PERTH DIGITIAL EDGE TERMS OF BUSINESS
Unless otherwise defined herein, capitalised words and phrases used below have the meanings ascribed to them in clause 14 of these terms.
(a) These terms outline the terms and conditions under which Perth Digital Edge will provide you with the Services outlined in the Development Proposal.
(b) By signing these terms and the Development Proposal, you are entering into an agreement with Perth Digital Edge and agreeing to these terms.
- SCOPE OF SERVICES
(a) Perth Digital Edge will provide you with the Services set out in the Development Proposal.
(b) The scope of the Services is limited to the details provided in the Development Proposal, or otherwise agreed in writing.
(c) Unless otherwise specified, the Services do not include any Additional Services.
- STARTING WORK AND SUSPENSION OF SERVICES
We may, in our sole discretion, choose not to commence work, withhold delivery of, or suspend any Services until you have paid any Fees or deposit payable in respect of such Services.
- CHANGES TO SERVICES
If you request any changes to the Services, and we determine that such changes will require us to perform additional work or incur additional costs, we will:
(a) advise you of any additional fees payable;
(b) proceed with such changes when you confirm your agreement with the additional fees payable, and if applicable, pay those fees; and
(c) at our sole discretion, modify any delivery schedule or deadlines for the Services.
- SEARCH ENGINE OPTIMISATION (“SEO”) SERVICES
You acknowledge that the effectiveness of any SEO Services we provide may be affected by circumstances outside of our control, including:
(a) changes in the policies and/or ranking algorithms of search engines;
(b) changes to your accounts made by a party other than us including if the account is cancelled or disabled on a temporary or permanent basis; and
(c) the platform that is used by us to perform the SEO Services changing its functionality.
- WEBSITE DESIGN SERVICES
If the Services include web development services, including building or customizing websites (“Website Design”):
(a) we reserve the right to determine the choice of programming languages used in the Website Design;
(b) in the event that we are required to purchase a website domain on your behalf, we will not transfer ownership of that domain until you have made final payment for the domain to us;
(c) we only test websites on desktop resolution in the following web browsers: Apple Safari, Google Chrome, Microsoft Edge and Mozilla Firefox;
(d) any warranty we offer in relation to the operation of a website will not apply to any modifications you make to that website; and
(e) in accordance with clause 6, all new Material (as defined in that clause) will be retained by us until the Website Design Services are paid for in full.
You acknowledge and agree that:
- Some Services may rely on other services being provided by us. If a Service (the “Initial Service”) is reliant on another service and you choose not to obtain the Initial Service, then we are not responsible for any delay or any other consequence that may result from your failure to obtain the Initial Service.
- We are not responsible for any delay in the Services that may result from any changes made by you (including via accident) to any part of the Services including, for example, account settings not performed or approved by us.
- The Services may be affected by circumstances outside of our control.
- It is your responsibility to comply with applicable regulations relevant to your business, including privacy laws.
- YOUR OBLIGATIONS
- You agree to promptly provide us with:
- all documentation, information and assistance we may reasonably request in order to perform the Services;
- any instructions, feedback, and input, and take any necessary actions in response to requests made by us that are reasonably required as part of the Services;
- access, permissions, and/or username and password details to any accounts we may reasonably require to perform the Services,
and warrant that everything you provide us is complete, accurate and up-to-date.
(b) We are not liable for any delay in the Services that result from your delay in providing any of the items listed in subclause (a) above, and we reserve the right to amend any delivery schedule, deadlines and/or Fees accordingly.
- You must pay the Fees in the amounts and on or before the Due Date, in full without any set-off, counterclaim, deduction or withholding.
- If an invoice issued by us does not set out a Due Date, then payment will be due within 30 days from the date of that invoice.
- You must pay the Fees to the account specified in the relevant invoice or, if no account is specified, to the following account:
Bank: Westpac Bank
Account Number: 429137
Account Name: Perth Digital Edge
- We will invoice you monthly unless we notify you otherwise.
- Unless we otherwise agree, any Fees paid in accordance with these terms are non-refundable.
- If you fail to make a payment by the Due Date:
- we may charge interest on the overdue sum from the due date until payment of the overdue sum is received at a rate of 8% per annum, accrued daily;
- we may suspend the supply of Services until full payment is received; and
- you shall reimburse us on written demand for any costs or losses sustained or incurred by us arising directly or indirectly from such payment failure, including any debt collection or enforcement costs.
- We reserve the right to amend the Fee and/or any agreed completion date by giving you notice at any time to reflect any increase in the cost of the Services that is due to:
- any request from you to change the Services or to add Additional Services;
- in relation to Website Design Services, any request from you change the agreed website design after we have commenced building work;
- any delay caused by your failure to promptly provide us with any further information we request in relation to the Services;
- We reserve the right to increase any Fees that are of a fixed, recurring or ongoing nature by a minimum of CPI annually.
- We are open between 9.00 am and 5.00 pm Monday to Friday, except for Western Australian public holidays. If you:
- request meetings, calls, responses or work outside of these times;
- request meetings of a combined duration exceeding 90 minutes per month; or
- cancel, reschedule or fail to attend more than two meetings in a month,
may charge additional fees.
- Both parties must keep the other party’s Confidential Information confidential and must not disclose it to any third party without the other party’s prior written consent, except as provided in this clause.
- The confidentiality obligation does not apply to information that is:
- generally available to the public, other than as a result of a breach of this clause;
- required to be disclosed by law; or
- disclosed to a party’s subcontractors, outsourced workers, employees, cloud storage providers, or agents for the purpose of performing the Services or the party’s obligations under these terms.
- INTELLECTUAL PROPERTY
- EXISTING MATERIAL
- Except to the extent otherwise set out in this clause:
- each party retains ownership of the Intellectual Property Rights in its Existing Material; and
- nothing in these terms transfers ownership of, or assigns any Intellectual Property Rights in, either party’s Existing Material to the other party.
- You grant Perth Digital Edge a non-exclusive, royalty free, non-transferable, worldwide and irrevocable license to use your Existing Material to the extent reasonably required to perform any Services.
- You warrant that our use of your Existing Material will not infringe the Intellectual Property Rights of any third party and will indemnify us from and against all losses, claims, expenses, damages and liabilities (including any taxes, fees or costs) which arise out of such infringement.
- Perth Digital Edge grants you a non-exclusive, royalty free, non-transferable and revocable license to use our Existing Material, to the extent:
- such Existing Material is incorporated into the New Material; and
- such use is reasonably required for you to enjoy the benefit of the Services.
- NEW MATERIAL
- Intellectual Property Rights in New Material are assigned to and vest in you when we receive payment of the relevant Fees for the New Material.
- You grant Perth Digital Edge a perpetual, irrevocable, transferable, worldwide and royalty-free license (including the right to sublicense) to use, copy, modify, and adapt the New Material for the purpose of showcasing our work, marketing, and promotional efforts, unless otherwise agreed in writing.
- LIMITATION OF LIABILITY
- Nothing in our agreement with you limits any liability which cannot legally be limited.
- The maximum aggregate liability of Perth Digital Edge to you in respect of loss or damage sustained by you under or in connection with these terms (except for any loss or damage set out in subclause (c) below) is limited to the total Fees paid to us by you in the 12 months preceding the first event giving rise to the relevant liability.
- You release Perth Digital Edge from all liability in relation to any loss or damage arising out of or in connection with the Services to the extent such loss or damage is caused or contributed to by information, documentation or any other Material provided you being incomplete or inaccurate in any way.
- You agree at all times to indemnify and hold harmless Perth Digital Edge and its officers, employees and agents (“those indemnified”) from and against any loss (including reasonable legal costs) or liability incurred or suffered by any of those indemnified where such loss or liability was caused or contributed to by you or your officers’, employees’ or agents’:
- breach of any term of these terms;
- breach of any third party intellectual property rights; or
- negligent, fraudulent or criminal act or omission.
- Perth Digital Edge will not be liable for any incidental, special or consequential loss or damages, or damages for loss of data, business or business opportunity, goodwill, anticipated savings, profits or revenue arising under or in connection with these terms or any services we may provide.
(a) We will use best efforts to ensure that your website, application or other information or data is stored securely. However, we do not accept responsibility or liability for any unauthorized use, destruction, loss, damage or alteration to such data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
(b) For convenience and speed, we will correspond with you by email and rely on communications coming from your email account. However, email is inherently insecure. We are not responsible for loss or damage caused by email use, provided we have taken reasonable security measures, including against viruses or similar harmful items.
- TERM AND TERMINATION
These terms shall continue until the completion of the Services, unless terminated earlier in accordance with these terms.
- TERMINATION RIGHTS
- We may terminate these terms at any time by providing 30 days’ written notice to you.
- You may terminate these terms at any time after 3 months from the Commencement Date by providing 30 days’ written notice to us.
- Either party (the “Non-Defaulting Party”) may terminate these terms immediately by written notice to the other party (the “Defaulting Party”) if the Defaulting Party:
- is in breach of these terms and either:
- fails to remedy such breach within 14 days of receiving notice from the Non-Defaulting Party requiring it to remedy such breach; or
- that breach is not capable of remedy; or
- ceases, suspends or threatens to cease or suspend to conduct its business.
- ACCRUED RIGHTS AND LIABILITIES
The expiration or termination of these terms will not prejudice any accrued rights or liabilities of either party, nor excuse either party from a breach of these terms occurring prior to expiration or termination of these terms.
- CONSEQUENCES OF EXPIRATION OR TERMINATION
Upon expiration or termination of these terms:
- we will refund any amounts paid by you for Services not provided as of the date of termination;
- we will retain any New Material to the extent that you have not paid the Fee for the New Material;
- you must pay all amounts owed for Services already provided as of the date of termination;
- each party must return all property of the other party to that other party; and
- each party must immediately return to each other party, or (if requested by that party) destroy, any documents in its possession or control containing Confidential Information of the other party.
Any clause that by its nature would reasonably be expected to be performed after the termination or expiry of these terms will survive and be enforceable after such termination or expiry.
- DISPUTE RESOLUTION
- Prior to commencing legal proceedings, any party claiming a dispute has arisen under or in connection with these terms must first attempt to resolve the dispute through good faith negotiations. This includes providing written notice to the other party or parties containing reasonable details of the dispute and requesting its resolution under this clause.
- Both parties must make a genuine effort to resolve the dispute within 14 days (or such other period as agreed by the parties in writing) of the dispute notice being given. If the dispute is not resolved within this period, any party may take legal action to resolve the dispute.
- All notices or other communications under these terms must be written and in English. They should be delivered via email to:
Perth Digital Edge: Info@perthdigitaledge.com.au
You: The email address you provided in the “onboarding questionnaire,”
or if no email address is specified, the email address most regularly used by the parties for correspondence regarding the subject matter of these terms as of the date of these terms. The parties may update their email address by providing notice to the other party.
- Unless the sending party knows or has reason to suspect that an email was not delivered to the other party’s email address, notice will be considered to be given when the email was sent or, if sent outside of business hours in Western Australia, at 9:00am on the next business day.
- FORCE MAJEURE
- In the event that a party (the “Affected Party”) is unable to fulfil any of its obligations under these terms, other than an obligation to pay money, as a result of a Force Majeure Event, the Affected Party must promptly provide written notice to the other party including reasonable details of the event and the extent to which it affects the Affected Party’s ability to fulfil its obligations.
- The affected obligation will be suspended to the extent that it is impacted by the Force Majeure Event, provided that the Affected Party has complied with subclause (a) above.
- The Affected Party must make a reasonable effort to overcome or resolve the Force Majeure Event as soon as possible.
- GOVERNING LAW
These terms shall be governed by the laws of Western Australia.
Each party irrevocably submits to the exclusive jurisdiction of the courts of Western Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with these terms. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
No party to these terms may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
- CHANGES TO THESE TERMS
We reserve the right, at our sole discretion, to amend these terms at any time. If we deem an amendment to be material, we will make reasonable efforts to notify you at least 30 days’ before such amendment takes effect.
- ENTIRE AGREEMENT
These terms embody the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of these terms.
In these terms, the following words and phrases have the following meanings:
|Graphic design, content changes, webpage redesigns, email setup, Google MyBusiness setup, paid traffic (such as Google Adwords), graphic design, photography, videography, website hosting, domain mapping, blogging, off page SEO, and technical support.
|The date you sign these terms and the Development Proposal.
|Information of, or provided by, a party that is by its nature confidential, is designated as confidential, or that the recipient of the information knows or ought to know is confidential (including all commercial information exchanged between the parties), but does not include information that is, or becomes, without a breach of confidentiality, public knowledge.
|The development proposal provided to you prior to the Commencement Date in relation to the Services.
|The date on which payment is due specified in any invoice that we issue you for the Services.
|Material of either party, other than New Material.
|The amounts payable for the Services as set out in the Development Proposal.
|Force Majeure Event
|Any unforeseeable, uncontrollable and extraordinary event or circumstance beyond the reasonable control of the Affected Party, including but not limited to:natural disasters, such as hurricanes, earthquakes, floods, fires and pandemics;strikes or other industrial actions;war, terrorism, sabotage, blockade or revolution;government actions, regulations or restrictions, including those related to COVID-19.
|Intellectual Property Rights
|All copyright, trademark, design, patent, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of these terms both in Australia and throughout the world.
|Tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever.
|Material that is created, written, developed or otherwise brought into existence as part of the Services.
|Perth Digital Edge
|Perth Digital Edge Pty Ltd ATF BRT Family Trust, ABN 89 974 753 507.
|The services that we will provide you as set out in the “statement of work” in the Development Proposal.