23 Digital

Terms of Service

Send me a Proposal

  1. Acceptance of Terms

    1. Unless otherwise agreed in writing, the supply of all Services offered by 23 Digital Pty Ltd (ABN 52 169 724 181; ACN 169 724 181) and/or its associates, related parties, successors and assigns (collectively, the “Provider”) to each Client is governed by these Terms of Service (“Terms”).
    2. The Client accepts these Terms when it signs or electronically accepts a Proposal/Service Order Form, instructs the Provider to commence work, accesses or uses a Service, or pays a Tax Invoice relating to a Service. The individual accepting on behalf of a Client warrants that they are authorised to bind the Client.

  2. Definitions

    1. In these Terms, the following terms have the following meanings:
      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. Client means the individual or organisation whose details are listed in the applicable Proposal/Service Order Form as the purchaser of the Services;
      3. Client Website means the website maintained or operated by the Client;
      4. Client Website Content means any and all content uploaded, posted, transmitted, emailed or otherwise made available on or through a Client Website;
      5. Client Website Copywriting Service means the provision of website content service supplied by the Provider in respect of a Client Website;
      6. Client Website Design and Development Service means the website design and development service supplied by the Provider in respect of a Client Website;
      7. Client Website Hosting Service means the website hosting service supplied by the Provider in respect of a Client Website;
      8. Client Website Maintenance Service means the website technical and programming maintenance service supplied by the Provider in respect of a Client Website;
      9. Confidential Information means, concerning a party to these Terms:
        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. other information identified in writing as confidential by either party and
        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 23digital-new.webdesignerdirectory.com.au;
    7. Service End Date means:
      1. with respect to all Services other than Client Website Design and Development Service, the last date of the Service Period, and
      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 the 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:
      1. the Client’s legal name, registered address, ABN (if applicable), primary contact details and designated notices email address;
      2. Service scope of work or package selection;
      3. Service Fees and Charges;
      4. payment terms (upfront basis or by way of periodic or progress payments);
      5. additional charges (if any);
      6. the name and confirmation of authority of the person accepting the Proposal/Service Order Form on behalf of the Client;
      7. for any Recurring Monthly Service, the selected commitment period, applicable notice period, Committed Monthly Rate, Month-to-Month Rate at commencement, any waived or discounted Setup Fee, and a plain-English summary of the financial consequences of early cancellation; and
      8. with respect to the Client Website Design and Development Service:
        1. applicable milestones reflecting the progress of the development of the Client’s Website; and
        2. Client tasks.
    10. Search Engine Optimisation Service or SEO Service means the service provided by the Provider to improve the visibility of the 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 the Client’s product or service;
    14. Start Date means 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;
      1. Tax Invoice means an invoice issued by the Provider and submitted to the Client in respect of a specified Service;
      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;
      3. Users mean:
        1. any persons visiting or viewing the Provider’s Website;
        2. any Registered Users of the Provider’s Website; and
        3. any other Clients using the Services.
    16. Recurring Monthly Services means any Service supplied by the Provider on a recurring monthly basis, including without limitation Pay Per Click Advertising Services, Search Engine Optimisation Services, Social Media Marketing Services, Search Engine Marketing Services, Email Marketing Services, and Client Website Maintenance Services, but excluding the Client Website Hosting Service and the Domain Name Service.
    17. Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth), as applied as a law of the Commonwealth and each State and Territory;
    18. Business Day means a day other than a Saturday, Sunday or public holiday in Melbourne, Victoria; and
    19. Personal Information has the meaning given in the Privacy Act 1988 (Cth).

  3. 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. Client Website Design and Development Services, including:
        1. creation of new Client Websites;
        2. modifications and redesigns the design, layout or content of existing Client Websites;
        3. development of content management system tools and
        4. provision of an e-commerce system;
        5. provision of custom web application;
      2. Client Website Hosting Service;
      3. Client Website Maintenance Service;
      4. Client Website Copywriting Service;
      5. Domain Name Service;
      6. Email Marketing Service;
      7. Search Engine Optimisation Service;
      8. Social Media Marketing Service;
      9. Pay Per Click Advertising Service; and
      10. Other new or improved services, functions, features, contents or facilities are 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:
      1. assistance on resolution of Client Website issues;
      2. bug fixes, and
      3. “how-to” guidance.

  4. Service Fees and Charges

    1. Service Fees and Charges for each Service are set out on the Provider’s Website at https://www.23digital.com.au/terms-and-conditions or as otherwise agreed in the Proposal/Service Order Form.
    2. The Provider may vary the Service Fees and Charges, including any promotion or discount, where the variation is reasonably necessary to reflect: (a) increases in third-party supplier or platform costs; (b) changes in applicable taxes, levies or regulatory charges; (c) movements in the Australian Consumer Price Index; or (d) objectively supportable material increases in the Provider’s costs of supplying the relevant Service or other reasonable commercial grounds directly connected with that supply. The Provider must give the Client at least thirty (30) days’ written notice of the variation and the reason for it.
    3. Any variation in 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

    1. The Client shall purchase any or all Services 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:
      1. all Proposal/Service Order Forms submitted by the Client shall be deemed an offer by the Client to purchase Services by the specifications of the Proposal/Service Order Form and the provisions of these Terms;
      2. the Provider is not bound by a Proposal/Service Order Form until it accepts it. Acting reasonably, the Provider may review the specifications and notify the Client that it rejects or proposes amendments to all or part of the Proposal/Service Order Form. Upon the Provider’s written acceptance, the Client is bound by the accepted specifications and any agreed amendments; and
      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 the Provider’s written acceptance of the request. The Provider is entitled to accept, reject, or modify any such requests for changes.
    4. If there is an inconsistency between contract documents, the following order of precedence applies to the extent of the inconsistency: (a) a written special condition in the Proposal/Service Order Form that expressly states it overrides these Terms; (b) the Proposal/Service Order Form; (c) an expressly incorporated scope of work or specification; and (d) these Terms. A purchase order or other Client document does not amend the agreement unless the Provider expressly agrees in writing.

  6. Payment of Service Fees and Charges

    1. Service Fees and Charges for a Service must be paid upfront with the Client submitting the applicable Proposal/Service Order Form. Suppose 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. In that case, 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.
    2. The Client hereby authorises the Provider to charge the Client’s credit card, as specified in the applicable Proposal/Service Order Form, the amount due and payable by the Client under a Tax Invoice on each due date.
    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:
      1. any requests for changes made to a Proposal/Service Order Form by the Client and accepted by the Provider under Clause 5.3; and/or
      2. excessive use of the Provider’s technical support service for reasons other than the fault or negligence of the Provider;
    4. Unless otherwise noted, all service fees and Charges exclude Goods and Services Tax. The Provider will charge any Goods and Services Tax incurred in respect of a Service at the applicable rate, which the Client must pay at the same time or together with the relevant Service Fees and Charges.
    5. In the event the Client fails to pay any Fees by the due date, the Client agrees to be liable for and to reimburse the Provider for all reasonable costs and expenses incurred by the Provider in the recovery of the outstanding Fees, including reasonable legal fees, debt collection costs, and other related expenses. In the event of any legal proceedings between the parties arising from or related to these Terms, the successful party shall be entitled to recover its reasonable costs from the unsuccessful party, including reasonable legal fees and disbursements.

  7. 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 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 under Clause 8 as noted therein for the applicable Service, and any suspension or termination shall be under Clause 15.

  8. 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 endeavours 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. will be uninterrupted or error-free;
      2. will meet the Client’s requirements, including, without limitation:
        1. any requirements relating to access, use and/or operation of any of the Services supplied to the Client;
        2. any requirements relating to the design, hosting, administration and/or operation of a Client Website after the purchase and/or use of the Client Website Design and Development Service, the Client Website Hosting Service or the Domain Name Service;
        3. any requirements relating to sales or profits, or lack of sales or profits thereof, as after the purchase of the Email Marketing Service or the Pay Per Click Advertising Service, SEO Service or Social Media Marketing Service; or
      3. will be free from external intruders (hackers), virus or worm attacks, denial of service attacks, 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:
      1. the Client must perform promptly 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 under Clause 5.3;
      2. the Client must provide reasonable assistance and cooperation to the Provider for the design and development of the Client Website to be completed in a timely and efficient manner;
      3. the Client is responsible for supplying all product data, content, and images in the format specified by the Provider. If the Client fails to provide the required materials in the agreed format, the Provider reserves the right to charge the Client additional fees for any modifications or formatting required to make the content suitable for use in the project. These additional fees will be invoiced separately and must be paid before the project can proceed.
      4. If any additional time or resources are required due to the Client providing non-compliant data or making requests for changes outside the original project scope, the Provider reserves the right to charge the Client for the additional work at the Provider’s standard hourly rates. These charges will be invoiced separately and are payable in accordance with the agreed payment terms.
      5. 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;
      6. 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;
      7. 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. unless the Client Website Copywriting Service is purchased, the Client must provide all Client Website Content within two (2) weeks after the Start Date under the relevant Proposal/Service Order Form;
      9. the Provider shall create the design and layout of the Client Website in substantial conformity with materials given to the Provider by the Client;
      10. 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;
      11. in developing the Client Website:
        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. such usage is subject to the copyright notices of the Provider and third parties, respectively, which must be adhered to by the Client;
        3. with the exception of the limited warranty given by the Provider under 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 “as-is”.
      12. Upon payment of 50% of the Service Fees and Charges, the client is entitled to cancel the Service before confirming the Specifications or within seven days of the Start 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:
      1. All client Websites are hosted on Systems operated by either the Provider or third-party suppliers on behalf of the Provider. Accordingly:
        1. Scheduled and/or unscheduled system maintenance may be required by the provider or the third party from time to time, and such maintenance may necessitate that client websites be placed offline for a particular duration. The Provider shall endeavour to provide prior written notification of the maintenance but shall not be obliged to do so under these Terms;
        2. the Provider may, but shall not be obliged to, archive Client Website Content using backup mechanisms regularly for disaster recovery. 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:
          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;
          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. 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. Acting reasonably, the Provider or a third-party supplier may upgrade, revise or change any part of the Systems, or migrate from one System to another. Where practicable, the Provider will give reasonable notice of a change likely to cause material disruption. Subject to Clause 13.6, the Provider is not liable for loss caused by a third-party supplier’s upgrade, change, migration or resulting failure that is outside the Provider’s reasonable control;
      2. Client Websites are subject to 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. 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:
        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 does not contain any computer viruses and will not, in any way, corrupt the data or systems of any User;
        2. the Client must not upload, post, email, transmit or otherwise make available:
          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;
          2. any Client Website Content that the Client does not have a right to make available under any law or 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. any Client Website Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
          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;
          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
          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. 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;
        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;
        5. without incurring any liability to the Client and at the Client’s sole cost and expense:
          1. acting reasonably, the Provider may remove Client Website Content that it reasonably considers breaches these Terms or applicable law. Where practicable and lawful, the Provider will notify the Client and allow a reasonable opportunity to remedy the issue before removal; and
          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:
            1. comply with legal process;
            2. enforce these Terms;
            3. respond to the Client’s requests for technical support, and
            4. protect the rights, property, or personal safety of the Systems, Users and/or the public.
          3. The Client must not use CPU processing, bandwidth, disk space or other resources materially beyond the amount purchased or reasonable standard usage patterns. If the Provider reasonably identifies excessive use, it may take proportionate corrective action, including additional charges, temporary restriction, disconnection or termination under Clause 15. Except where urgent action is reasonably necessary to protect security, system integrity or other users, the Provider will first give written notice describing the issue and a reasonable opportunity to remedy it;
      4. the Client grants the Provider a non-exclusive, royalty-free, worldwide license for 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:
        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
        2. make archival or backup copies of the Client Website and Client Website Content.
      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”):
        1. the Client may, anytime during the Renewed Service Period, give a written notice to the Provider for the discontinuance of the Service;
        2. such notice shall take effect at the end of the monthly cycle of Service;
        3. payment for the Service Fees and Charges in respect of the Renewed Service Period must be paid under Clause 6; and
        4. these Terms shall remain valid and in force for the entire Renewed Service Period.
      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 before the 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 buying the Domain Name Service for parking a domain name, the Client acknowledges and agrees that:
      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;
      2. the Provider and/or its affiliates may place advertising on the Client’s parked page and
      3. the Client shall have no rights or entitlements and shall waive all rights and entitlements to receive any compensation from the Provider and/or its affiliates’ use of the said page for their commercial gain.
      4. The client is entitled to cancel the service upon payment of 100% of the Service Fees and Charges.
    5. Pay Per Click Advertising Service: In agreeing to purchase, or in buying the Pay Per Click Advertising Service, the Client acknowledges and agrees that:
      1. the Provider will set up online advertising campaigns and deliver Google paid search traffic to the 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.
      2. the Provider will not be liable for any loss or damage the Client may suffer as a result of search engines refusing or limiting the delivery of paid search traffic to the Client’s Website, as described in Clause 8.5.1.
      3. The Provider will charge the Client a fee, as the relevant search engine may charge for Pay Per Click Advertising Service. To avoid 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.
      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”):
        1. cancellation of the Service during the Renewed Service Period is governed by Clause 8.7 of these Terms;
        2. the applicable notice requirement in Clause 8.7.3 applies to a cancellation issued during the Renewed Service Period;
        3. payment for the Service Fees and Charges in respect of the Renewed Service Period must be paid under Clause 6;
        4. these Terms shall remain valid and in force for the entire Renewed Service Period.
      5. Cancellation of the Pay Per Click Advertising Service is governed by Clause 8.7 of these Terms.
    6. Search Engine Optimisation Services/ SEO Service: In agreeing to purchase, or in purchasing the Search Engine Optimisation Services/ SEO Service, the Client acknowledges and agrees that:
      1. The client must provide all the information as requested by the Provider within seven days of the time the Provider requests the information.
      2. The provider providing the SEO service shall use the best practices in the industry.
      3. The Provider does not control search engine algorithms, and results can vary based on the Client’s website history, industry, and several other factors.
      4. in rendering the Service, the Provider 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 there are any concerns regarding the suitability of Services offered by the Provider.
      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”):
        1. cancellation of the Service during the Renewed Service Period is governed by Clause 8.7 of these Terms;
        2. the applicable notice requirement in Clause 8.7.3 applies to a cancellation issued during the Renewed Service Period;
        3. payment for the Service Fees and Charges in respect of the Renewed Service Period must be paid under Clause 6 and
        4. these Terms shall remain valid and in force for the entire Renewed Service Period.
      6. Cancellation of the Search Engine Optimisation Service is governed by Clause 8.7 of these Terms.
    7. Cancellation of Recurring Monthly Digital Marketing Services
      1. Application – This Clause applies to all Recurring Monthly Services as defined in Clause 2.16, including without limitation Pay Per Click Advertising Services, Search Engine Optimisation Services, Social Media Marketing Services, Search Engine Marketing Services, Email Marketing Services, and Client Website Maintenance Services. This Clause does not apply to Client Website Hosting Services, which remain governed by Clause 8.3, or to the Domain Name Service, which remains governed by Clause 8.4.
      2. Service Terms and Pricing – The Client acknowledges and agrees that:
        1. (a) Recurring Monthly Services are offered across multiple commitment periods, including month-to-month, three (3) month, six (6) month, and twelve (12) month terms, as specified in the applicable Proposal/Service Order Form;
        2. (b) the monthly Service Fees and Charges applicable to each Recurring Monthly Service are determined by reference to the commitment period selected by the Client, with longer commitment periods attracting reduced monthly rates; and
        3. (c) the pricing agreed upon in the Proposal/Service Order Form is contingent upon the Client fulfilling the commitment period selected at the time of purchase.
      3. Right to Cancel — Notice Requirement
        The Client may cancel a Recurring Monthly Service at any time by giving the Provider written notice of cancellation (“Cancellation Notice”). The required notice is: (i) thirty (30) days for a month-to-month commitment; and (ii) sixty (60) days for a three (3), six (6) or twelve (12) month commitment (the “Applicable Notice Period”). For the avoidance of doubt:

        1. (a) the Cancellation Notice must be submitted in writing in accordance with the notice requirements set out in Clause 14 of these Terms;
        2. (b) the Applicable Notice Period commences on the date the Provider receives the Cancellation Notice;
        3. (c) all recurring Service Fees and Charges falling due during the Applicable Notice Period remain payable in full on their scheduled due dates, and the Provider will continue to deliver the relevant Recurring Monthly Services during that period;
        4. (d) the Client shall not be entitled to reduce, suspend or withhold payment of any Service Fees and Charges during the notice period on the basis that the Client has issued a Cancellation Notice; and
        5. (e) the Service End Date for the cancelled Service is the date on which the Applicable Notice Period expires, despite any different Service End Date in the Proposal/Service Order Form.
      4. Early Cancellation Prior to Expiry of Commitment Period
        Where the Client issues a Cancellation Notice prior to the expiry of the agreed commitment period specified in the applicable Proposal/Service Order Form:

        1. (a) the Client acknowledges that the monthly Service Fees and Charges agreed upon were offered by the Provider in consideration of the Client’s commitment to the full term; and
        2. (b) the Client must pay the Provider an amount calculated as: (Month-to-Month Rate – Committed Monthly Rate) x Months Already Served. “Month-to-Month Rate” means the Provider’s standard month-to-month rate for the same Service at the commencement of the Service, as recorded in the Proposal/Service Order Form or another written communication provided before commencement. “Committed Monthly Rate” means the monthly rate in the Proposal/Service Order Form. “Months Already Served” means the number of complete months elapsed in the commitment period when the Provider receives the Cancellation Notice. The Provider will issue a Tax Invoice within fourteen (14) days after receipt, payable within fourteen (14) days after the invoice date.
        3. (c) the Client acknowledges that the amount under paragraph (b) is a reasonable and genuine pre-estimate of the Provider’s loss where the commercial basis for the lower committed rate is no longer fulfilled, and is not intended to punish the Client.
        4. (d) Worked example: if the Committed Monthly Rate is $2,000, the Month-to-Month Rate recorded at commencement is $2,500 and five complete months have been served, the amount under paragraph (b) is ($2,500 – $2,000) x 5 = $2,500. Normal Service Fees and Charges remain payable during the Applicable Notice Period, and any waived Setup Fee may also be reinstated under Clause 8.8. This example is illustrative only; the rates and elapsed months for the relevant Service apply.
    8. Recovery of Waived Setup Fees Upon Early Cancellation
      1. Application – This Clause applies where the Provider has, as part of a promotional offer or as an agreed commercial concession, waived or discounted any setup fee, onboarding fee, or campaign-build fee (collectively, “Setup Fee”) that would otherwise have been payable by the Client in respect of a Recurring Monthly Service.
      2. Waived Setup Fee – Conditions
        The Client acknowledges and agrees that:

        1. (a) any waiver or discount of a Setup Fee by the Provider is granted solely in consideration of the Client’s commitment to complete the full commitment period specified in the applicable Proposal/Service Order Form;
        2. (b) the waived or discounted Setup Fee amount shall be recorded in the applicable Proposal/Service Order Form or in a separate written communication provided to the Client at or prior to the commencement of the relevant Service; and
        3. (c) the waiver or discount of a Setup Fee is conditional upon the Client fulfilling its obligations under these Terms for the entirety of the agreed commitment period.
      3. Reinstatement of Setup Fee on Early Cancellation
        Where the Client issues a Cancellation Notice prior to the expiry of the agreed commitment period, the full amount of any Setup Fee that was waived or discounted pursuant to Clause 8.8.2 shall become immediately due and payable by the Client. Specifically:

        1. (a) the Setup Fee shall be reinstated and become a debt due and owing to the Provider upon the date the Cancellation Notice is issued by the Client, regardless of whether the Provider has yet received or acknowledged the Cancellation Notice;
        2. (b) the Provider shall issue a Tax Invoice for the reinstated Setup Fee within fourteen (14) days of receiving the Cancellation Notice;
        3. (c) the reinstated Setup Fee is payable within fourteen (14) days after the Tax Invoice date, in addition to all recurring Service Fees and Charges falling due during the Applicable Notice Period under Clause 8.7.3; and
        4. (d) the Client’s obligation to pay the reinstated Setup Fee is not contingent upon, and shall not be affected by, any dispute regarding the quality or outcome of the Services delivered.
      4. Acknowledgment
        The Client expressly acknowledges that it has read, understood, and agreed to the provisions of this Clause 8.8, and that the reinstatement of a waived Setup Fee upon early cancellation is a reasonable and genuine pre-estimate of loss suffered by the Provider in circumstances where the commercial basis upon which the Setup Fee was waived is no longer fulfilled.
    9. Treatment of Paid Setup, Onboarding and Campaign-Build Fees
      1. This Clause applies to any setup fee, onboarding fee, campaign-build fee, or other one-off establishment fee paid by the Client to the Provider in respect of any Service (“Paid Setup Fee”).
      2. The Client acknowledges and agrees that:
        1. (a) Paid Setup Fees are charged in respect of discrete establishment work performed by the Provider at the commencement of the relevant Service;
        2. (b) Paid Setup Fees are deemed earned in full by the Provider upon completion of the relevant establishment work, regardless of whether the full Service Period or commitment period is subsequently completed; and
        3. (c) Paid Setup Fees are non-refundable in respect of change of mind, unused services, early cancellation, work already approved by the Client, third-party costs incurred and work already performed, except to the extent the Client has rights or remedies that cannot lawfully be excluded or limited under the Australian Consumer Law.
      3. Subject to Clause 13.6, no part of a Paid Setup Fee is subject to a pro-rata refund, set-off or clawback on cancellation, termination or expiry of the Service.
    10. Renewal Notification
      1. The Provider shall give the Client written notice of any impending automatic renewal of a Service under Clauses 8.3.5, 8.5.4 or 8.6.5 (or any equivalent automatic renewal provision in these Terms) no less than thirty (30) days prior to the end of the current Service Period.
      2. The notice shall:
        1. (a) state the date on which the Service is scheduled to renew;
        2. (b) state the term and price of the Renewed Service Period; and
        3. (c) inform the Client of its rights to cancel the Service under Clause 8.7.
      3. If the Provider fails to give notice under this Clause 8.10, the Client may cancel the Service within thirty (30) days after receiving written notice of the renewal without giving the Applicable Notice Period under Clause 8.7.3. The Provider will refund prepaid Service Fees and Charges for the unused part of the Renewed Service Period on a pro-rata basis.
    11. Email Marketing Service: In agreeing to purchase, or in purchasing the Email Marketing Service, the Client acknowledges and agrees that:
      1. the Client is solely responsible for ensuring that all email recipient lists, customer data and other personal information provided to the Provider for use in connection with the Email Marketing Service have been collected, retained and made available in compliance with all applicable laws, including without limitation the Spam Act 2003 (Cth) and the Privacy Act 1988 (Cth);
      2. the Client warrants that each recipient has provided legally sufficient express or inferred consent to receive the relevant marketing communications, and that the Client maintains complete consent records and will provide them to the Provider within two (2) Business Days after request where reasonably required to respond to a complaint, inquiry or regulatory process;
      3. the Provider does not control, and shall not be liable for, deliverability rates, spam folder placement, sender reputation issues, or recipient mailbox provider filtering or blocking;
      4. the Provider does not control, and shall not be liable for, changes to the rules, policies or technical specifications of email service providers or mailbox operators;
      5. the Client must ensure every commercial electronic message identifies the sender, contains current contact details and includes a clear, functional unsubscribe facility. The Client must maintain and provide an up-to-date suppression list and ensure unsubscribe requests are actioned within five (5) Business Days or any shorter period required by law;
      6. the Client must not provide a purchased, rented, scraped or third-party list unless it has verified and documented that each recipient has legally sufficient consent to receive the relevant communications from the Client. The Client indemnifies the Provider against any claim, complaint, regulatory action or liability arising from the Client’s breach of this Clause 8.11 or applicable law;
      7. the Client must promptly notify the Provider of any complaint, inquiry, investigation or notice from the Australian Communications and Media Authority, the Office of the Australian Information Commissioner or another regulator relating to a campaign delivered by the Provider, and the parties must reasonably cooperate in responding; and
      8. cancellation of the Email Marketing Service is governed by Clause 8.7.
    12. Social Media Marketing Service: In agreeing to purchase, or in purchasing the Social Media Marketing Service, the Client acknowledges and agrees that:
      1. the Client must provide the Provider with timely access to all relevant social media accounts, advertising platforms, business manager accounts and other digital assets necessary for the Provider to deliver the Service;
      2. the Provider does not control, and shall not be liable for, the policies, terms of service, algorithms, content moderation decisions, or technical features of any third-party social media platform;
      3. the Provider does not control, and shall not be liable for, organic reach, engagement rates, follower growth, or any specific performance metrics, which are subject to platform algorithms and user behaviour outside the Provider’s control;
      4. the Client is responsible for the lawfulness, accuracy and intellectual property compliance of all content, imagery, claims and offers it supplies or approves, and warrants that every advertising claim is truthful, adequately substantiated and compliant with the Australian Consumer Law and other applicable law;
      5. the Client retains responsibility for responding to direct customer inquiries, complaints and reputational matters arising on its social media channels, unless community management is expressly included as part of the Service in the applicable Proposal/Service Order Form;
      6. platform suspension, deactivation or restriction of the Client’s accounts by the relevant social media platform is outside the Provider’s control, and the Provider shall not be liable for any loss or damage arising from such platform action; and
      7. the Provider may require written approval of content, campaigns, claims, offers or targeting before publication. Approval by email, project-management platform or other recorded electronic means is sufficient, and each party must retain relevant approval records; and
      8. cancellation of the Social Media Marketing Service is governed by Clause 8.7.
    13. No Guarantee of Commercial Outcomes
      1. The Provider will perform the Services with due care and skill but, subject to Clause 13.6, does not represent or warrant that a Service will achieve any specific ranking, impression volume, reach, engagement, lead volume, conversion rate, sale, revenue, return on advertising spend or other commercial outcome.
      2. Results depend on matters outside the Provider’s reasonable control, including platform algorithms and policies, market conditions, competitor activity, seasonality, budgets, the Client’s pricing and offer, website performance, stock or service availability, sales processes, response times, approvals and implementation of recommendations.
    14. Third-Party Platforms
      1. The Services may depend on hosting providers, search engines, advertising and social platforms, email service providers, payment gateways, app stores, content-moderation systems, analytics services, software vendors, APIs and other third-party technology (Third-Party Platforms).
      2. The Provider does not control Third-Party Platforms and, subject to Clause 13.6, is not liable for a policy or pricing change, outage, algorithm update, account restriction, suspension, content decision, data change, integration failure or other act or omission of a Third-Party Platform outside the Provider’s reasonable control.
      3. The Provider will use reasonable endeavours to notify the Client of a material Third-Party Platform issue affecting the Services and, where within scope and commercially reasonable, recommend or implement a mitigation. An algorithm change, ordinary policy change or performance fluctuation is not a Force Majeure Event.

  9. 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. The client must grant the Provider 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, 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 modifications to the Client’s Website.

  10. Intellectual Property Rights and Ownership

    1. Systems and Services:
      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. 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;
        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;
        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 license for the duration of the Service Period in respect of the same; and
        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:
      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:
        1. with respect to pre-existing works described in Clause 8.2.11.1, by the Provider and/or the third party; and
        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. 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 not expressly granted to the Client shall be reserved by the Provider.
    4. Portfolio and case studies
      1. Subject to Clause 16, the Client grants the Provider a non-exclusive, royalty-free licence to identify the Client by name and logo and display publicly released work produced under the engagement in the Provider’s portfolio, credentials, award entries and case studies.
      2. The Provider must not disclose the Client’s Confidential Information or unpublished commercial results without prior written approval. The Client may opt out of future portfolio or case-study use at any time by written notice, after which the Provider will remove the material from channels it controls within a reasonable period.
    5. Third-party assets and licences
      1. A Proposal/Service Order Form must identify material third-party plugins, themes, fonts, stock assets, SaaS tools, APIs, hosting services or other licences required for the Services where reasonably practicable, including who will procure, own and pay for them.
      2. Unless otherwise stated, the Client is responsible for ongoing third-party licence, subscription, usage and renewal charges incurred specifically for the Client. Third-party materials remain subject to their applicable licence terms and are not assigned beyond what those terms permit.
      3. On termination, the Provider will reasonably assist the Client to identify licences that must be transferred, replaced or renewed. The Client bears third-party transfer or replacement costs unless the Proposal/Service Order Form states otherwise.
    6. Client accounts, ownership and access
      1. Where the relevant platform permits, client-specific digital accounts, including Google Ads, Meta Business Manager, GA4, Google Tag Manager, Search Console, domain, hosting, CMS and email marketing accounts, will be created in the Client’s name or transferred to the Client on request.
      2. The Provider may retain agency-level or administrator access during the Service Period as reasonably required to deliver the Services. The Provider retains ownership of its agency accounts, tools, templates, methods and aggregated know-how, and is not required to transfer them.
      3. On termination or expiry, and after the Client has paid all undisputed overdue amounts, the Provider will provide reasonable access-transition assistance and transfer or make accessible Client-owned accounts, credentials, source files and data in its possession. Work beyond the included handover scope may be charged at the Provider’s then-current rates after prior written approval.
      4. The Client must promptly nominate authorised account administrators and is responsible for removing the Provider’s access after transition is complete. The Provider may retain records required by law, for insurance, or to establish or defend legal claims.

  11. 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, contract in the Provider’s name, or create a liability against the Provider in any way or for any purpose.
    3. The Provider may engage suitably qualified employees, related entities and subcontractors, including developers, designers, copywriters, media buyers, hosting providers and specialist advisers, to perform any part of the Services. The Provider remains responsible to the Client for agreed deliverables performed by its subcontractors, subject to these Terms.

  12. Client General Warranties

    1. The Client hereby represents and warrants that:
      1. the Client is duly authorised to enter into these Terms under the method or form of authorisation required by its constitution or by applicable laws under its jurisdiction of formation or incorporation;
      2. when executed, these Terms shall be legal, valid and binding on the Client, enforceable against the Client under 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;
      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 any other communications between the parties;
      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 the Client has agreed to enter into these Terms based on its judgment and discretion and expressly disclaims any reliance upon any statements or representations made by the Provider;
      5. there are no pending or threatened actions or proceedings before any court or administrative agency that could have a material adverse effect on the performance of the Client’s obligations under these Terms, nor is the Client in default under any material loan, lease or purchase obligation; and
      6. all information furnished and to be furnished by the Client shall be true, correct and complete.
      7. the Client holds and will maintain all rights, licences, permissions and consents required for materials, data, audiences, claims and instructions it supplies or approves; and
      8. all advertising, comparative, performance, price, product, environmental, health or other claims supplied or approved by the Client are truthful, current, adequately substantiated and compliant with the Australian Consumer Law and other applicable laws.

  13. Exclusion of Liability and Client Indemnity

    1. Subject to Clause 13.6 and the limited warranty in Clause 13.2, to the maximum extent permitted by law the Provider and its related bodies, officers, agents, subcontractors and employees are not liable to the Client for direct, indirect, incidental, special, consequential or exemplary loss, including:
      1. damage to property;
      2. loss of profits or revenue;
      3. loss of data;
      4. goodwill; and
      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. the Systems;
        2. the Services, and the Client’s use thereof;
        3. any Client Website Content, whether authorised or unauthorised and whether in original form or any altered form thereof;
        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 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:
      1. the warranty shall be limited solely to locating and fixing any bugs occurring on the Client’s Website;
      2. the warranty cannot be enforced if:
        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. acting reasonably and having regard to available technical evidence, the Provider determines that the problem cannot reasonably be fixed because it was caused by circumstances beyond the Provider’s control, including an act or omission of the Client, its employees, representatives or another supplier. The Provider will give the Client written reasons for that determination.
    3. The Client agrees to indemnify, defend and hold the Provider fully 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:
      1. access and use of, or connection with, the Systems;
      2. use or misuse of any Services;
      3. breach of any obligations under these Terms, or
      4. violation of the rights of any person.
    4. Subject to Clause 13.6, if the Provider is liable to the Client for loss or damage arising from these Terms or the Services, whether in contract, tort (including negligence), under statute or otherwise, the Provider’s aggregate liability is limited to the total Service Fees and Charges paid by the Client for the affected Service during the three (3) months immediately preceding the event giving rise to the claim. This cap does not apply to the extent liability arises from the Provider’s fraud or wilful misconduct.
    5. Subject to Clause 13.6, the Client’s sole contractual remedy for dissatisfaction with the quality, outcomes or performance of a Recurring Monthly Service is cancellation of the affected Service under Clause 8.7 and any refund expressly required by these Terms. This Clause does not apply to: (a) rights or remedies that cannot lawfully be excluded, restricted or modified under the Australian Consumer Law; (b) a claim arising from the Provider’s fraud or wilful misconduct; or (c) a genuine dispute about whether an amount has been correctly invoiced or paid.
    6. Australian Consumer Law savings
      1. Nothing in these Terms excludes, restricts or modifies a consumer guarantee, right, remedy or liability under the Australian Consumer Law or any other law that cannot lawfully be excluded, restricted or modified.
      2. Where a guarantee under the Australian Consumer Law applies and liability may lawfully be limited, the Provider’s liability is limited, at the Provider’s option, to supplying the Services again or paying the reasonable cost of having the Services supplied again. This limitation does not apply where it would be unfair or unlawful.

  14. Notices

    1. A party notifying or giving notice under these Terms must give notice:
      1. in writing;
      2. if directed to the Provider, to [email protected] (or another designated notices email or postal address notified by the Provider in writing);
      3. if directed to the Client, to the designated notices email or postal address in the Proposal/Service Order Form or the Client’s Account, as updated by written notice;
    2. A notice given by this Clause is received:
      1. If left at the recipient’s address on the date of delivery;
      2. if sent by prepaid post, five (5) Business Days after posting;
      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
      4. if sent by email, at the time of transmission unless the sender receives an automated delivery-failure notice, provided that an email sent after 5.00 pm or on a non-Business Day is deemed received at 9.00 am on the next Business Day.

  15. Suspension, Termination and Transfer

    1. Suspension and Termination
      1. the Provider may, without notice, suspend or terminate the Services or disconnect or deny the Client access to the Services:
        1. during any technical failure, modification or maintenance involved in respect of the Systems or the Services;
        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 jeopardising the operation of the Systems or the Services until the breach (if capable of remedy) is remedied;
      2. if a suspension or termination occurs under Clause 15.1.1.2, the Provider will act reasonably in deciding whether to reactivate the Client’s Account or resume the Services. The Provider may impose reasonable conditions connected with the breach, including remedy of the breach, payment of undisputed overdue amounts and a reasonable reactivation fee, and will give written reasons if reactivation is refused;
      3. the Client shall remain liable for all Service Fees and Charges due and payable throughout suspension.
      4. On suspension or termination, access to Client Website Content, accounts, information, materials and data is governed by Clauses 10.6 and 24. This Clause does not require the Provider to release its own systems, agency accounts, confidential information or intellectual property.
      5. The Provider may terminate any Service for convenience, at any time and for any reason, by giving the Client no less than thirty (30) days’ written notice. Where the Provider terminates a Service under this Clause:
        1. the Provider shall continue to deliver the relevant Service through to the effective date of termination;
        2. any Service Fees and Charges paid by the Client in advance for the period after the effective date of termination shall be refunded to the Client on a pro-rata basis;
        3. subject to Clause 13.6, the Provider is not liable for loss arising solely from that termination beyond the pro-rata refund in sub-clause (b);
        4. the Client’s obligation to pay Service Fees and Charges properly incurred before the effective termination date survives;
        5. termination by the Provider under this Clause does not trigger the price-differential payment in Clause 8.7.4 or reinstatement of a waived Setup Fee under Clause 8.8; and
        6. unless reasonably necessary because of legal, regulatory, security, supplier, resourcing or operational circumstances, the Provider will not set an effective termination date within ten (10) Business Days before a material launch or milestone expressly identified in the Proposal/Service Order Form and will reasonably cooperate on transition planning.
    2. Transfer of Service
      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. The Client must provide further information about the Transferee as the Provider may require to consider the financial ability of the Transferee to meet the Terms.
      3. The Provider may refuse a proposed transfer in its reasonable discretion, including where the proposed transferee does not satisfy reasonable credit, compliance, technical or operational requirements. The Provider will give the Client written reasons for refusal.

  16. 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. To employees, legal advisers, auditors and other consultants requiring the information for the purposes of this agreement or
      2. With the consent of the party who supplied the information or
      3. If the information is before 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
      4. If required by law or stock exchange regulations;
      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 2 years after the termination of this agreement.

  17. Assignment

    1. 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.

  18. Entire Agreement

    1. These Terms, the applicable Proposal/Service Order Form and any expressly incorporated scope of work constitute the entire agreement between the parties concerning the relevant Services and supersede earlier proposals, discussions and representations concerning those Services.

  19. Governing Law

    1. These Terms shall be governed exclusively by the laws of Victoria, and the parties hereby submit to the exclusive jurisdiction of that state’s courts.

  20. Waiver and Severability

    1. The Provider’s failure to exercise or enforce any right or provision of these Terms does not constitute a waiver of such right or provision.
    2. If a court of competent jurisdiction finds any provision of these Terms 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.

  21. Force Majeure

    1. A party is not liable for delay or failure to perform an obligation, other than an obligation to pay an amount already due, to the extent caused by an event beyond its reasonable control that could not reasonably have been prevented or overcome, including natural disaster, fire, flood, epidemic, war, civil unrest, government action, widespread telecommunications or internet outage, cyberattack despite reasonable security measures, or material supplier or utility failure (Force Majeure Event).
    2. The affected party must promptly notify the other party, describe the expected impact, use reasonable endeavours to mitigate it and resume performance as soon as reasonably practicable. Time for affected performance is extended for the duration of the Force Majeure Event.
    3. Fees continue only for Services that continue to be supplied. Fees for a materially affected recurring Service will be suspended or credited on a pro-rata basis for the period it cannot substantially be supplied, except for non-cancellable third-party costs disclosed to the Client.
    4. If a Force Majeure Event materially prevents a Service for more than sixty (60) consecutive days, either party may terminate the affected Service on ten (10) Business Days’ written notice without an early-cancellation payment under Clause 8.7.4 or reinstatement under Clause 8.8. Accrued rights and amounts for Services already supplied are unaffected.

  22. Dispute Resolution

    1. A party claiming a dispute must give written notice describing the issue, relevant facts and requested outcome. Within ten (10) Business Days, a senior representative of each party with authority to resolve the dispute must meet by telephone, video conference or in person and attempt in good faith to resolve it.
    2. If unresolved within ten (10) Business Days after that meeting, either party may refer the dispute to mediation in Melbourne, Victoria, administered by the Resolution Institute under its mediation rules. The parties will share the mediator’s fees equally and bear their own costs.
    3. Neither party may commence court proceedings until the process in Clauses 22.1 and 22.2 has been attempted, except for urgent interlocutory or injunctive relief, debt recovery for an undisputed amount, or where a limitation period is about to expire.
    4. Each party must continue performing its undisputed obligations while a dispute is being resolved.

  23. Non-Solicitation

    1. During the Service Period and for twelve (12) months after it ends, the Client must not knowingly and directly solicit for employment or engagement a Provider employee or contractor who was materially involved in supplying the Services and with whom the Client had direct dealings, unless the Provider gives prior written consent.
    2. Clause 23.1 does not prevent general recruitment advertising not targeted at the person, an approach initiated independently by the person without direct solicitation, or the engagement of a person whose relationship with the Provider ended more than six (6) months earlier.
    3. This Clause applies only to the maximum extent reasonably necessary to protect the Provider’s legitimate interests and permitted by law.

  24. Privacy and Data Protection

    1. Each party must comply with the Privacy Act 1988 (Cth), the Australian Privacy Principles and other applicable privacy and data-protection laws in connection with the Services.
    2. The Client warrants that it has given all required notices and obtained all required consents and authorities for the Provider and its approved subcontractors to collect, access, use, disclose, store and otherwise handle Personal Information as reasonably required to supply the Services.
    3. The Provider will use Personal Information received from the Client only to supply and administer the Services, comply with law, protect its legitimate legal interests, or as otherwise authorised in writing by the Client. It will restrict access to personnel and subcontractors who reasonably need access and are subject to appropriate confidentiality and privacy obligations.
    4. If Personal Information may be disclosed to a recipient outside Australia, the Provider will notify the Client of the relevant country where reasonably practicable and take reasonable steps required by applicable law in relation to that disclosure. The Client authorises the use of disclosed overseas delivery locations identified in the Proposal/Service Order Form or the Provider’s privacy disclosures.
    5. Each party must notify the other without undue delay, and where practicable within forty-eight (48) hours, after becoming aware of a suspected or actual unauthorised access to, disclosure of, loss of or interference with Personal Information connected with the Services. The parties must reasonably cooperate to contain, assess, remediate and make any legally required notifications. Nothing in this Clause changes a party’s statutory notification obligations.
    6. On termination or written request, the Provider will, subject to Clause 10.6, provide a reasonable export of Client Personal Information in a commonly used format and then delete or de-identify remaining copies within a reasonable period, except for secure backups awaiting ordinary deletion and information required by law, insurance or legitimate legal claims.
    7. The Client remains responsible for its privacy notices, cookie and tracking disclosures, consent-management settings, data-retention decisions and lawful instructions unless the Proposal/Service Order Form expressly assigns a task to the Provider.

  25. Security Responsibilities

    1. Each party must implement reasonable technical and organisational safeguards appropriate to the nature of the Services and information it controls, including access controls, supported software, timely security updates, secure credential handling and incident-response procedures.
    2. The Provider will use multi-factor authentication for privileged access where supported and reasonably practicable, limit administrative access to authorised personnel, and maintain reasonable backup and recovery measures for systems it expressly manages under the Proposal/Service Order Form.
    3. The Client must use unique strong passwords and multi-factor authentication where available, keep its devices, plugins and systems reasonably secure and updated, maintain backups for systems not expressly managed by the Provider, promptly remove access for departed personnel, and notify the Provider of suspected compromise affecting the Services.
    4. A party is not responsible for a security incident to the extent caused by the other party’s breach of this Clause, failure to follow reasonable written security directions, or an unauthorised change by the other party or its separate supplier, subject always to Clause 13.6 and the first party’s own acts and omissions.
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