1.1 “Marketing Domain Pty Ltd T/A Adelaide Web Designer” means Marketing Domain Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Marketing Domain Pty Ltd.
1.2 “Client” means the person/s buying the Services as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Services” means all Service or Services supplied by Marketing Domain Pty Ltd to the Client at the Client’s request from time to time (where the context so permits the terms ‘Service’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Services as agreed between Marketing Domain Pty Ltd and the Client in accordance with clause 4 below.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Services.
2.2 These terms and conditions may only be amended with Marketing Domain Pty Ltd’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and Marketing Domain Pty Ltd.
3.1 At Marketing Domain Pty Ltd’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by Marketing Domain Pty Ltd to the Client; or
(b) Marketing Domain Pty Ltd’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of fifteen (15) days
3.2 Marketing Domain Pty Ltd reserves the right to change the Price if a variation to Marketing Domain Pty Ltd’s quotation is requested. Any variation from the plan of scheduled works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties or as a result of increases to Marketing Domain Pty Ltd in the cost of labour) will be charged for on the basis of Marketing Domain Pty Ltd’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
3.3 At Marketing Domain Pty Ltd’s sole discretion a non-refundable deposit may be required.
3.4 Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by Marketing Domain Pty Ltd, which may be:
(a) on delivery of the Services;
(b) before delivery of the Services;
(c) by way of instalments/progress payments in accordance with Marketing Domain Pty Ltd’s payment schedule;
(d) thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which shall be either seven (7), fourteen (14) or thirty (30) days following the date of any invoice given to the Client by Marketing Domain Pty Ltd.
3.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two percent (2%) of the Price), or by any other method as agreed to between the Client and Marketing Domain Pty Ltd
3.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Marketing Domain Pty Ltd an amount equal to any GST Marketing Domain Pty Ltd must pay for any supply by Marketing Domain Pty Ltd under this or any other agreement for the sale of the Services. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
4.1 Delivery (“Delivery”) of the Services is taken to occur at the time that the Client or Clients receive the work or it goes Live.
4.2 Any time of date given by Marketing Domain Pty Ltd to the Client is an estimate only. The Client must still accept every delivery of the Services even if late and Marketing Domain Pty Ltd will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
5.1 Risk of damage to or loss of the Services passes to the Client on Delivery and the Client must insure the Services on or before Delivery.
6.1 Each party agrees to treat all information and ideas communicated to it by the other confidentially and agree not to divulge it to any third party, without the other party’s written consent.
7.1 Marketing Domain Pty Ltd and the Client agree that ownership of the Services shall not pass until:
(a) the Client has paid Marketing Domain Pty Ltd all amounts owing to Marketing Domain Pty Ltd; and
(b) the Client has met all of its other obligations to Marketing Domain Pty Ltd.
7.2 Receipt by Marketing Domain Pty Ltd of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
8.1 The client indemnifies Marketing Domain Pty Ltd from and against all Marketing Domain Pty Ltd’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Marketing Domain Pty Ltd’s rights under this clause
(a) The client must inspect the Services on delivery and must within seven (7) days advise Marketing Domain Pty Ltd in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Services as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Marketing Domain Pty Ltd to inspect the Services.
(b) If the Client is not a consumer within the meaning of the CCA, Marketing Domain Pty Ltd’s liability for any defect or damage in the Services is:
(i) limited to the value of any express warranty or warranty card provided to the Client by Marketing Domain Pty Ltd at Marketing Domain Pty Ltd’s sole discretion;
(ii) limited to any warranty to which Marketing Domain Pty Ltd is entitled, if Marketing Domain Pty Ltd did not manufacture the Services;
(iii) otherwise negated absolutely.
9.1 Where Marketing Domain Pty Ltd has designed, drawn or developed Services for the Client, then the copyright in any designs and drawings and documents shall remain the property of Marketing Domain Pty Ltd.
9.2 The Client warrants that all designs, specifications or instructions given to Marketing Domain Pty Ltd will not cause Marketing Domain Pty Ltd to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Marketing Domain Pty Ltd against any action taken by a third party against Marketing Domain Pty Ltd in respect of any such infringement.
9.3 The Client agrees that Marketing Domain Pty Ltd may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Services which Marketing Domain Pty Ltd has created for the Client. Marketing Domain Pty Ltd shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Services;
(b) the Client using the Services for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Services after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by Marketing Domain Pty Ltd.
10.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Marketing Domain Pty Ltd’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
10.2 If the Client owes Marketing Domain Pty Ltd any money the Client shall indemnify Marketing Domain Pty Ltd from and against all costs and disbursements incurred by Marketing Domain Pty Ltd in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Marketing Domain Pty Ltd’s collection agency costs, and bank dishonour fees).
10.3 Without prejudice to any other remedies Marketing Domain Pty Ltd may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Marketing Domain Pty Ltd may suspend or terminate the supply of Services to the Client. Marketing Domain Pty Ltd will not be liable to the Client for any loss or damage the Client suffers because Marketing Domain Pty Ltd has exercised its rights under this clause.
10.4 Without prejudice to Marketing Domain Pty Ltd’s other remedies at law Marketing Domain Pty Ltd shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Marketing Domain Pty Ltd shall, whether or not due for payment, become immediately payable if:
(a) any money payable to Marketing Domain Pty Ltd becomes overdue, or in Marketing Domain Pty Ltd’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
11.1 Marketing Domain Pty Ltd may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are delivered by giving a written notice to the Client. On giving such notice Marketing Domain Pty Ltd shall repay to the Client any money paid by the Client for the Services. Marketing Domain Pty Ltd shall not be liable for any loss or damage whatsoever arising from such cancellation.
11.2 In the event that the Client cancels delivery of Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by Marketing Domain Pty Ltd as a direct result of the cancellation (including, but not limited to, any loss of profits).
11.3 Cancellation of orders for Services made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
12.1 Unless explicitly stated otherwise, Marketing Domain Pty Ltd offers no warranty, express or implied, on the Services provided.
12.2 Marketing Domain Pty Ltd offers no guarantee that the service will be fit for any other purpose than the original purpose the Services were obtained for.
12.3 Marketing Domain Pty Ltd makes no warranty or guarantee regarding implied or expected results of the Service.
12.4 Marketing Domain Pty Ltd shall not be held liable for and makes no warranty or guarantee for search engine rankings, loss of business, expected timeframe for improved ranking results or expected timeframe for increased sales volume.
13.1 The Client agrees to Marketing Domain Pty Ltd to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Marketing Domain Pty Ltd.
13.2 The Client agrees that Marketing Domain Pty Ltd may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
13.3 The Client consents to Marketing Domain Pty Ltd being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
13.4 The Client agrees that personal credit information provided may be used and retained by Marketing Domain Pty Ltd for the following purposes (and for other purposes as shall be agreed between the Client and Marketing Domain Pty Ltd or required by law from time to time):
(a) the provision of Services; and/or
(b) the marketing of Services by Marketing Domain Pty Ltd, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services.
13.5 Marketing Domain Pty Ltd may give information about the Client to a credit reporting agency for the following purposes:
(a)to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
13.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that Marketing Domain Pty Ltd is a current credit provider to the Client;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of Marketing Domain Pty Ltd, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by Marketing Domain Pty Ltd has been paid or otherwise discharged.
14.1 The failure by Marketing Domain Pty Ltd to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Marketing Domain Pty Ltd’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
14.2 These terms and conditions and any contract to which they apply shall be governed by the laws of the state in which Marketing Domain Pty Ltd has its principal place of business, and are subject to the jurisdiction of the courts in that state.
14.3 Subject to clause 9.2 Marketing Domain Pty Ltd shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Marketing Domain Pty Ltd of these terms and conditions (alternatively Marketing Domain Pty Ltd’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Services).
14.4 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Marketing Domain Pty Ltd nor to withhold payment of any invoice because part of that invoice is in dispute.
14.5 Marketing Domain Pty Ltd may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
14.6 The Client agrees that Marketing Domain Pty Ltd may amend these terms and conditions at any time. If Marketing Domain Pty Ltd makes a change to these terms and conditions, then that change will take effect from the date on which Marketing Domain Pty Ltd notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for Marketing Domain Pty Ltd to provide Services to the Client.
14.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
14.8 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.