Elated Communications
Terms and Conditions of Service
MATTHEW DOYLE T/A Elated Communications
Robertson, NSW 2577, Australia.
ABN: 77 346 357 526
1 DEFINITION OF TERMS
The Supplier: Matthew Doyle T/A Elated Communications, Robertson, NSW 2577, Australia.
The Client: the entity which enters into a contract with Matthew Doyle T/A Elated Communications.
Domain Name: the root address of a Website, e.g. www.elated.com. All such names must be registered with the appropriate naming authority, which will usually charge a fee.
Downtime: time when the website is not accessible via the Internet. This may be because of a technical failure of the Host or because work is being carried out on the site.
Host: the company on whose system the Website physically resides.
Search Engine: a website which contains a directory of websites on the Internet enabling users to find websites by subject matter classification.
Website: a collection of web pages and associated code which forms an integrated presence.
The Service: the subject matter of the contract between the Client and the Supplier.
The Work: materials, such as web pages, images, text and software, delivered by the Supplier to the Client as a result of carrying out the Service.
2 DISCLAIMERS
2.1 Third Parties
The Supplier can take no responsibility for services provided through them or otherwise by third parties, including the Hosting of the Client’s Website, although the Supplier will endeavour to ensure that Website downtime is kept to a minimum.
2.2 Maintenance and Correction of Errors
Errors in the Work (both technical and typographical) attributable to the Supplier will be corrected free of charge. However, the Supplier reserves the right to charge a reasonable fee for correction of errors or for making changes for which the Supplier is not responsible, including, but not limited to malicious modification of the Work by a third party, typographical errors contained in materials provided to the Supplier by the Client, and changes requested by the Client after the Work has been delivered to the Client. Any errors made by the Supplier should be reported to the Supplier by the Client, in writing, within 30 days of the delivery of the Work. The Supplier is not responsible for correcting any errors after this 30-day review period.
The Supplier takes no responsibility for the functionality or maintenance (unless a maintenance contract is in place) of the Client’s Website after the contract between the Supplier and the Client has been completed.
2.3 Extent of Service
Installation on the Internet is limited to the uploading of all necessary files to the Host, and testing of functionality. No registration of the Client’s Website with Search Engines or Search Engine optimisation will be undertaken unless otherwise agreed with the Client.
2.4 Consequential Loss
Under no circumstances will the Supplier be responsible or liable for financial or other damage caused by the failure or use or misuse of the Service. Clients should ensure that they regularly make their own backups of their websites and data, and that a contingency plan is in place to minimise possible losses. Clients are also strongly advised, after the Service has been completed, to reset any passwords that were disclosed to the Supplier in order to carry out the Service.
2.5 Status and Duration of Offers
Proposals and offers are valid for a period of one month from the date issued. The Supplier is not bound to honour offers that have expired. Offers are not legally binding until an acceptable timetable for the project has been agreed by both parties. This timetable must be agreed within the month that the offer is valid. If an acceptable timetable has not been approved by both parties within one month of the offer being made, the offer is deemed to have expired.
3 COMPLETION OF SERVICE AND PAYMENT
3.1 Completion of Service
The Supplier warrants to complete the Service in accordance with these Standard Terms and Conditions to the specifications previously agreed with the Client. The Supplier will not charge more than the amount previously agreed unless the Client has varied the specifications of the Service since the agreement. The Supplier will not undertake changes to the specifications of the Service which would increase the cost, without prior written authorisation from the Client.
3.2 Supply of Materials and Client Actions
The Client is to supply all materials and information, upload all content, and carry out all other work required for the Supplier to complete the Service in accordance with the agreed specification. Such materials and content may include, but are not limited to, images, fonts, written-copy, logos, other printed materials, and login details (such as usernames and passwords). Where the Client’s failure to supply such materials or upload such content leads to a delay, or any other delay occurs due to the Client’s inaction, the Supplier has the right to extend previously agreed deadlines for the completion of the Service by a reasonable amount. Where the Client’s inaction, failure to supply materials, or failure to upload content, prevents progress on the Service for more than 21 days, the Supplier has the right to invoice the Client for any portion of the Service already completed, and, if the Client’s Website is hosted on the Supplier’s server, to charge an upfront monthly hosting fee.
3.3 Approval of Work
On completion of the Service, the Client will be notified and have the opportunity to review the Work. The Client should notify the Supplier, in writing, of any unsatisfactory points within 7 days. Any aspect of the Work which has not been reported in writing to the Supplier as unsatisfactory within the 7-day review period will be deemed to have been approved. Once approved, work cannot subsequently be rejected.
3.4 Rejected Work
If the Client rejects the Work within the 7-day review period, or will not approve subsequent portions of the Work delivered by the Supplier to remedy any points reported by the Client as unsatisfactory, and the Supplier considers that the Client is unreasonable in their repeated rejection of the Work, the Supplier can take any legal measures to recover both payment for the completed Work and reasonable expenses incurred in recovering payment.
3.5 Payment and Refunds
For smaller jobs valued at AUD $300 or less, the Client must make payment for the Service in full before the Supplier commences work on the Service.
For larger jobs valued at over AUD $300, the Client must pay a deposit for the Service before the Supplier commences work on the Service. Upon completion of the Service, the Supplier will invoice the Client for the outstanding amount, which, in the absence of agreement to the contrary, is to be paid by the Client within 14 days of the date that the invoice was issued.
All refunds are made at the discretion of the Supplier.
3.6 Remedies for Overdue Payment
If payment has not be received by the due date, the Supplier has the right to suspend the Service to the Client, until such time that full payment of the outstanding balance has been received. If full payment has still not been received 30 days after the due date, the Supplier has the right to replace, modify or remove all software and other intellectual property created by the Supplier from the Internet and revoke the Client’s licence of the software and other intellectual property until full payment has been received. By revoking the Client’s licence of the software and other intellectual property, or by removing the Supplier’s software and other intellectual property from the Internet, the Supplier does not remove the Client’s obligation to pay any outstanding monies owing.
3.7 Instalment Payments
The Supplier will permit payment to be made by instalments where both parties have agreed to this in writing prior to the contract being concluded. Where any instalment payment invoiced by the Supplier becomes more than 10 days overdue, the Supplier can revoke the Client’s right to pay by instalments and demand that the Client pay all monies outstanding within 14 days of the demand.
4 INTELLECTUAL PROPERTY
4.1 Offers and Proposals
Offers and proposals made by the Supplier to potential clients should be treated as trade secrets and remain the property of the Supplier. Such offers and proposals or the information contained within them must not be passed to third parties or publicly disseminated without prior written authorisation from the Supplier. This includes, but is not limited to, technical features, functionality, aspects of the design and pricing information.
4.2 Warranty by Client as to Ownership of Intellectual Property Rights
The Client will obtain all the necessary permissions and authorities in respect of the use of all copy, graphic images, fonts, registered company logos, names and trademarks or any other material it supplies to the Supplier for inclusion in the Work. The conclusion of a contract between the Supplier and the Client shall be regarded as a guarantee by the Client to the Supplier that all such permissions and authorities have been obtained and that the inclusion of such material in the Work would not constitute a criminal offence or civil tort. By agreeing to these terms and conditions, the Client removes the legal responsibility of the Supplier and indemnifies the same from any claims or legal actions however related to the content of the Client’s Website.
4.3 Domain Name
Any Domain Name obtained will belong to the Client. The Client agrees to indemnify the Supplier, including any incidental costs, against any claims that a Domain Name applied for, or obtained, violates the intellectual property rights of a third party. The Client warrants that the domain name sought is not a trademark of a third party.
4.4 Licensing
Once the Supplier has received full payment of all outstanding invoices and the Work has been approved by the Client in accordance with Section 3.3, the Client is granted a licence to use any software and other intellectual property created by the Supplier and delivered to the Client as part of the Service. Unless otherwise agreed in writing, the Supplier retains copyright to all software and other intellectual property created by the Supplier.
4.5 Trade Secrets
Any code that is not freely accessible to third parties and not in the public domain, and to which the Supplier owns the copyright, may not be copied, published, distributed or passed to any third parties in any form without prior written consent from the Supplier. Unless previously agreed otherwise in writing, no modifications may be made by the Client or any third party to code to which the Supplier owns the copyright. The Supplier acknowledges the intellectual property rights of the Client. Information passed in written form to the Supplier, and that the Client has indicated is confidential or a trade secret, will not be published or made available in any other way to third parties without the prior written consent of the Client.
5 RIGHTS AND RESPONSIBILITIES
5.1 Right to Terminate if Content Is Illegal
The Supplier reserves the right to refuse or break a contract without prior notice, if it is believed that the Client, their Website, or any material is illegal, immoral or otherwise unacceptable.
5.2 Events Beyond the Control of the Supplier
The Supplier will not be liable for breach of contract where that breach was due to software, hardware or electrical failure, natural events such as fire or other events beyond the control of the Supplier.
5.3 Supply and Pricing of Services
The Supplier reserves the right to use whoever it feels appropriate at the time for third party services, and to alter its prices as necessary without prior notice and without prejudice to existing contractual pricing agreements.
If the Client is subscribed to the WordPress maintenance package described in Section 5.4, or the WordPress security package described in Section 5.5, the Supplier agrees to give the Client at least 14 days’ written notice of any change to the monthly subscription fee, at which point the Client can choose to continue with the subscription at the new price, or to cancel their subscription.
5.4 WordPress Maintenance Package
The Supplier offers a WordPress maintenance package. For a monthly fee, the Client can request up to 1 hour of web development work on the nominated website per month. Unused time in a month cannot be carried over to the next month.
The Client is entitled to a 15% discount on the Supplier’s usual hourly work rate for any extra work requested on the nominated website during the subscription period. The discount applies only to work on the existing website, and does not apply to new website builds.
The Supplier will take daily backups of the Client’s Website, and retain each backup for a period of 90 days. The Supplier will also take reasonable steps to keep the WordPress core files, plugins and themes updated on the Client’s Website, and to fix any small issues that occur as a result of updates. If a larger fix needs to be carried out, the Supplier will discuss options with the Client. Larger fixes are billed at the Supplier’s usual hourly rate, minus the 15% discount while the Client is subscribed to the package.
Each maintenance package subscription is only valid for a single WordPress website. The Client agrees to pay the monthly fee for as long as they wish to use the service. The Client is responsible for the timely payment of the monthly fee.
The Client can cancel their maintenance package subscription at any time. The Supplier reserves the right to terminate or suspend the Client’s maintenance package subscription immediately, without prior notice or liability, for any reason. Upon termination or suspension of their maintenance package subscription, the Client’s right to use the Service will cease immediately.
5.5 WordPress Security Package
The Supplier offers a WordPress security package. For a monthly fee, the Supplier will take daily backups of the Client’s Website, and retain each backup for a period of 90 days. The Supplier will also take reasonable steps to keep the WordPress core files, plugins and themes updated on the Client’s Website. If an issue occurs as a result of an update, the Supplier will discuss options with the Client. Fixes are billed at the Supplier’s usual hourly rate.
Each security package subscription is only valid for a single WordPress website. The Client agrees to pay the monthly fee for as long as they wish to use the service. The Client is responsible for the timely payment of the monthly fee.
The Client can cancel their security package subscription at any time. The Supplier reserves the right to terminate or suspend the Client’s security package subscription immediately, without prior notice or liability, for any reason. Upon termination or suspension of their security package subscription, the Client’s right to use the Service will cease immediately.
6 INTERPRETATION
6.1 Jurisdiction
This agreement shall be governed by the laws of the State of New South Wales, Australia and the parties submit to the jurisdiction of the Courts of New South Wales, Australia.
6.2 Survival of Contract
Where one or more terms of this contract are held to be void or unenforceable for whatever reason, any other terms of the contract not so held will remain valid and enforceable at law.
6.3 Change of Terms and Conditions
These terms and conditions may change from time to time. Clients will be informed of revisions as and when they are issued.
Elated Communications Terms and Conditions of Service v2.5 (17 October 2019)