise agreed in writing, the supply of all Services offered by growthgenie Digital Pty Ltd (ACN 169 724 181) 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.
2.Definitions
- 2.1.1 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;
- 2.1.2 Client means the individual or organisation whose details are listed in the applicable Proposal/Service Order Form as the purchaser of the Services;
- 2.1.3 Client Website means the website maintained or operated by the Client;
- 2.1.4 Client Website Content means any and all content uploaded, posted, transmitted, emailed or otherwise made available on or through a Client Website;
- 2.1.5 Client Website Copywriting Service means the provision of website content service supplied by the Provider in respect of a Client Website
- 2.1.6 Client Website Design and Development Service means the website design and development service supplied by the Provider in respect of a Client Website;
- 2.1.7 Client Website Hosting Service means the website hosting service supplied by the Provider in respect of a Client Website;
- 2.1.8 Client Website Maintenance Service means the website technical and programming maintenance service supplied by the Provider in respect of a Client Website;
- 2.1.9 Confidential Information means, with respect to a party to these Terms:
- 2.1.9.1 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;
- 2.1.9.2 other information identified in writing as confidential by either party; and
- 2.1.9.3 translations, enhancements, corrections, modifications, derivative works, copies, forms, embodiments and additions of and any of the foregoing;
2.2 Development Service Links means a final staging web link to the Client Website developed by the Provider;
2.3 Domain Name Service means the domain name search, registration, parking and renewal service supplied by the Provider;
2.4 Email Marketing Service means the email marketing service or software provided by the Provider;
2.5 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;
2.6 Provider’s Website means www.growthgenie digital.com.au;
2.7 Service End Date means:
- 2.7.1 with respect to all Services other than Client Website Design and Development Service, the last date of Service Period; and
- 2.7.2 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;
2.8 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;
2.9 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:
- 2.9.1 name, address, contact and email details of the Client;
- 2.9.2 Service scope of work or package selection;
- 2.9.3 Service Fees and Charges;
- 2.9.4 payment terms (upfront basis or by way of periodic or progress payments);
- 2.9.5 additional charges (if any);
- 2.9.6 other relevant specifications requested by the Client; and
- 2.9.7 with respect to the Client Website Design and Development Service:
- 2.9.7.1 applicable milestones reflecting the progress of the development of the Client Website; and
- 2.9.7.2 Client tasks;
2.10 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;
2.11Service Period means, with respect to each Service purchased by the Client, the duration that Service as specified in Clause 7;
2.12 Services mean the services to be supplied to the Client under these Terms and as specified in the applicable Proposal/Service Order Form;
2.13 Social Media Marketing Service means the service provided by the Provider that uses social media to market Client‟s product or service;
2.14 Start Date mean the date of commencement of a Service as specified in the applicable Proposal/Service Order Form;
2.15 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;
- 2.15.1 Tax Invoice means an invoice issued by the Provider and submitted to the Client in respect of a specified Service;
- 2.15.2Taxes 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;
- 2.15.3Users mean:
- 2.15.3.1 any persons visiting or viewing the Provider‟s Website;
- 2.15.3.2any Registered Users of the Provider‟s Website; and
- 2.15.3.3 any other Clients using the Services.
3. Services
3.1The 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:
- 3.1.1Client Website Design and Development Service, including:
- 3.1.1.1 creation of new Client Websites;
- 3.1.1.2 modifications and redesigns the design, layout or content of existing Client Websites;
- 3.1.1.3 development of content management system tools; and
- 3.1.1.4 provision of an e-commerce system;
- 3.1.1.5 provision of custom web application;
- 3.1.2 Client Website Hosting Service;
- 3.1.3 Client Website Maintenance Service;
- 3.1.4 Client Website Copywriting Service;
- 3.1.5 Domain Name Service;
- 3.1.6 Email Marketing Service;
- 3.1.7 Search Engine Optimization Service;
- 3.1.8 Social Media Marketing Service;
- 3.1.9 Pay Per Click Advertising Service;and
- 3.1.10 other new or improved services, functions, features, contents or facilities as offered from time to time.
3.2In addition to the Services described in Clause 3.1, the Provider also offers technical support for Clients, including:
- 3.2.1assistance on resolution of Client Website issues;
- 3.2.2 bug fixes; and
- 3.2.3„how-to‟ guidance.
4.Service Fees and Charges
4.1 Service Fees and Charges for each of the Services are set out on the Provider‟s Website at https://www.growthgenie digital.com.au/terms-and-condition or as otherwise agreed in the Proposal/Service Order Form.
4.2 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.
4.3 Any variations in the Service Fees and Charges shall only take effect on a new or renewed Service Period of the relevant Service.
5. Proposal/Service Order Forms and Subsequent Changes
5.1 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.
5.2 For the purposes of these Terms:
- 5.2.1all 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;
- 5.2.2the 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
- 5.2.3 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.
- 5.3Any 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.
6. Payment of Service Fees and Charges
6.1 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. 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.
6.2 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.
6.3 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:
- 6.3.1any 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
- 6.3.2 excessive use of the Provider‟s technical support service for reasons other than the fault or negligence of the Provider;
6.4 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.
7.Service Period
7.1 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.
7.2Any 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.
8. Conditions for Purchasing the Services
8.1 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:
- 8.1.1 will be uninterrupted or error free;
- 8.1.2 will meet the Client‟s requirements, including, without limitation:
- 8.1.2.1 any requirements relating to access, use and/or operation of any of the Services supplied to the Client;
- 8.1.2.2 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;
- 8.1.2.3 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
- 8.1.3 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.
8.2Client 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:
- 8.2.1 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;
- 8.2.2 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;
- 8.2.3 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;
- 8.2.4 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;
- 8.2.5 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;
- 8.2.6 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;
- 8.2.7 the Provider shall create the design and layout of the Client Website in substantial conformity with materials given to the Provider by the Client;
- 8.2.8 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;
- 8.2.9 in developing the Client Website:
- 8.2.9.1 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;
- 8.2.9.2 such usage is subject to the copyright notices of the Provider and third parties respectively which must be adhered to by the Client;
- 8.2.9.3 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.
- 8.2.10 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 30 days of the Start Date, whichever is earlier.
8.3 Client Website Hosting Service: In agreeing to purchase, or in purchasing the Client Website Hosting Service, the Client further acknowledges and agrees that:
- 8.3.1 all Client Websites are hosted on Systems operated by either the Provider or third party suppliers on behalf of the Provider. Accordingly:
- 8.3.1.1scheduled 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;
- 8.3.1.2the 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:
- 8.3.1.2.1 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;
- 8.3.1.2.2 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;
- 8.3.1.2.3 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;
- 8.3.1.3the 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;
- 8.3.2 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;
- 8.3.3 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:
- 8.3.3.1 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;
- 8.3.3.2 the Client must not upload, post, email, transmit or otherwise make available:
