Terms and Conditions

Welcome to our site https://www.digitalpresence.com.au (‘Site’) and thank you for using Digital Presence Products and Services!   These Digital Presence Terms of Service (“Terms”) describe your rights and responsibilities as a customer of our Products and Services. “You” shall mean the entity you represent in accepting these Terms or, if that is not applicable, to you individually.

Our Products and Services may be subject to additional terms specific to that Product and/or Services.  These additional terms shall be Product/Service-Specific Terms (‘Specific Terms’) which shall be contained in a separate order form upon purchase of such Products and/or Services. By accessing or using a Product and/or Service covered by the Specific Terms, you also agree to be bound by the Specific Terms.  In the event of a conflict between these Terms and the Specific Terms, the Specific Terms shall prevail.  Nothing in these Terms is intended to limit any rights you might have as a customer under applicable Australian law or other statutory rights that may not be excluded.

We reserve the right to change these Terms from time to time without prior notice.

1.         YOUR AGREEMENT WITH US FOR THE PROVISION OF PRODUCTS AND SERVICES

1.1          Basis for the agreement

1.1.1       Any written quotation provided by Digital Presence to You concerning the proposed delivery of Products and/or the provision of Services shall be valid for 7 (seven) days and is an invitation only to You to place an order based upon such quotation.  Specific Terms will be issued based on the Products and/or Services purchased.

1.2        Charges and Payments

1.2.1       All charges stated in or in relation to the Specific Terms shall be exclusive of GST and/or any other applicable duties in respect of the Products and/or Services that may be payable in the jurisdiction where the payment is either made or received, unless otherwise stated.  To the extent that any such GST and/or duties are payable, You must pay to us the amount of such GST and/or duties in addition to any fees owed under these Terms and/or the Specific Terms.

1.2.2       Charges must be paid by debit card, direct debit, bank transfer or by cheque, as stated.

1.2.3       You agree to pay all amounts due in accordance with the Specific Terms in a timely manner, by the due dates and in the currency, as specified. You further agree that Digital Presence may bill Your credit card or other payment method for renewals, agreed-to expenses, and unpaid fees, as applicable.

1.2.4       If You default in payment by the due date, as per the Specific Terms, then all amounts owing to Digital Presence shall immediately become due and payable by You, without prejudice to any other remedy available to Digital Presence.

1.2.5       You will make all due payments, as specified in the Specific Terms.  Except as otherwise specified herein or in the Specific Terms.:

• Fees are based in the Products and/or Services purchased and not actual usage; and
• Fees paid are NON-REFUNDABLE.

1.3          Schedule for Completion

1.3.1       Any period or date for the delivery of Products or the provision of Services as stated by Digital Presence is intended as an estimate only and is not a contractual commitment. Digital Presence will use all its commercially reasonable endeavours to meet any estimated dates for the delivery of Products or completion of Services. Digital Presence may extend those times to the extent deemed reasonable to do so having regard to:

(a)           the protection of personal safety or property;

(b)           Your breach of contract, or negligence or other default, including any failure to provide materials, due payments, information or resources required for Digital Presence to provide the Products and/or Services; or

(c)           the occurrence of any circumstances beyond the reasonable control of Digital Presence.

1.4          Mutual Responsibilities

1.4.1      Digital Presence Warranties

Digital Presence shall, subject to clause 1.5 of these Terms and the Specific Terms:

• deliver such Products and provide such Services with such effort as would be made by a reasonable entity of the same kind in the same circumstances;
• provide the Services with reasonable skill and care and to the best of their ability, employing their particular knowledge, experience and technical know-how;
• comply with all reasonable requests from time to time given to them by You to manage the relationship; and
• comply with and behave in accordance with business ethics.

1.4.2      Your Obligations

• Abide by these Terms and the Specific Terms;
• Obtain, procure and give any consents, permissions, access, facilities, information, cooperation, permits, authorities, notices and licences (whether or not required by law) which are reasonably needed to enable Digital Presence to deliver the Products and/or provide the Services;
• Provide Digital Presence with all the required information, materials and/or resources, or otherwise, as may be reasonably required to deliver the Products and/or provide the Services;
• Warrant that any intellectual property provided by You to Digital Presence shall not breach any third party’s intellectual property rights (including moral rights);
• Warrant that You are the owner or authorised licensee of any intellectual property provided by You to Digital Presence and you are entitled to provide Digital Presence with such intellectual property for its designated use; and
• Warrant that any information or material provided to Digital Presence to enable us to deliver the Products and/or provide the Services will not breach of infringe any laws or persons’ rights.

1.5          Disclaimer and Limitation of Liability

1.5.1       Subject to the Specific Terms, any term, condition or warranty in respect of the quality, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Products or Services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.

1.5.2       Replacement or repair of the Products or resupply of the Services is the absolute limit of Digital Presence’s liability howsoever arising under or in connection with the description, quality, condition, performance, assembly, manufacture, design, merchantability or fitness for purpose of the Products and/or Services or alternatively the sale, use of, storage or any other dealings with the Products or Services by You or any third party.

1.5.3 Digital Presence is not liable for any program or data loss or damage arising directly or indirectly from or in connection with the provision of the Products and/or Services.

1.5.4 Digital Presence is not liable for any indirect or consequential losses or expenses suffered by You or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party.

1.5.5 Digital Presence will not be liable for any loss or damage suffered by You or any person claiming through You where Digital Presence has failed to meet any delivery date or cancels or suspends the supply of Products and/or Services.

1.5.6       Nothing in the Terms, including the Specific Terms, is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of Products or supply of Services which cannot be legally excluded, restricted or modified.

1.5.7 Digital Presence does NOT warrant that any particular results will be achieved through the Product delivered and or Services provided. Where Digital Presence indicates specific targets that it will attempt to meet through the provision of the Services, such targets are not warranted and a failure to meet such targets will not be a breach of these Terms of the Specific Terms.

1.5.8       Unless expressly provided for in these Terms and/or the Specific Terms, there shall be no third-party beneficiaries under these Terms and/or the Specific Terms.

1.6          Confidential Information

1.6.1       The Parties agree not to disclose Confidential Information. Neither Party may use or take advantage of any Confidential Information without the discloser’s consent, even beyond the duration of these Terms and/or the Specific Terms.

1.6.2       This obligation does not apply to:

• information known to the receiver before disclosure by the other Party, or
• information which becomes public knowledge without fault on the part of the receiver, or
• disclosures made to the extent required by some applicable legal or regulatory requirement.

1.7          Intellectual Property Rights

1.7.1  Both You and Digital Presence warrant that in performing the carrying out their obligations and responsibilities in accordance with these Terms and the Specific Terms, both parties will not infringe the intellectual property rights of any third party and that the Services will not require Digital Presence to make any additional payment in respect of any third party intellectual property rights.

1.7.2       All content created by Digital Presence shall remain the intellectual property of Digital Presence until Your account is paid in full for such Products and/or Services. Digital Presence shall take no responsibility for content that is changed after the final payment is received from You

1.8          Termination

1.8.1       Either Party may terminate according to the provisions, as contained in the applicable Specific Terms.

1.8.2       Either party may terminate these Terms and/or applicable Specific Terms immediately by giving written notice to the other party if the other party:

(a)           commits any material breach of any term of these Terms and/or applicable Specific Terms, and:

(i)            the breach is not remediable; or

(ii)           the breach is remediable, but the other party fails to remedy the breach within 14 days of receipt of a written notice requiring it to do so; or

(b)           persistently breaches the terms of these Terms and/or applicable Specific Terms.

1.8.3       Either party may terminate these Terms and/or applicable Specific Terms immediately by giving written notice to the other party if:

(a)           the other party:

(i)            is dissolved; or

(ii)           ceases to conduct all (or substantially all) of its business; or

(iii)          is or becomes unable to pay its debts as they fall due; or

(iv)          is or becomes insolvent or is declared insolvent; or

(v)           convenes a meeting or makes or proposes to make any arrangement or composition with its creditors.

(b)           an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or

(c)           an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party).

1.8.4       Effects of termination

• Termination will not affect either party’s accrued rights (including accrued rights to be paid) as at the date of termination.
• As shall be more fully reflected in the Specific Terms.

1.9          Force Majeure

1.9.1       If either Party is prevented from or delayed in performing its obligations under these Terms and/or the Specific Terms as a direct result of an event of Force Majeure or any such circumstances beyond the control of the Party/ies, which shall include but not be limited to war, acts of terrorism, strikes, riots, blockades, failure of diminishment of power or telecommunications, etc., then neither party shall be liable to the other for any delay or failure to perform any of their obligations such prevention shall not be considered a breach of these Terms and/or the Specific Terms but shall relieve the Parties of their respective obligations to perform (except the obligation to make payment for the provision of Products and/or Services).

1.10        Cancellations and Deposits

1.10.1     If, through circumstances beyond the control of Digital Presence, it is unable to effect delivery or provision of Products and/or Services, then Digital Presence may cancel Your order (even if it has already been accepted) by notice in writing to You.

1.10.2     Any deposits paid are considered non-refundable. Upon special request, Digital Presence may hold accounts in credit to the value of deposits paid for future work.

1.11        Requests for Additional Work

1.11.1     Any changes to scope of works following signing of a proposal will incur additional charges. Such charges will be approved by You before commencing the work.

1.11.2     Changes to scope will affect timeline and, in these cases, Digital Presence cannot be liable for delivery delays.

1.12        Data Protection and Privacy

1.12.1     You warrant that You have the legal right to disclose any and all Personal Data that You do disclose to Digital Presence under these Terms and/or the Specific Terms, and that the processing of that Personal Data by Digital Presence for the purposes of delivering the Products and/or providing the Services will not breach any applicable laws.

1.12.2 Digital Presence agrees to:

• only act on Your instructions in relation to the processing of any Personal Data by Digital Presence on Your behalf;
• have in place appropriate security measures (both technical and organisational) against unlawful or unauthorised processing of Personal Data and against loss or corruption of Personal Data processed by Digital Presence on Your behalf; and
• hold Your URLs, usernames and passwords, as applicable to the Services being provided, in confidence. Digital Presence will not share this information under any circumstances nor will Digital Presence sell this information to a third party.

1.12.3    Your Data may be transferred to – and maintained on – servers that are located outside of Your country where the data protection laws may differ from those in Your country of residence.

If you choose to provide information to Digital Presence, please note that data may be transferred to a cloud-based server and processed there.

Your submission of any such data represents Your agreement to such transfer of data.

Digital Presence will take all reasonable and required steps to ensure that Your data is treated securely and in accordance with our Privacy Policy.

1.12.4    Notwithstanding clause 1.12.2, in the event that Digital Presence is required to disclose Your data under compulsion of law, Digital Presence shall endeavour to notify You of such need for disclosure immediately upon being notified of any such need for disclosure.

1.13        Assignment

1.13.1     You may not deal with these Terms and/or the Specific Terms without the prior written approval of Digital Presence.

1.13.2 Digital Presence may assign or otherwise transfer all or any part of these Terms and/or the Specific Terms by any means.  In such event, Digital Presence shall give you 30 days’ notice prior to making an assignment or transfer.

1.14        Changes and Variations

1.14.1 Digital Presence reserves the right to make changes to these Terms from time to time without prior notice, however, any changes, amendments and/or modifications to the Specific Terms shall not be effective unless set out in writing, expressly identified as an amendment to such Specific Terms and signed by the authorised signatories of Digital Presence and You.

1.15        Governing Law

1.15.1     These Terms shall be governed and construed in accordance with the laws of New South Wales;  and the courts of New South Wales will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with these Terms save for where the relevant jurisdiction is Australian Federal Law.

1.16        Independent Contractors

1.16.1     You acknowledge that the parties are independent contractors and that these Terms, including the Specific Terms, shall not be construed as creating any such legal association, including a partnership, agency, employment relationship, that would give either party the express or implied right, power or authority to create any duty or obligation of the other party, other than as expressly authorised, in writing.

1.17        Disputes

1.17.1     Before resorting to litigation to resolve any dispute between Digital Presence and You, we both agree to allow a period of 30 days to elapse and, within that 30 day period, to hold good faith negotiations with a view to endeavouring to resolve such dispute.

1.18        Restrictions

1.18.1     Except as otherwise provided for in these Terms, or the Specific Terms, as appropriate, You will not:

• modify, adapt, reproduce, or create derivative works of the Products and/or Services;
• sell, lease, distribute, rent, , sublicense, transfer or provide access to any of the Products to a third party;
• use the Products and/or Services for any competitive analysis or to build any competitive products;
• use the Products and/or Services for any other purpose than as intended, including for the benefit of any third party;
• incorporate any of the Products and/or Services into a product or service You provide to a third party, without the prior written consent of Digital Presence;
• interfere with or otherwise circumvent any incorporated mechanisms in the Products and/or Services;
• reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from the Site, except to the extent expressly permitted by applicable law;
• obscure and/or remove any proprietary/trademark/copyright and/or other notices contained in any of the Products and/or Services;
• publicly, including through social media platforms, disseminate information regarding the performance of the Products and/or Services; or
• encourage and/or assist any third party to do any of the aforementioned.

1.19        Waiver

1.19.1     No breach of any provision of the Terms and/or Specific Terms, will be waived except with the express written consent of the party not in breach.

1.20        Severability

1.20.1     If any of the provisions of these Terms, including the Specific Terms, are determined by any competent authority to be invalid, unlawful or unenforceable, such provision will to that extent be severed from the remaining Terms, including the Specific Terms, which will continue to be valid and enforceable to the fullest extent permitted by law.

1.21        Publicity Rights

1.21.1     You grant to Digital Presence the right to identify You as a client of Digital Presence in any promotional materials, including our Site. Digital Presence shall immediately refrain from doing so upon Your written request.

1.22        Notices

1.22.1     Any notices given by one party to the other must be in writing and must be delivered personally, sent by pre-paid first-class post, or sent by fax or email, for the attention of the relevant and identified representative of such party.

1.22.2     A notice will be deemed to have been received at the relevant time set out herein (or where such time is not within business hours, when business hours next begin after the relevant time set out herein):

• where the notice is delivered personally, at the time of delivery;
• where the notice is sent by first class post, 48 hours after posting; and
• where the notice is sent by fax or email, at the tie of the transmission (providing the sending party retains written evidence of the transmission).

1.23        Entire Agreement

1.23.1     The Terms, including the Specific Terms, form the entire agreement between Digital Presence and You which supersede and is in substitution of any preceding agreement/s with You and any oral or written understandings with the exclusion of any terms implied by law which may not be excluded by contract.

1.23.2     Each of the Parties acknowledges that it has not been induced to contract by any representations or warranties except as expressly stated or referred to in these Terms and/or the Specific Terms, and, so far as permitted by law (and except in the case of fraud) each of the Parties hereby waives any remedy in respect of (and acknowledges that no other party nor any of their agents, officers or personnel have given) any warranties, representations, indemnities or other statements whatsoever (written or oral) not expressly incorporated into these Terms and/or the Specific Terms. Any representations made to You on behalf of Digital Presence in advance of agreeing to these Terms and/or the Specific Terms shall not form part of the agreement between the parties.

Should you have any questions regarding these Terms and/or our Products and Services, please don’t hesitate to contact us.