Unless otherwise agreed in writing, the supply of all Services offered by Sunlight Digital Technologies (ABN 306 364 181 69) 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 (see below), shall be governed by these Terms of Service (“Terms “) set herein.
2. Definitions
2.1. In these Terms, the following terms have the following meanings:
2.1.1. Account means the account designated by the Provider for the access, use and administration of the Services on the Online Client Portal of the Website;
2.1.2. Client means the individual or organisation whose details are listed in the applicable Proposal/Service Order Form as the purchaser of the Services;
2.1.3. Client Website means the website maintained or operated by the Client;
2.1.4. Client Website Content means any and all content uploaded, posted, transmitted, emailed or otherwise made available on or through a Client Website;
2.1.5. Client Website Copy writing Service means the provision of website content service supplied by the Provider in respect of a Client Website;
2.1.6. Client Website Design and Development Service means the website design and development service supplied by the Provider in respect of a Client Website;
2.1.7. Client Website Hosting Service means the website hosting service supplied by the Provider in respect of a Client Website;
2.1.8. Client Website Maintenance Service means the website technical and programming maintenance service supplied by the Provider in respect of a Client Website;
2.1.9. Confidential Information means, with respect to a party to these Terms:
2.1.9.1. all intellectual property rights, trade secrets, each party’s business, products and services, finances, customer names, sales figures, employee details, pricing methodologies, and any other information relating to each party’s internal operations, plans, policies, and practices and transactions in whatever media;
2.1.9.2. Confidential Information means, with respect to a party to these Terms:
2.1.9.3. translations, enhancements, corrections, modifications, derivative works, copies, forms, embodiments and additions of and any of the foregoing;
2.2. translations, enhancements, corrections, modifications, derivative works, copies, forms, embodiments and additions of and any of the foregoing;
3. Services
3.1. 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:
3.1.1. Client Website Design and Development Service, including:
3.1.1.1. creation of new Client Websites;
3.1.1.2. modifications and redesigns the design, layout or content of existing Client Websites;
3.1.1.3. development of content management system tools; and
3.1.1.4. provision of an e-commerce system;
3.1.1.5. provision of custom web application;
3.1.2. Client Website Hosting Service;
3.1.4. Client Website Copywriting Service;
3.1.5. Domain Name Service;
3.1.6. Email Marketing Service;
3.1.7. Search Engine Optimization Service;
3.1.8. Social Media Marketing Service;
3.1.9. Pay Per Click Advertising Service; and
3.1.9. 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
3.2.1. assistance on resolution of Client Website issues;
3.2.2. ‘how-to’ guidance.
4. Service Fees and Charges
4.1. Service Fees and Charges for each of the Services are set out on the Provider’s Website at http://sunlight-digital.com/terms-of-use/ or as otherwise agreed in the Proposal/Service Order Form.
4.2. The Provider reserves sole and absolute right to vary such Service Fees and Charges and/or any promotions or discounts thereof, including provision of gratis Services, at any time, and the Provider shall not be obliged to provide any reasons whatsoever for such variation. Notification of all variations shall be given to the Client as soon as may be
practicable subsequent to the said variation.
4.3. Any variations in the Service Fees and Charges shall only take effect on a new or renewed Service Period of the relevant Service.
5. Proposal/Service Order Forms and Subsequent Changes
5.1. The purchase of any or all Services by the Client shall be made through the appropriate Proposal/Service Order Form. Each Proposal/Service Order Form shall be deemed to incorporate the provisions of these Terms.
5.2. For the purposes of these Terms:
5.2.1. all Proposal/Service Order Forms submitted by the Client shall be deemed an offer by the Client to purchase Services in accordance with the specifications of the Proposal/Service Order Form and the provisions of these Terms;
5.2.2. 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 Proposal/Service Order Form, subject to any approved rejections or amendments of the Provider; and
5.2.3. a contract for the supply of Services based on such specifications or modified specifications, as the case may be, and on the provisions of these Terms shall be deemed to have occurred when the Provider issues to the Client a Tax Invoice indicating its acceptance of the Client’s offer.
5.3. 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 written acceptance of the request by the Provider. The Provider is entitled to accept, reject or modify any such requests for changes.
6. Payment of Service Fees and Charges
6.1. Service Fees and Charges for a Service must be paid on an ‘upfront’ basis made together with the submission of the applicable Proposal/Service Order Form by the Client. If only a portion of the Service Fees and Charges or a deposit payment for a Service is required to be made up front 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.
6.2. The Client agrees that for any payments made through American Express Cards and Diners Club Cards the Provider will levy a surcharge of 3.5% on the Service Fees and Charges.
6.3. The Client hereby authorises the Provider to charge the Client’s credit card as specified in the applicable Proposal/Service Order Form on each due date the amount due and payable by the Client under a Tax Invoice.
6.4. 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:
6.4.1. 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; and/or
6.4.2. excessive use of the Provider’s technical support service for reasons other than the fault or negligence of the Provider;
6.5. All Service Fees and Charges exclude Goods and Services Tax unless otherwise noted. Any Goods and Services Tax incurred in respect of a Service shall be charged by the Provider at the applicable rate and must be paid by the Client at the same time or together with the relevant Service Fees and Charges.
7. Service Period
7.1. Provided any payment as specified in the applicable Proposal/Service Order Form is made the Service Period for each Service purchased by the Client shall commence on the Start Date and shall end on the Service End Date specified in the applicable Proposal/Service Order Form.
7.2. Any renewal or cancellation of a Service shall be made in accordance with Clause 8 as noted therein for the applicable Service and any suspension or termination shall be in accordance with Clause 15.
8. Conditions for Purchasing the Services
8.1. General: The Client acknowledges and agrees that in agreeing to purchase, or in purchasing any or all of the Services, the Provider shall use its best 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:
8.1.1. will be uninterrupted or error free;
8.1.2. will meet the Client’s requirements, including, without limitation:
8.1.2.1. any requirements relating to access, use and/or operation of any of the Services supplied to the Client;
8.1.2.2. any requirements relating to design, hosting, administration and/or operation of a Client Website subsequent to the purchase and/or use of the Client Website Design and Development Service, the Client Website Hosting Service or the Domain Name Service;
8.1.2.3. any requirements relating to sales or profits, or lack of sales or profits thereof, as subsequent to the purchase of the Email Marketing Service or the Pay Per Click Advertising Service or SEO Service or Social Media Marketing Service; or
8.1.3. will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the Services or the Systems.
8.2. 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:
8.2.1. the Client must perform in a prompt manner all tasks assigned to the Client pursuant to the Proposal/Service Order Form or modified Service Order Form, as the case may be, together with any further tasks assigned to the Client pursuant to an agreed change to the specifications in accordance with Clause 5.3;
8.2.2. the Client must provide reasonable assistance and cooperation to the Provider in order for the design and development of the Client Website to be completed in a timely and efficient manner;
8.2.3. accordingly, the Provider shall not be deemed in breach of these Terms, any specifications contained in the Proposal/Service Order Form or any modifications or changes thereof, or any milestones or deadlines in the event of a failure by the Provider to meet its responsibilities and time schedules as a result of a delay caused by the Client;
8.2.4. the Client must ensure, at its sole cost and expense, that the Client’s current computer systems, including hardware, software, applications, features or functions support the operation of the Client Website developed by the Provider;
8.2.5. unless the Client Website Maintenance Service is purchased by the Client, the Client shall be responsible for initially populating and then maintaining any content or data on the Client Website;
8.2.6. unless the Client Website Copywriting Service is purchased by the Client must provide all Client Website Content within two (2) weeks of the Service Commencement Date under the relevant Service Order Form;
8.2.7. the Provider shall create the design and layout of the Client Website in substantial conformity with materials given to the Provider by the Client;
8.2.8. the Client must ensure that the prototype Website made available to the Client for the Client’s viewing for the duration of the development of the Client Website is kept confidential at all times. The Provider shall not be responsible for any breaches of confidentiality or security occurring as a result of the Client or any of the Client’s employees or representatives’ authorised or unauthorised disclosure of the prototype Client Website to third parties;
8.2.9. in developing the Client Website:
8.2.9.1. the Provider is authorised to use any pre-existing proprietary works owned by the Provider or its related entities, or use or purchase licences for the use of, proprietary works of third parties which are deemed necessary to ensure the proper functionality of the Client Website, including open source products, server-side applications, clip arts, “back-end” applications, music, stock images, or any other copyrighted work;
8.2.9.2. such usage is subject to the copyright notices of the Provider and third parties respectively which must be adhered to by the Client;
8.2.9.3. with the exception of the limited warranty given by the Provider in accordance with Clause 13.2 and to the extent permitted by law, the Provider makes no representations, warranties or conditions, whether expressed or implied, relating to the functionality, display, artistry, design or layout of the Client Website developed for the Client or that the Client Website will meet the requirements of the Client or that the operation of each page of the Client Website shall be uninterrupted or error-free. Accordingly, all Client Website Design and Development services are supplied on an “as-is” basis.
8.2.10. upon payment of 50% of the Service Fees and Charges, the client shall be entitled to cancel the Service prior to the client confirming the Specifications for the Service or within 10 days of the Order Date, whichever is earlier.
9. Conditions for Using the Services
9.1 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.
9.2 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.
9.3 Client must grant the Provider with 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 information and other relevant information required to enable Provider to comply with its obligations under this Agreement.
9.4 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 modification to the Client’s Website.
10. Intellectual Property Rights and Ownership
10.1 Systems and Services:
10.1.1 Save for any domain names purchased or owned by the Client and/or its related entities, the Client hereby acknowledges and agrees that:
10.1.1.1 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;
10.1.1.2 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;
10.1.1.3 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
10.1.1.4 the Client may not copy, modify, ‘reverse-engineer’ or commercially exploit in any other way the Systems or the Services or any parts thereof.
10.2 Client Website Design, Layout and Content:
10.2.1 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:
10.2.1.1 with respect to pre-existing works described in Clause 8.2(i), by the Provider and/or the third party; and
10.2.1.2 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.
10.2.2 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.
10.3 All rights which are not expressly granted to the Client shall hereby be reserved by the Provider.
11. Relationship of Parties
11.1 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.
11.2 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.
12. Client General Warranties
12.1 The Client hereby represents and warrants that:
12.1.1 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;
12.1.2 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;
12.1.3 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 under any other communications between the parties;
12.1.4 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 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;
12.1.5 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
12.1.6 all information furnished, and to be furnished by the Client, shall be true, correct and complete.
13. Exclusion of Liability and Client Indemnity
13.1 Subject to the limited warranty under Clause 13.2 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:
13.1.1 damage to property;
13.1.2 loss of profits or revenue;
13.1.3 loss of data;
13.1.4 goodwill; and
13.1.5 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:
(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.
13.2 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:
13.2.1 the warranty shall be limited solely to locating and fixing any bugs occurring on the Client Website;
13.2.2 the warranty cannot be enforced if:
13.2.2.1 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
13.2.2.2 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.
13.3 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:
13.3.1 access and use of, or connection with, the Systems;
13.3.2 use or misuse of any Services;
13.3.3 breach of any obligations under these Terms; or
13.3.4 violation of the rights of any person.
13.4 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.
14. Notices
14.1 A party notifying or giving notice under these Terms must give notice:
14.1.1 in writing;
14.1.2 if directed at the Provider, to the postal address, fax number or email address specified on the Provider’s contact page at http://sunlight-digital.com/contact/ or any other address as notified in writing by the Provider to the Client from time to time;
14.1.3 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;
14.2 A notice given in accordance with this Clause is received:
14.2.1 If left at the recipient’s address, on the date of delivery;
14.2.2 if sent by prepaid post, five (5) after the date of posting;
14.2.3 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
14.2.4 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.
15. Suspension, Termination and Transfer
15.1 Suspension and Termination
15.1.1 the Provider may, without notice, suspend or terminate the Services or disconnect or deny the Client access to the Services:
15.1.1.1 during any technical failure, modification or maintenance involved in respect of the Systems or the Services;
15.1.1.2 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 jeopardizing the operation of the Systems or the Services, until the breach (if capable of remedy) is remedied;
15.1.2 if a suspension or termination occurred by reason of Clause 15.1.1.2, 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;
15.1.3 the Client shall remain liable for all Service Fees and Charges due and payable throughout the period of suspension.
15.1.4 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.
15.2 Transfer of Service
15.2.1 The Client agrees that the Service is non-transferable unless the Client obtains prior written confirmation from the Provider consenting to transfer the Service
15.2.2 The Client must provide such further information of the Transferee as the Provider may require to consider the financial ability of the Transferee to meet the Terms
15.2.3 The Provider may in its absolute discretion disagree to Transfer the Service.
16. Confidentiality
16.1 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:
16.1.1 To employees, legal advisers, auditors and other consultants requiring the information for the purposes of this agreement; or
16.1.2 With the consent of the party who supplied the information; or
16.1.3 If the information is prior to 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
16.1.4 If required by law or a stock exchange regulation;
16.1.5 If the information is or becomes generally and publicly available other than through the default of a party who divulges the information;
16.2 The provisions of this clause continue in full force and effect for a period of 2 years after the termination of this agreement.
17. Assignment
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
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.
19. Governing Law
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.
20. Waiver and Severability
20.1 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.
20.2 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.