1.1 Unless otherwise agreed in writing, the supply of all Services offered by Dream Consultancy Services Pty Ltd (ACN 128974210) and/or its associates, related parties, successors and assigns (collectively referred to as "Provider") to all Clients, as the term is defined in 2.1(c) below, shall be governed by these Terms of Service ("Terms") set herein.
1.2 In addition to these Terms, the General Terms & Conditions of the Website govern the access and use of the Website by the Client.
2.1 In these Terms, the following terms have the following meanings:
(a) 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;
(b) Cancellation Notice means the written notice given to the Provider by the Client to cancel an existing Service prior to its Service End Date;
(c) Client means the individual or organisation whose details are listed in the applicable Service Order Form as the purchaser of the Services;
(d) Client Website means the website maintained or operated by the Client;
(e) Client Website Content means any and all content uploaded, posted, transmitted, emailed or otherwise made available on or through a Client Website;
(f) Client Website Copywriting Service means the provision of website content service supplied by the Provider in respect of a Client Website;
(g) Client Website Design and Development Service means the website design and development service supplied by the Provider in respect of a Client Website;
(h) Client Website Hosting Service means the website hosting service supplied by the Provider in respect of a Client Website;
(i) Client Website Maintenance Service means the website technical and programming maintenance service supplied by the Provider in respect of a Client Website;
(j) Confidential Information means, with respect to a party to these Terms:
(i) 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;
(ii) other information identified in writing as confidential by either party; and
(iii) translations, enhancements, corrections, modifications, derivative works, copies, forms, embodiments and additions of and any of the foregoing;
(k) Domain Name Service means the domain name search, registration, parking and renewal service supplied by the Provider;
(l) Email Marketing Service means the email marketing service supplied by the Provider;
(m) Force Majeure Event is any event or circumstance or combination of events and circumstances which is:
(i) beyond the control of the Provider and is not a risk for which the Provider is responsible for under these Terms; and
(ii) cannot, or the effects of which cannot, be prevented, overcome or remedied by the exercise by the Provider of a standard of care and diligence expected of the Provider;
(n) Insolvent means, with respect to the Client:
(i) it is (or states that it is) insolvent;
(ii) it is in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration or wound up or has had a receiver appointed to any part of its property;
(iii) it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute, or dissolved (other than to carry out a reconstruction or amalgamation while solvent on terms approved by the Provider);
(iv) an application or order has been made (and, in the case of an application, it is not stayed, withdrawn or dismissed), resolution passed, proposal put forward, or any other action taken, in each case in connection with the Client, which is preparatory to or could result in any of the circumstances detailed in any of paragraphs (i), (ii) and (iii);
(v) it is taken to have failed to comply with a statutory demand;
(vi) it is otherwise unable to pay its debts when they fall due;
(vii) it is (or states that it is) bankrupt; or
(viii) something having a substantially similar effect to any of the circumstances detailed in any of paragraphs (i) to (vii) above happens in connection with the Client under the law of any jurisdiction;
(o) Insurances mean business, directors and officers, health, accident, vehicle, public liability, workers' compensation and any other types of insurances capable of being procured or maintained by the Client for, or in connection with, the Client Website and/or its business;
(p) Online Client Portal means the online platform through or in connection with which the Client's Account is accessed;
(q) Minimum Service Period means, with respect to the Client Website Hosting Service, the minimum term of service which must be purchased by the Client;
(r) 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;
(s) Provider's Website meanswww.dreamconsultancy.com.au;
(t) Service Commencement Date means the date of commencement of a Service as specified in the relevant Service Order Form;
(u) Service End Date means:
(i) with respect to all Services other than Client Website Design and Development Service, the expiry date specified in the relevant Proposal/Service Order Form; and
(ii) with respect to the Client Website Design and Development Service, seven (7) days after the completion of the last milestone set out in the relevant Proposal/Service Order Form;
(v) Service Fees and Charges means the fees and charges payable by the Client in respect of a specified Service, including, without limitation, any applicable interest charges and Taxes thereof;
(w) 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:
(i) name, address, contact and email details of the Client;
(ii) Minimum Service Period (if any);
(iii) Service scope of work or package selection;
(iv) Service Fees and Charges;
(v) payment terms (upfront basis or by way of periodic or progress payments);
(vi) additional charges (if any);
(vii) other relevant specifications requested by the Client; and
(viii) with respect to the Client Website Design and Development Service:
a. applicable milestones reflecting the progress of the development of the Client Website; and
b. Client tasks;
(x) Service Period means, with respect to each Service purchased by the Client, the duration that Service as specified in Clause 7;
(y) Services mean the services to be supplied to the Client under these Terms;
(z) 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;
(aa) Tax Invoice means an invoice issued by the Provider and submitted to the Client in respect of a specified Service;
(bb) 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;
(cc) Users mean:
(i) any persons visiting or viewing the Provider's Website;
(ii) any Registered Users of the Provider's Website (as the term is defined in the General Terms & Conditions of the Website; and
(iii) any other Clients using the Services.
3.1 The Provider offers comprehensive website design and development and e-commerce solutions for businesses and organisations. The Services supplied by the Provider include, without limitation, any or all of the following:
(a) Client Website Design and Development Service, including:
(i) creation of new Client Websites;
(ii) modifications and redesigns the design, layout or content of existing Client Websites;
(iii) development of content management system tools; and
(iv) provision of an e-commerce system;
(b) Client Website Hosting Service;
(c) Client Website Maintenance Service;
(d) Client Website Copywriting Service;
(e) Domain Name Service;
(f) Email Marketing Service;
(g) Pay Per Click Advertising Service; and
(h) other new or improved services, functions, features, contents or facilities as offered from time to time.
3.2 In addition to the Services described in Clause 3.1, the Provider also offers technical support for Clients, including:
(i) assistance on resolution of Client Website issues;
(ii) bug fixes; and
(iii) 'how-to' guidance.
4.1 Service Fees and Charges for each of the Services are set out on the Provider's Website at http://www.dreamconsultancy.com.au/TermsandCondition.php or as otherwise quoted by the Provider to the Client.
4.2 The Provider reserves sole and absolute right to vary such Service Fees and Charges and/or any promotions or discounts thereof, including provision of gratis Services, at any time, and the Provider shall not be obliged to provide any reasons whatsoever for such variation. Notification of all variations shall be given to the Client as soon as may be practicable subsequent to the said variation.
4.3 Any variations in the Service Fees and Charges shall only take effect on a new or renewed Service Period of the relevant Service.
5.1 The purchase of any or all Services by the Client shall be made through the appropriate Proposal/Service Order Form or through online Client Portal section of the Provider's Website or supplied by the Provider to the Client. Each Service Order Form shall be deemed to incorporate the provisions of these Terms.
5.2 For the purposes of these Terms:
(a) all Service Order Forms submitted by the Client shall be deemed an offer by the Client to purchase Services in accordance with the specifications of the Proposal/Service Order Form and the provisions of these Terms;
(b) accordingly, the Provider shall not be bound by any Proposal/Service Order Forms and may at its sole discretion, review all specifications contained therein and by way of a written notice to the Client, reject or amend the same and/or reject the Proposal/Service Order Form in its entirety. Upon acceptance by the Provider, the Client shall be bound by all specifications set out in the Service Order Form, subject to any approved rejections or amendments of the Provider; and
(c) a contract for the supply of Services based on such specifications or modified specifications, as the case may be, and on the provisions of these Terms shall be deemed to have occurred when the Provider issues to the Client a Tax Invoice indicating its acceptance of the Client's offer.
5.3 Any changes to the specifications subsequent to the deemed occurrence of the contract for the supply of Services under Clause 5.2(c) shall be made by the Client only by way of a written request to
the Provider and shall be effective only upon written acceptance of the request by the Provider. The Provider is entitled to accept, reject or modify any such requests for changes.
6.1 Payment of Services Fees and Charges may be made by way of credit card through the Client's Account on the Online Client Portal or by any other methods specified by the Provider from time to time.
6.2 Service Fees and Charges for a Service must be paid on an 'upfront' basis made together with the submission of the applicable Proposal/Service Order Form by the Client. If only a portion of the Service Fees and Charges or a deposit payment for a Service is required to be made upfront with the remainder of the Service Fees and Charges payable on a progressive or periodic basis, such remainder shall be due and payable by the Client on the date of issue of the relevant Tax Invoice.
6.3 The Client hereby authorises the Provider to charge the Client's credit card on each due date the amount due and payable by the Client under a Tax Invoice.
6.4 In addition to the Service Fees and Charges for each Service, the Provider shall be entitled to impose further charges in respect of the following:
(a) any requests for changes made to a Proposal/Service Order Form by the Client and accepted by the Provider in accordance with Clause 5.3;
(b) excessive use of the Provider's technical support service for reasons other than the fault or negligence of the Provider; and
(c) excessive CPU or bandwidth usage in accordance with Clause 8.3(c)(vi).
6.5 In addition to any remedies available to the Provider by law or equity or otherwise, the Provider shall be entitled to impose the following charges in the event that the Client fails to pay the amount due and payable within seven (7) days of the date of issue of the relevant Tax Invoice:
(a) a late fee charge;
(b) interest at a rate of 1.5% per month on the said amount;
(c) an administrative charge in respect of any bounced cheques or credit card charge backs;
(d) a reconnection fee for access to, and use of, an expired Service renewed by the Client subsequent to its Service End Date in accordance with Clause 18.1(c)(ii);
(e) a reactivation fee for reactivation of a suspended or terminated Account in accordance with Clause 18.3(b).
6.6 All Service Fees and Charges exclude Goods and Services Tax unless otherwise noted. Any Goods and Services Tax incurred in respect of a Service shall be charged by the Provider at the applicable rate and must be paid by the Client at the same time or together with the relevant Service Fees and Charges.
6.7 The Client hereby authorises the Provider to obtain from, and give to, credit reporting agencies and other credit providers credit information about the Client, including, without limitation, information relating to the credit history and creditworthiness, credit standing and credit capacity of the Client.
6.8 The Provider hereby reserves the right to refuse any application by the Client for access to, and use of, the Services or for credit payments in respect of the Services and may, in any event, monitor ongoing usage of, or restrict the Client's access to the Services on the basis of the Provider's assessment of credit information received in respect of the Client or on the basis of any other information or prior dealings with the Client or any of its related entities. The Client shall be entitled to a copy of all credit information obtained from, or provided to, credit reporting agencies and other credit providers.
7.1 The Service Period for each Service purchased by the Client shall commence on after the first deposit payment is made and shall end on the Service End Date specified in the applicable Proposal/Service Order Form.
7.2 Any renewal, cancellation, suspension or termination of a Service shall be made in accordance with Clause 18.
8.1 General: The Client acknowledges and agrees that in agreeing to purchase, or in purchasing any or all of the Services, the Provider makes no representation or warranty as to merchantability or fitness for a particular purpose, including any representation or warranty that a Service:
(a) will be uninterrupted or error free;
(b) will meet the Client's requirements, including, without limitation:
(i) any requirements relating to access, use and/or operation of any of the Services supplied to the Client;
(ii) any requirements relating to design, hosting, administration and/or operation of a Client Website subsequent to the purchase and/or use of the Client Website Design and Development Service, the Client Website Hosting Service or the Domain Name Service;
(iii) any requirements relating to sales or profits, or lack of sales or profits thereof, as subsequent to the purchase of the Email Marketing Service or the Pay Per Click Advertising Service; or
(c) will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the Services or the Systems.
8.2 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:
(a) the Client must perform in a prompt manner all tasks assigned to the Client pursuant to the Proposal/Service Order Form or modified Service Order Form, as the case may be, together with any further tasks assigned to the Client pursuant to an agreed change to the specifications in accordance with Clause 5.3;
(b) the Client must provide reasonable assistance and cooperation to the Provider in order for the design and development of the Client Website to be completed in a timely and efficient manner;
(c) 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;
(d) 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;
(e) unless the Client Website Maintenance Service is purchased by the Client, the Client shall be responsible for initially populating and then maintaining any databases on the Client Website;
(f) unless the Client Website Copywriting Service is purchased by the Client must provide all Client Website Content within two (2) weeks of the Service Commencement Date under the relevant Service Order Form;
(g) the Provider shall create the design and layout of the Client Website in substantial conformity with materials given to the Provider by the Client;
(h) 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;
(i) in developing the Client Website:
(i) 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;
(ii) such usage is subject to the copyright notices of the Provider and third parties respectively which must be adhered to by the Client;
(iii) with the exception of the limited warranty given by the Provider in accordance with Clause 15.2 and to the extent permitted by law, the Provider makes no representations, warranties or conditions, whether expressed or implied, relating to the functionality, display, artistry, design or layout of the Client Website developed for the Client or that the Client Website will meet the requirements of the Client or that the operation of each page of the Client Website shall be uninterrupted or error-free. Accordingly, all Client Website Design and Development services are supplied on an "as-is" basis.
8.3 Client Website Hosting Service: In agreeing to purchase, or in purchasing the Client Website Hosting Service, the Client further acknowledges and agrees that:
(a) all Client Websites are hosted on Systems operated by either the Provider or third party suppliers on behalf of the Provider. Accordingly:
(i) scheduled and/or unscheduled System maintenance may be required to be performed by the Provider or the third party from time to time and such maintenance may necessitate Client Websites to be placed offline for a certain duration. The Provider shall endeavour to provide prior written notification of the maintenance but shall not be obliged to do so under these Terms;
(ii) the Provider may, but shall not be obliged to, archive Client Website Content using backup mechanisms on a regular basis for the purposes of disaster recovery and in the event of equipment failure or data corruption, the Provider may restore Client Website Content from its last known working archive. Notwithstanding the aforesaid, the Client acknowledges and agrees that:
a. 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;
b. 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;
c. 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;
(iii) the Provider or any third party suppliers may, in their absolute discretion, upgrade, revise or change any or all parts of the Systems, or may migrate from one System to another, at any time and from time to time. Neither the Provider nor any third party suppliers shall be liable whatsoever for any loss or damage resulting from such upgrade, revision, change or migration and the Provider shall not take any responsibility for any Services failure resulting from the same;
(b) Client Websites are subject to the use of spam and virus filters maintained or operated by third party suppliers. The Provider shall not be liable whatsoever for any loss or damage resulting from the use of such spam or virus filters;
(c) 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:
(i) the Client must conduct such tests and computer virus scanning as may be necessary to ensure that any and all Client Website Content uploaded to the Systems do not contain any computer virus and will not in any way, corrupt the data or systems of any User;
(ii) the Client must not upload, post, email, transmit or otherwise make available:
a. 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;
b. any Client Website Content that the Client does not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
c. any Client Website Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
d. 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;
e. 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
f. 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
(iii) 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;
(iv) 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;
(v) without incurring any liability to the Client and at the Client's sole cost and expense:
a. the Provider shall have the right (but not the obligation) in their sole discretion to remove any Client Website Content uploaded, posted, emailed, transmitted or otherwise made available on the Systems which may, in the Provider's sole opinion, be in breach or any provisions herein; and
b. 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:
(I) comply with legal process;
(II) enforce these Terms;
(III) respond to the Client's requests for technical support; and
(IV) protect the rights, property, or personal safety of the Systems, Users and/or the public.
(vi) the Client is strictly prohibited from using excessive amounts of CPU processing or excessive bandwidth, disk space and other resources on the Provider's Systems which is inconsistent with normal usage patterns and which exceeds the amount purchased by the Client. Any violation of this Clause may result in corrective action by the Provider, including assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement in accordance with Clause 18, which actions may be taken at the Provider's sole and absolute discretion;
(d) the Client grants the Provider a non-exclusive, royalty-free, worldwide license of the duration of the Service Period or any renewals or extensions thereafter, to do any or all of the following to the extent necessary to perform the Services:
(i) 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
(ii) make archival or back-up copies of the Client Website and Client Website Content.
8.4 Domain Name Service: In agreeing to purchase, or in purchasing the Domain Name Service for parking a domain name, the Client acknowledges and agrees that:
(a) the Provider may point the domain name or its domain name server to any of the Provider or the Provider's affiliates' web pages;
(b) the Provider and/or its affiliates may place advertising on the Client's parked page; and
(c) the Client shall have no rights or entitlements, and shall waive all rights and entitlements, to receive any compensation whatsoever from the Provider and/or its affiliates' use of the said page for their commercial gain.
9.1 In using any or all of the Services, the Client acknowledges and agrees that:
(a) it is responsible for obtaining access to the internet and that such access may involve third party fees (such as internet service provider or airtime charges). The Client is solely responsible for such fees and in addition, must provide and is responsible for all equipment necessary to access the internet;
(b) it may not:
(i) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or data transmitted through the Systems or any parts thereof;
(ii) disrupt the normal flow of dialogue, cause a screen to "scroll" faster than any Users is able to type, or otherwise act in a manner that negatively affects a User's ability to engage in real time exchanges;
(iii) manipulate or bypass the Systems for any reason whatsoever, including bypassing of any restrictions or limits placed on the Services by the Provider;
(iv) interfere with or disrupt the Systems or disobey any requirements, procedures, policies or regulations of any networks connected thereof;
(v) take any action that places an unusually large load on the infrastructure of the Systems, or bandwidth connecting to the Systems, or take any action that includes the use of any data accumulation, tool, robot or spider to compile, disseminate, extract, process, monitor or copy any web pages;
(vi) intentionally or unintentionally violate any applicable local, state, national or international law; and
(vii) attempt to override or circumvent any of the usage rules embedded into the Systems or any parts thereof.
(c) subject to Clause 11, 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.
10.1 Credit Card payment of all Service Fees and Charges by the Client must be made through the Client's Account on the Online Client Portal. Such payments are made using secure facilities hosted by third parties. Notwithstanding the aforesaid, the transmission of information through the internet is never entirely secure.
10.2 Accordingly, while the Provider shall use its best efforts to engage a reputable third party supplier for the operation and management of payment facilities made through or in connection with the Client's Account on the Online Client Portal, the Client acknowledges and agrees that, in paying through the said Client's Account:
(a) neither the Provider nor the third party supplier is able to guarantee the security or privacy of any information submitted or provided through or in connection with the Client's Account;
(b) any submission or provision of information (including provision of credit card information) by the Client through or in connection with the Client's Account shall be made at the Customer's own risk;
(c) the Client is responsible for ensuring that the transaction, credit card information and all other details provided by the Client in relation to any payments made through or in connection with the Client's Account are correct;
(d) the Provider disclaims any and all liability for, or arising in connection with:
(i) any interception, 'hacking' or other unauthorised access of such information by any unauthorised third parties; and
(ii) any incorrect transactions, errors or otherwise caused by factors outside of the control of the Provider and/or the third party supplier.
11.1 Systems and Services:
(a) Save for any domain names purchased or owned by the Client and/or its related entities, the Client hereby acknowledges and agrees that:
(i) 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;
(ii) 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;
(iii) in granting the access and use of the Services, the Provider and/or the third party supplier is only granting a limited non-exclusive licence for the duration of the Service Period in respect of the same; and
(iv) the Client may not copy, modify, 'reverse-engineer' or commercially exploit in any other way the Systems or the Services or any parts thereof.
11.2 Client Website Design, Layout and Content:
(a) 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:
(i) with respect to pre-existing works described in Clause 8.2(i), by the Provider and/or the third party; and
(ii) 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.
(b) 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 SAVE FOR any materials or works included in Clauses 11.2(a)(i) or (ii).
11.3 All rights which are not expressly granted to the Client shall hereby be reserved by the Provider.
12.1 The Client hereby agrees and warrants that, save for any Taxes specified in any Tax Invoice or forming part of any Service Fees or Charges, it shall be solely responsible for the payment of all Taxes and other costs, expenses, liabilities and claims arising from, or in connection with, the access, use and operation of any Client Website and/or the use of the Services, including those incurred in respect of the Client's employees, sub-contractors or agents.
12.2 The Client bears the obligation to provide, and ensure the currency of, all necessary Insurances maintained by a prudent business of a similar nature to that of the Client's and shall provide and maintain all Insurances required by law to be maintained, none of which the Provider is responsible for.
13.1 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.
13.2 The Client shall have no authority or power to bind the Provider or to contract in the Provider's name or to create a liability against the Provider in any way or for any purpose.
14.1 The Client hereby represents and warrants that:
(a) the Client is duly authorised to enter into these Terms in accordance with the method or form of authorisation required by its constitution or by applicable laws under its jurisdiction of formation or incorporation;
(b) when executed, these Terms shall be legal, valid and binding on the Client, enforceable against the Client in accordance with its terms and conditions subject to all applicable laws, and will not violate or create a default under any law, rule, regulation, judgment, order, instrument, agreement or charter document binding on the Client and/or its property;
(c) the Provider has not given to the Client, and the Provider hereby expressly disclaims to the maximum extent permitted by law, all conditions, warranties, representations, liabilities and obligations, whether express or implied, under these Terms or under any other communications between the parties;
(d) the Provider shall not be liable for any direct or indirect, consequential or special loss or damages that may arise in respect of these Terms and that the Client has agreed to enter into these Terms based on its own judgment and discretion, and expressly disclaims any reliance upon any statements or representations made by the Provider;
(e) there are no pending or threatened actions or proceedings before any court or administrative agency that could have a material adverse effect on performance of the Client's obligations under these Terms, nor is the Client in default under any material loan, lease or purchase obligation; and
(f) all information furnished, and to be furnished by the Client, shall be true, correct and complete.
15.1 Subject to the limited warranty under Clause 15.2 in respect of the Client Website Design and Development Service, the Provider, its subsidiaries, affiliates, officers, agents, co-branders or other partners and employees shall not be liable to the Client for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for:
(a) damage to property;
(b) loss of profits or revenue;
(c) loss of data;
(d) goodwill; and
(e) 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:
(a) the Systems;
(b) the Services, and the Client's use thereof;
(c) any Client Website Content, whether authorised or unauthorised and whether in original form or in any altered form thereof;
(d) the results achieved, or unachieved, from the use of the Services.
15.2 The Provider hereby agrees, with respect to any Client Website Design and Development Service purchased by the Client, to provide the Client with a limited warranty for a duration of three (3) months, ending on the last day of the third (3rd) month of the relevant Service End Date. The warranty shall be subject to the following conditions:
(a) the warranty shall be limited solely to locating and fixing any bugs occurring on the Client Website;
(b) the warranty cannot be enforced if:
(i) 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
(ii) in the sole and absolute discretion of the Provider, the problem or issue is too severe to be fixed, such problem or issue having been caused by reasons beyond the control of the Provider, including by reason of the fault or negligence of the Client, its employees or any other representatives.
15.3 The Client agree to fully indemnify, defend and hold the Provider, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any and all claims or demands, liabilities, damages, losses, costs and expenses, including reasonable attorneys' fees, made by any third party due to or arising out of the Client's:
(a) access and use of, or connection with, the Systems;
(b) use or misuse of any Services;
(c) breach of any obligations under these Terms; or
(d) violation of the rights of any person.
15.4 Subject to the provisions of these Terms, if for any reason, the Provider is liable to the Client for loss or damage of any kind, however caused, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to these Terms, such liability shall be limited only to the total Service Fees and Charges paid by the Client for the Services in the previous three (3) month period.
16.1 Disputes or differences arising between the Client and the Provider in relation to these Terms shall primarily be determined by way of amicable agreement between the Client and the Provider.
16.2 If the parties cannot resolve such dispute within thirty (30) days of when the dispute is first raised by either or both the parties, the parties agree that the dispute should be referred to an external consultant or advisor who specialises in the resolution of such disputes. Any decision made by the external consultant or advisor shall be final and bindiNg on the parties.
16.3 All costs, charges and expenses incurred as a result of the parties' use of the external consultant or advisor shall be borne by the parties equally.
16.4 The parties agree to adhere to the procedures set out in this Clause before enforcing any other rights permitted by law in the resolution of any disputes under these Terms.
17.1 A party notifying or giving notice under these Terms must give notice:
(a) in writing;
(b) if directed at the Provider, to the postal address, fax number or email address specified on the Provider's contact page at http://www.dreamconsultancy.com.au/contact_us.php or any other address as notified in writing by the Provider to the Client from time to time;
(c) if directed at the Client, to the postal address, fax number or email address specified in the Client's Account as updated from time to time;
17.2 A notice given in accordance with this Clause is received:
(a) If left at the recipient's address, on the date of delivery;
(b) if sent by prepaid post, five (5) after the date of posting;
(c) 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
(d) if sent by email, when the sender does not receive any failed delivery email notification from either its, or the recipient's, mail server within five (5) days after the date of the email.
18.1 Renewal by Client:
(a) the Client may renew, at any time before the expiry of the current Service Period, any of the Services purchased by it, apart from Client Website Design and Development Service, by extending the Service Period for a further duration of not less than the Minimum Subscription Period (if any);
(b) such renewal shall be made by the Client by completing the relevant Service Order Form and paying the necessary Service Fees and Charges in accordance with Clauses 5 and 6 respectively;
(c) in the event that no renewal is made by the Client in accordance with this Clause, then:
(i) with respect to Client Website Hosting Service:
a. the Service Period shall be extended on a monthly basis at the end of the current Service Period until such time a written notice is given by the Client to the Provider for the discontinuance of the Client Website Hosting Service;
b. such notice shall take effect at the end of the current month of extension;
c. payment for the Service Fees and Charges in respect of each month of extension must be paid in accordance with Clause 6; and
d. these Terms shall remain valid and in force for the entire duration of the extended Service Period;
(ii) with respect to all other Services:
a. the Service shall be deemed to expire on its Service End Date and access to, and use of, the Service shall be withdrawn by the Provider; and
b. any resumption of access to, and use of, the Service subsequent to the Service End Date may require the payment of a reconnection fee.
18.2 Cancellation by Client:
(a) the Client may, subject to any applicable Minimum Service Period, cancel, at any time before the expiry of the current Service Period, the Services by way of a written Cancellation Notice given to the Provider or any other way specified by the Provider from time to time;
(b) the following consequences shall apply to any and all cancellations made by the Client under Clause 18.2(a):
(i) Client Website Hosting Service with a 30 Day Money Back Guarantee:
a. subject to paragraph b., if the Cancellation Notice was given to the Provider within 30 days of the applicable Service Commencement Date, then:
(I) the cancellation under Clause 18.2(a) shall take effect immediately;
(II) any 'upfront' payments made in respect of the Client Website Hosting Service Fees and Charges, but not in respect of any other Services purchased by the Client, shall be refunded to the Client; and
(III) the amount representing the total Service Fees and Charges payable by the Client under Clause 18.2(b)(ii) in respect of non-30 Day Money Back Guarantee Services, if any, shall deducted from the refund, including the Service Fees and Charges applicable to the purchase of a domain name by the Client. If such domain name was given to the Client free of charge, the deduction shall still occur unless the Client specifies in the Cancellation Notice that the domain name shall be surrendered to the Provider;
b. notwithstanding paragraph a. above, the 30 Day Money Back Guarantee shall apply only to payment of the Client Website Hosting Service by way of credit card;
c. if the Cancellation Notice was given to the Provider beyond 30 days of the applicable Service Commencement Date, then Clause 18.2(b)(ii) shall apply as if that Service was a Service without a 30 Day Money Back Guarantee;
(ii) Services without a 30 Day Money Back Guarantee:
a. a cancellation under Clause 18.2(a) shall take effect on the applicable Service End Date of the current Service Period in respect of each Service; and
b. unless otherwise consented to by the Provider in its sole and exclusive discretion:
(I) no refunds shall be given for any unused portions of upfront or advanced payments made in respect of the applicable Service Fees and Charges ; and
(II) the Client shall be charged for the balance of payment in respect of the current Service Period of that Service if no such upfront or advanced payments were made in respect of the applicable Service Fees and Charges .
18.3 Suspension or termination by Provider:
(a) the Provider may, without notice, suspend or terminate the Services or disconnect or deny the Client access to the Services:
(i) during any technical failure, modification or maintenance involved in respect of the Systems or the Services;
(ii) 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;
(iii) if the Client is Insolvent; or
(iv) if a Force Majeure Event continues beyond one (1) month from the date of commencement of such event;
(b) if a suspension or termination occurred by reason of Clause 18.3(a)(ii), reactivation of the Client's Account or resumption of access and use of the Services shall be made entirely at the Provider's discretion and on any terms and conditions as the Provider thinks fit, including the condition for payment of a reactivation fee;
(c) unless Clause 18.3(a)(iv) applies, the Client shall remain liable for all Service Fees and Charges due and payable throughout the period of suspension.
18.4 In the event of a suspension or termination for any reason whatsoever, the Provider shall be under no obligation whatsoever to provide the Client with any copies of Client Website Content or any other information, materials or data stored in the Client's Account.
19.1 Each party acknowledges that it ("Recipient") may receive Confidential Information of the other party (" Disclosing Party"). Notwithstanding the aforesaid, each party:
(a) to keep Confidential Information confidential;
(b) to disclose Confidential Information to its employees or representatives only on a 'need to know' basis;
(c) to not disclose the Confidential Information to any third parties other than the Recipient's representatives;
(d) to not communicate any opinions regarding the Confidential Information to any third parties other than the Recipient's representatives;
(e) to not use the Confidential Information for any purposes except for the purpose of carrying out its obligations under these Terms;
(f) to not copy, reproduce, divulge, publish or circulate (or authorise or permit any other person to copy, reproduce, divulge, publish or circulate any Confidential Information.
19.2 The Recipient's obligations of confidentiality shall not apply to Confidential Information to the extent that:
(a) the Recipient was in lawful possession of the Confidential Information before disclosure by the Disclosing Party;
(b) the Confidential Information has been independently developed by any servant, agent or employee of, or other person on behalf of, the Recipient without access to or use or knowledge of the Confidential Information disclosed by the Disclosing Party;
(c) the Confidential Information is in or subsequently comes into the public domain other than by breach by the Recipient of its obligations hereunder;
(d) the Confidential Information is received by the Recipient without restriction on disclosure or use from a third party where such third party has a lawful right to make such disclosure;
(e) the Confidential Information is required to be disclosed by the Recipient by law, court order or other legal or regulatory requirement provided that the Recipient shall notify the Disclosing Party of the requirement for disclosure; or
(f) the Provider and the Client agree in writing that the information is not confidential.
19.3 Immediately upon the earlier of:
(a) the Disclosing Party's written request; or
(b) the termination or expiration of these Terms for any reason,
without limiting any other obligations of the Recipient under these Terms, the Recipient must return or, at the Disclosing Party's direction, destroy all Confidential Information of the Disclosing Party in its possession.
20.1 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.
21.1 These Terms shall represent the entire agreement between the parties and supersedes all previous agreements, terms, conditions, representations or claims which may have been made or agreed upon between the parties.
22.1 These Terms shall be governed exclusively by the laws of Victoria, and the parties hereby submit to the exclusive jurisdiction of the courts of that state.
23.1 The failure of the Provider to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.
23.2 If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect.