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1. Introduction
The following Terms and Conditions of Trade are
to be read in conjunction with any agreement, quotation, invoice or statement
issued by jStuchbery Productions. These Terms and Conditions apply to work
undertaken by jStuchbery Productions as well as any advice, products or
services provided or supplied by jStuchbery Productions.
By engaging jStuchbery Productions to complete a
project for you these Terms and Conditions become a legal agreement between you
and jStuchbery Productions. Please read it carefully. You can always access and
review these Terms and Conditions upon request through your Project
Manager.
If you have any enquiries regarding any of the
underlying terms, please do not hesitate to contact us directly at josh.stuchbery@lanterncorp.com.au
2. Terms and Definitions of Any Agreement
For the purposes of these Terms and
Conditions:
2.1. The following Definitions apply:
2.1.1. jStuchbery Productions means
jStuchbery Productions (ABN 303 2659 4578)
2.1.2. Customer means the
person, company, organisation, trust or other business entity which has engaged
jStuchbery Productions to provide advice, products or services.
2.1.3. Order Form means the jStuchbery
Productions contract or Project Charter Document signed by or on behalf of the
Customer, which specifies the Services and Plan the Customer requires from jStuchbery
Productions.
2.1.4. Plan means the
particular business solution selected by Customer from the range of solutions
offered by jStuchbery Productions, and includes any specified components of
that solution relating to the Plan.
2.1.5. Privacy Law means and
includes the Privacy Act (Cth) 1988, and any other law, statute or code in
Australia that regulates the dissemination and use of information about or concerning
an individual person or corporation.
2.1.6. Project means any
service jStuchbery Productions is asked to provide that is specific to that
client and made up of a number of smaller tasks. Each project is given it’s own
unique project code and assigned a jStuchbery Productions appointed project
manager.
2.1.7. Provisioning in relation
to services provided under the Plan selected by Customer means jStuchbery
Productions doing everything necessary to set up and manage those services, and
includes configuring and programming its equipment, networks and systems to
enable all options selected by Customer.
2.1.8. Regulatory Authority means
and includes the Australian Communications and Media Authority, the Australian
Competition and Consumer Commission, the Australian Communications Industry
Forum Limited, the Telecommunications Industry Ombudsman, the Internet Industry
Association, the Asia Pacific Network Information Centre, authorised domain
name registrars, and any other competent government or statutory body or
authority having jurisdiction over jStuchbery Productions.
2.1.9. Service or Services means
the service or Services set out in the Plan or Project selected by Customer and
any related Hardware, Software and additional services which jStuchbery
Productions supplies in connection with the Service or Services.
2.1.10. Supplier means any
supplier of goods or services (including without limitation interconnection
services) used directly or indirectly by jStuchbery Productions to supply
Services under this Agreement.
2.1.11. Term means the period
of the Plan or Project selected by Customer and Subsequent Term means any
further period for which this Agreement is automatically extended pursuant to
clause 14.1.
2.1.12. User means any person
or entity authorised by Customer to access and/or use the Services, and
includes any person accessing any Customer website, photo, video, event,
design, publication or any other content or material generated by jStuchbery
Productions.
2.2. These terms are incorporated into any
invoice, quote, statement, variation, contract, email or similar agreement
supplied by jStuchbery Productions to the Customer.
2.3. This Agreement represents the entire
agreement of the Parties with respect to the subject matter hereof and
supersedes all prior and/or contemporaneous agreements and understandings
between the Parties with respect to the subject.
2.4. These terms and conditions supersede any
conditions contained in a Customer-generated order unless jStuchbery Productions
has expressly agreed in writing by initialing each such requested Customer
Term(s).
2.5. No variation waiver, or cancellation of the
Agreement will be effective unless signed in writing by each party and any
failure by jStuchbery Productions to enforce any clause of this Agreement will
not be construed as a waiver of jStuchbery Productions’s rights under this
agreement.
3. Project Timelines
3.1. Any time frames specified by jStuchbery
Productions are an estimation only and projects can be delayed by a number of
factors including (but not limited to) non compliance by the Customer with the
instructions to or requests from jStuchbery Productions, incorrect content
being supplied to jStuchbery Productions and jStuchbery Productions being
unable to contact the Customer for prolonged periods of time. The Customer must
ensure that jStuchbery Productions has accurate contact details for them.
3.2. The Customer must make every effort to
follow the instructions provided by jStuchbery Productions and provide the
required information to jStuchbery Productions in order to facilitate delivery
times and correct specifications.
3.3. Delays in providing the required
information to jStuchbery Productions may result in delays in product delivery
and also may result in the Customer incurring additional charges for
administration time.
3.4. jStuchbery Productions will make all
reasonable efforts to provide the product or service by the estimated date but
does not accept liability for any costs incurred, loss or damage (including
consequential loss or damage) compensation or loss of earnings due to any
failure to meet agreed deadlines.
3.5. In order to enable jStuchbery Productions
to complete the project within a reasonable time frame, jStuchbery Productions
may move the Customer project to the next stage of development in circumstances
Where:
3.5.1. jStuchbery Productions does not receive
any feedback or changes from the Customer within requested; or 14 days of such
items being
3.5.2. jStuchbery Productions does not receive
content from the Customer within 14 days of it being requested.
3.6. In the event that jStuchbery Productions
does not receive any final changes to be made to the project from you within 14
days of having requested such details from the Customer, then jStuchbery
Productions reserves the right to hand over the project to the Customer, at
which time final payment will become immediately due and payable.
3.7. Unless otherwise agreed in writing, charges
for work undertaken are based on work being carried out during “Normal Working
Hours” being (0830 to 1730) Monday to Friday except for public holidays and
subject to alteration by jStuchbery Productions.
3.8. The Customer agrees to pay for any
additional costs arising from any alteration to the above specifications
required by the Customer including any interruption or delays by the Customer,
its employees, agents or other representatives during the course of work
performed.
3.9. If it becomes necessary to pay any
additional allowances, other than a State or Federal Award or amounts in excess
of any current workplace agreement applicable to the type of work being
performed, these costs will be added to jStuchbery Productions’s fee (which
means all amounts payable under any Agreement by the Customer to jStuchbery
Productions for the Advice, Products and Services).
3.10. If jStuchbery Productions is delayed in
reaching completion of the services by the date agreed between the parties by
an event outside of its control then jStuchbery Productions shall be entitled
to a reasonable extension of time to complete the services.
3.11. The Customer agrees to pay for any
variations to the services required by the Customer that are not included on
the original agreement.
4. Form of Agreement
4.1. All Contracts or Agreements must be
completed only on documents provided by jStuchbery Productions. Any changed or
additional items must be provided in writing, signed by the Customer and a jStuchbery
Productions representative, and must be subject to relevant clauses contained
herein. All Contracts and Agreements between jStuchbery Productions and a
Customer that is a business or a proposed business are legally binding from the
time of signing and do not provide for a cooling off period.
5. Content, Design and Package Restrictions
5.1. Each project has certain design and
functionality restrictions. It is the Customers responsibility to understand
these restrictions prior to commencing any project. The Customer should discuss
any queries they may have with their project manager or consultant and also
refer to the examples jStuchbery Productions may have provided to them which
fall within their budget range, and refer to any documentation that jStuchbery
Productions has provided to the Customer.
5.2. During various stages of the design process
jStuchbery Productions will request from the Customer certain information and
content. The Customer should ensure that the information and content that they
provide to jStuchbery Productions is correct and is their final version. jStuchbery
Productions cannot accept any revised content once the Customer has submitted
their content. Any revisions to content may result in you incurring additional
costs.
5.3. jStuchbery Productions uses the content in
the form that is provided to jStuchbery Productions by the Customer and does
not conduct spelling or grammar checks. jStuchbery Productions will not write
the Customer content for them unless the Customer has requested that this. The
Customer is solely responsible for any content they submit for any project and
accordingly jStuchbery Productions will treat the submitted content as the
final version of that content.
5.4. jStuchbery Productions includes a set
number of rounds of changes during its projects production process. The
standard number of rounds of changes at key milestones is 2. Any extra changes
required by the Customer may incur additional costs.
5.5. Changes must be submitted in one email and
one email of changes (within the scope of the project) is considered one round
of changes. In the event that jStuchbery Productions makes any mistakes or
omissions in implementing the changes that you have requested, jStuchbery
Productions will rectify this at its own expense.
5.6. The Customer ensure that they limit their
changes to comply with the agreed specifications. Failure to do this may result
in the Customer incurring additional costs.
5.7. Unless otherwise agreed upon, jStuchbery
Productions may include a link to its own website at the footer of a Customer site,
in the credits or titles of a video, as a watermark over photos taken, or
includes it’s logo or a website link in any additional design paraphernalia or
components and, where such link is so included, the Customer must not take any
steps to remove this link. jStuchbery Productions reserves the right to change
any such links from time to time at the cost and expense to jStuchbery
Productions.
6. Customer Responsibilities
6.1. The customer must advise jStuchbery
Productions of the existence of any authority, agreement or arrangement that
the Customer has with any other party that may limit or impact on any advice,
design work or supply of other products or services. This shall include but is
not limited to any authority to use brand names or other intellectual property
of any party.
6.2. The customer must ensure that any premises
or locations where jStuchbery Productions representatives must attend on behalf
of the customer will at all times be a safe working environment and (without
limitation) will not contain asbestos or similar hazards.
6.3. The Customer is expected to fully test or
review any plans, application, site, photo, video, publication, schematics or
programming relating to the project or production developed by jStuchbery
Productions for them before making such components generally available. Where
"bugs", errors or other issues are found after any component is live,
jStuchbery Productions shall endeavor (but is not obliged to) to correct these
issues to meet the standards of function outlined in these terms and
conditions.
7. Fees and Payment Terms
7.1. The total cost of the Customer Plan or
Project and any fees are set out in the quote provided to them by jStuchbery
Productions, the scope of work and any ad hoc quotes that may be provided to
the Customer by jStuchbery Productions from time to time. Details regarding
costs can also be obtained from the Customers Project Manager by request. The
Customer must ensure that they are aware of any costs and ongoing fees before
they elect to proceed.
7.2. Any monthly fees attached to the Customer
Plan must be paid in full in order to ensure service continuity. The Customer
services may be suspended or discontinued if your fees fall overdue outside of jStuchbery
Productions payment terms.
7.3. The Customer initial consultations are
included in your quoted project cost and form part of their deposit. If the
Customer does not decide to proceed with jStuchbery Productions, they will not
be liable for this cost unless otherwise agreed.
7.4. Unless otherwise agreed in writing jStuchbery
Productions standard payment terms for any project are as follows:
7.4.1. 50% of the total project cost will be
required as an upfront deposit in order to get your project started. This also
includes the cost of any initial consultations.
7.4.2. The balance of the total project costs
shall be payable once your project is finished and prior to jStuchbery
Productions handing over any finished works.
7.5. jStuchbery Productions requires final
payment and credit card authority forms to be provided in respect of any
ongoing fees and such forms are to be returned to jStuchbery Productions before
jStuchbery Productions will make the Customer project live. The final balance
payment and credit card authority form must be returned to jStuchbery
Productions upon completion of the Customer project (before going live) unless
otherwise agreed.
7.6. Any extras requested during the process
shall be added to the total project costs and will be payable at the stages
outlined above. Please note that extras outside the Plan specifications will
incur additional charges which jStuchbery Productions will inform the Customer
of before proceeding.
7.7. If the Customer requires jStuchbery
Productions to make changes to your project after your project is handed over
to them, the Customer will be required to pay for this work at the hourly rate
or in accordance with jStuchbery Productions standard prices as quoted. jStuchbery
Productions reserves the right for all such work to be paid upfront and will be
quoted for on request.
7.8. If jStuchbery Productions has difficulties
contacting the Customer for prolonged periods of time or does not receive
required feedback from them, the Customer may incur additional charges and
delays in delivery of a project if un-contactable for more than 14 days, jStuchbery
Productions may suspend the project indefinitely or end the Customer project
without further notice to them. If your project is suspended or ended, then the
final payment will be due and payable immediately to jStuchbery Productions. To
resume the project the Customer will need to pay a $199 re-instatement fee and
the decision regarding whether the project will be resumed shall rest solely
with jStuchbery Productions.
7.9. jStuchbery Productions can put the Customer
project on hold if your circumstances change, in which case the Customer will
be required to make the next payment due and then the project will be placed on
hold until such time as you are ready for it to proceed. The Customer will not
be charged any additional costs to resume your project in these
circumstances.
7.10. Please note that paying the deposit on any
project shall signify the Customer agreement and commitment to complete the
project with jStuchbery Productions and the Customer agreement to make full
payment to jStuchbery Productions. Payment in full of the total Plan costs will
be required in the event that the Customer does not wish to proceed with the
project after such time as they have paid the deposit and are outside the
refund period.
7.11. The Customer shall remain liable for all
fees incurred by jStuchbery Productions during any period when their project
has been suspended or discontinued due to their failure to comply with these
terms and conditions. In addition, the Customer must pay all costs in full
without any set off, counter claim or deduction unless first agreed to in
writing by jStuchbery Productions.
7.12. Please note that interest at the rate of
14% per annum shall accrue on any amounts outstanding in excess of jStuchbery
Productions payment terms from time to time.
7.13. If accounts are not settled and jStuchbery
Productions has not been contacted regarding the delay, access to the Customer
services may be denied and, depending on the nature of the project, certain
works may be removed or taken offline.
7.14. Payment of Domain Names Fees: jStuchbery
Productions will notify Customer of fees for registration and/or renewal of
domain names. Under ICANN policies Registrars are not permitted to solicit nor
pay fees on behalf of Customers for renewal of Domain names. It is Customer’s
sole responsibility, on receiving a notice for renewal of a Domain name, to
promptly pay all fees for renewal or risk loss of the Domain name. Neither jStuchbery
Productions nor Domain Name Registrar accepts liability for any failure, for
any reason whatsoever, to renew a Domain name on a timely basis.
7.15. Delays in Payment of Domain Name Fees: jStuchbery
Productions cannot take action to register or renew Domain names until in each
instance it has received payment for the particular service. Customers must
allow 3 business days to elapse after making payment and issuing instructions
to jStuchbery Productions to register or renew a Domain name before jStuchbery
Productions is able to process the application or renewal. Neither jStuchbery
Productions nor Domain Name Registrar accepts liability for failure to register
or renew a Domain name through delays of Customer in making payments and/or
arising out of administrative delays, acts or omissions of Customers or third
parties or out of automated systems failures.
7.16. Refund of Initial Fees: Customer is solely
responsible for selecting the Services appropriate to its requirements. Once a
Plan or Project has been ordered, jStuchbery Productions will not issue a
refund of the initial payment of fees unless:
7.16.1. Customer makes a request for a refund
within 24 hours of the initial payment of fees; and
7.16.2. jStuchbery Productions has not
irrevocably committed itself to expenses associated with the supply of services
selected by Customer.
7.17. An administration fee of $199 will apply
to all refunds.
7.18. Unless otherwise expressly stated, the
fees are exclusive of GST, other taxes, duties and charges imposed or levied in
Australia or overseas in connection with this Agreement, such amounts being
payable by the Customer;
7.19. If GST is payable in respect of any Fees,
then the amounts charged pursuant to this Agreement are to be increased so that
jStuchbery Productions retains an amount equal to the original fee after payment
of the GST.
7.20. Standard Payment Terms
7.20.1. In the case where a discount, the
discount only applies if all payments are received on time as agreed.
7.20.2. If the agreed terms are not meet, jStuchbery
Productions reserves the right to revoke the discount and request the total
value of the marketing contract. jStuchbery Productions may also cancel the
payment terms and demand full payout of the marketing contract.
7.20.3. There is a 14% flat interest charge on
the total amount to be paid over terms no matter what period of time is
involved.
7.20.4. Payment must be received within 14 days
of signing the any agreement to services, except where marked differently by a jStuchbery
Productions representative.
7.20.5. Acceptable forms of payment include
cash, cheque or direct debit.
7.20.6. Discounts are not available for
printing, manufacturing, media buying, distribution, Adwords, trademark
application, company registrations, smart number auction and purchase and any
other product or service that jStuchbery Productions outsources on the
customer’s behalf.
8. Invoices
8.1. Once jStuchbery Productions posts, faxes or
emails an invoice or statement to a Customer the Customer agrees that you have
received it.
8.2. If you do not provide written notice to us
of any objection or complaint within seven days of this receipt, then you agree
that:
8.2.1. The amount is owing, and
8.2.2. The amount on the statement is
accurate;
8.2.3. The onus will be on the Customer to prove
otherwise thereafter;
8.2.4. If you do wish to make any counterclaim,
or set-off against us, then you agree and undertake to pay the amount claimed
on all outstanding invoices owed to us in full, before:
8.2.4.1. You make any such claim; and
8.2.4.2. Praise any dispute to a demand served
pursuant to section 459E of the Corporations Act 2001.
8.3. jStuchbery Productions will issue and post
and/or email invoices in accordance with its billing cycle, as from time to
time notified to Customer:
8.3.1. For fixed or recurring charges, in
advance;
8.3.2. For variable charges in arrears;
8.3.3. Otherwise as notified by jStuchbery
Productions from time to time.
8.4. Payment Authorities: Customer hereby
authorizes jStuchbery Productions to debit all fees under any invoices rendered
by it under this Agreement, as the Customer chooses, to its nominated Bank
Account or to Customer’s nominated credit card and all subsequent renewals of
that credit card.
9. Quotation or Price Validity
9.1. Unless otherwise agreed in writing, any
quotation provided either verbally or in writing by jStuchbery Productions may
be accepted by the Customer up to 30 days from the quotation date, after which jStuchbery
Productions reserves the right to amend or withdraw such quotation without
notice.
9.1.1. All quotations are exclusive of GST. Such
GST will have the meaning of a tax, impost or duty on goods, services or other
things introduced by a Government Authority either before, on, or after the
quotation has been given.
9.1.2. Quotations may not include any incidental
charges that Customer may not have been made aware by jStuchbery Productions
and or by a jStuchbery Productions representative.
10. Warranties
10.1. Sole Warranties: jStuchbery Productions
warrants that
10.1.1. Any product or services will be supplied
with due care and skill and that any material supplied in connection with the
Service is reasonably fit for the purposes for which it is supplied and that
all information provided to jStuchbery Productions by the Customer or on the
Customer’s behalf is accurate and is not misleading, whether by omission of
information or otherwise;
10.1.2. The use of the Customer Data by jStuchbery
Productions in accordance with any Agreement will not infringe the Intellectual
Property Rights of any third party;
10.1.3. The Customer has not withheld from jStuchbery
Productions any information, document, or other fact or material that may be
relevant to the decision by jStuchbery Productions to enter into any
Agreement;
10.1.4. The Customer did not rely on any other
representation made at any time to the Customer by jStuchbery Productions or
any related body that is not included in writing in such Agreement.
10.2. Exclusion of All Other Warranties: With
the exception of the warranties set out in clause 22.1 and to the full extent
permitted by law, all other express or implied warranties, representations,
terms and conditions regarding Services, Hardware and/or Software and their use
or regarding the Agreement are hereby expressly excluded.
10.3. Limitation of Liability: jStuchbery
Productionss liability for breach of the warranties set out in clause 22.1 is
limited at its option to the resupply of Services, or payment of the cost of
having the Services supplied again. In no event shall jStuchbery Productions be
liable for any loss of data, loss of profits, cost of cover, or any other
special, incidental, consequential, indirect or punitive damages, however
caused and regardless of theory or liability, notwithstanding that jStuchbery
Productions has been made aware or advised of the possibility of such
damages.
10.4. Payment Warranties. The Customer warrants
that:
10.4.1. The Customer agrees to pay jStuchbery
Productions the fees specified in this Agreement within set terms of the date
of invoice without set-off, deduction or discount of any kind. Unless otherwise
agreed to by jStuchbery Productions in writing, all amounts payable hereunder
shall be due to jStuchbery Productions within seven days of the invoice
date.
10.4.2. jStuchbery Productions reserves the
right to issue progress invoices for materials and/or labour expended on work
in progress and to place into bond any products or materials which cannot be
accepted for delivery to Customer and invoice the full value thereof.
10.4.3. jStuchbery Productions shall have the
right to issue a notice of default, requesting the Customer to pay the amount
of any fee within the time specified in the notice. The Customer will be
required to pay jStuchbery Productions the fees due upon receipt of this notice
and pay all reasonable expenses, including legal costs incurred in the
enforcement of the notice of default.
10.4.4. Payment of fees is a fundamental term of
this Agreement and to the maximum extent permitted by law, jStuchbery Productions
will have no liability to the Customer for acts or omissions or work required
to be undertaken by jStuchbery Productions if the circumstance or event which
would otherwise give rise to liability occurs at a time when the Customer is in
breach of payment obligations to jStuchbery Productions.
10.4.5. The Customer agrees that it must pay all
outstanding invoices before commencing any legal process.
10.4.6. Adequate funds will be available to meet
any payment/s authorised in any agreement.
10.4.7. Customer will not withdraw such payment
authority without the express written agreement of jStuchbery Productions
management.
10.4.8. Should funds not be available at the
scheduled time of payment Customer agrees to pay any fees of charges incurred by
jStuchbery Productions in relation to such non-payment.
10.4.9. In the event of any dispute all agreed
fees, expenses and payments as detailed in the agreement will be paid in full
before any action is taken in any other forum and such agreed fees, expenses
and payments will not be withheld for any reason.
10.4.10. In the event of non-payment of agreed
fees and charges by the due date, by giving notice in writing of seven days jStuchbery
Productions at its sole discretion may apply a compounding interest rate of 2%
per month on all outstanding amounts.
10.4.11. Such interest will apply from the end
of such seven days’ notice in writing.
10.4.12. jStuchbery Productions will issue tax
invoices as works are completed of progress payments are scheduled to be
made.
10.4.13. If a Customer requires additional
copies of invoices or a reconciliation of payments made an administration fee
of $250.00 +GST will apply in each instance.
10.4.14. In the event that Customer fails to
meet the agreed payment terms Customer will be responsible to pay all of the
debt recovery costs of jStuchbery Productions as detailed below:
10.4.14.1. Serving a Statutory Declaration
$1,000.00 +GST
10.4.14.2. Sending a Letter of Demand $300.00
+GST
10.4.14.3. Commencing court proceedings
$1,000.00 +GST
10.4.14.4. Entering a default judgement
$1,000.00 +GST
10.4.15. In the event of Customer unsuccessfully
disputing the debt then Customer will indemnify jStuchbery Productions against
all costs and fees which are to be set at the rates applied by the Supreme
Court of the relevant State.
10.4.16. The Customer agrees to deliver written
notice of any error in any invoice or statement of account to jStuchbery
Productions within three days after the day that the invoice or statement of
account is dated. The invoice or statement of account shall be deemed to be
correct and accepted as rendered, unless jStuchbery Productions has received
the Customer’s written notice to the contrary within the above time
period.
10.4.17. Adwords management fee is 20% of the
total monthly spend with Google
10.4.18. Once a job has written approval from
the client, future revisions and amendments will be undertaken on a fee for
service basis.
11. General Provisions
11.1. jStuchbery Productions advises and the
Customer accepts that, unless otherwise stated in writing: Unless purchased in
Customer name initially, all Domain names for mini sites are owned by jStuchbery
Productions and ownership of such domain names may be transferred to clients if
required on the payment of $60.00 +GST registration plus $150.00 +GST transfer
fee;
11.2. jStuchbery Productions cannot guarantee
specific enquiry or business outcomes from advertising or marketing activities;
The
11.3. Customer is aware that once websites and
mini sites are completed, search engines may take from two week to 15 weeks or
longer to commence ranking those sites;
11.4. Search engines advise that no company,
including jStuchbery Productions, can guarantee that a website or mini sites
will rank on the first page of the search engines results so jStuchbery
Productions does not make that guarantee.
11.5. Public Relations is not a controlled
medium. jStuchbery Productions does not guarantee the performance of any PR
actions including media coverage, accuracy of message communicated and context
of message published.
11.6. If a client registers their own domain
names, jStuchbery Productions accepts no responsibility for the correct setup
of the domain name, any resulting malfunctions of the site, or possible impacts
on the business if the domain names are not renewed on time each year. Such
client is responsible for any additional charges to arrange the correct
setup.
11.7. One day of photography includes six hours
of shooting and two hours of editing at a maximum of two locations per day.
Travel is included up to one hour from the capital city of the client’s
business location. Studio hire and sourcing talent is not included in
photography cost.
11.8. jStuchbery Productions guarantees to get
50% of phrases on the first page of Google within six months. If we fail to
achieve this, we continue to work free of charge for a further six months;
providing the client accepts the first list of recommended keywords.
11.9. jStuchbery Productions will not be held
liable for the introduction of new search results ranking algorithms or any
changes made to existing search results ranking algorithms as released by
Google or any other entity that affects the performance of any Search Engine
Socialisation, Search Engine Optimisation, Ongoing Content Management campaign
or any other online marketing products and services.
11.10. By accepting or signing any jStuchbery
Productions marketing contract or agreement, the customer understands that
keywords used in Search Engine Socialisation, Search Engine Optimisation and
other online marketing services are not exclusive and that jStuchbery
Productions reserves the right to simultaneously manage campaigns for different
customers using the same or similar keywords.
11.11. Unless otherwise discussed and agreed
upon with a jStuchbery Productions staff member, jStuchbery Productions will
dispose of the raw footage used in video productions after six months from
producing the production or choose to retain such footage and use it for it’s
own purposes which may include using it as stock footage for financial
gain.
11.12. jStuchbery Productions is not a Human
Resources consultant and will act under your instruction in compiling induction
packs; work place health and safety manuals and any other HR related product or
services. Any policies written for HR related service act as a basic template
and may need to be reviewed by a lawyer or HR specialist in the customer’s
industry / sector and that it is the customer’s responsibility to continuously
update HR documentation so it accurately reflect the workplace is compliant
with industry regulations. jStuchbery Productions will not be held liable for
any losses, damages, injury or death associated with the workplace health and
safety manual, staff induction pack or any other HR related service.
11.13. Customer shall have no right, title, or
interest of any kind whatsoever in the Software, Hardware, documentation, or
any copyrights, patents or trademarks, embodied or used in connection
therewith, except for the limited license to use the Hardware and Software
provided in this Agreement.
11.14. The Customer may not transfer its rights
or obligations under this agreement to, or share them with, anyone without
prior written consent of jStuchbery Productions. jStuchbery Productions may
transfer its rights or obligations under this agreement to, or share them with,
anyone on notice to the Customer.
12. Acceptable Use Policy and Use of Services
12.1. Customer agrees and acknowledges that it
has read jStuchbery Productionss Acceptable Use Policy and agrees and
undertakes that it will at all times observe and comply with that Acceptable
Use Policy, as may be amended from time to time and made freely available on
request.
12.2. Customer acknowledges and agrees that it
is solely responsible for all information, material, content or data
(“Content”) of any postings, data or transmissions utilizing the Services or
any other use of the Services by Customer or User.
12.3. Removal of Offending Content: Customer
acknowledges that jStuchbery Productions has the right to remove Content in
accordance with the terms of the Acceptable Use Policy, including without
limitation and without notice to Customer any Content deemed by jStuchbery Productions
in its sole opinion to breach or offend its Acceptable Use Policy, or to
suspend Services or disconnect or deny access to Services if in its sole
opinion it deems Content to breach or offend its Acceptable Use Policies.
12.4. Suspension: Customer acknowledges that jStuchbery
Productions is entitled to suspend or cancel Services, permanently or
temporarily, if Customer breaches the Acceptable Use Policy and that if at any
time jStuchbery Productions does suspend or cancel the Services, the Customer
remains liable for any charges incurred:
12.4.1. Through unusual usage; and
12.4.2. Where the suspension is temporary,
during such suspension.
12.5. Customer agrees to and shall hold harmless
and indemnify jStuchbery Productions against any loss, expenses, liability,
damages or claim made against it by any party whatsoever (including without
limitation Customer, a User or any party claiming through Customer) which jStuchbery
Productions may suffer, directly or indirectly, resulting from or arising out
of Customer’s or User’s breach of the Acceptable Use Policy or the misuse or
abuse of the Services in any way whatsoever by Customer or any User.
13. Release of Information to Authorised
Agencies
13.1. In order to comply with, and subject to,
any applicable laws, including without limitation the Telecommunications Act
1997 and the Telecommunications (Interception) Act 1979, jStuchbery Productions
may at any time:
13.1.1. When required by a warrant issued by a
Regulatory Agency or an authorised law enforcement agency or court, intercept
or monitor Services, or enable another person authorised by a warrant issued by
a Regulatory Agency or an authorised law enforcement agency or court, to
intercept or monitor Services, including data hosted on or being transmitted
through Services;
13.1.2. Monitor and/or examine use of Services,
including email, records and other data in the course of installation,
connection or routine maintenance of the Services, but only to the extent
permitted by legislation;
13.1.3. Suspend Services; and/or
13.1.4. Release information obtained by any of
these actions to any Regulatory Agency.
13.2. Indemnity. Customer agrees to and shall
hold harmless and indemnify jStuchbery Productions against any loss, expenses,
liability, damages or claim made against it by any party whatsoever (including
without limitation Customer, a User or any party claiming through Customer or a
User) which jStuchbery Productions may suffer, directly or indirectly,
resulting from or arising out of any actions taken by it pursuant to clause
25.1.
14. Severability
14.1. These terms and conditions shall, so far
as possible, be interpreted and construed so as not to be invalid, illegal or
unenforceable in any respect, but if a provision, on its true interpretation or
construction is held to be illegal, invalid or unenforceable:
14.1.1. That provision shall, so far as
possible, be read down to the extent that it may be necessary to ensure that it
is not illegal, invalid or unenforceable and as may be reasonable in all the
circumstances so as to give it a valid operation; or
14.1.2. If the provision or part of it cannot
effectively be read down, that provision or part of it shall be deemed to be
void and severable and the remaining provisions of this Agreement shall not in
any way be affected or impaired and shall continue notwithstanding that
illegality, invalidity or unenforceable nature.
15. Term and Termination
15.1. This Agreement shall be effective for the
term (“Term”) of the Plan or Project selected by Customer. Unless Customer
gives at least 30 days written notice of termination prior to the expiration of
the Term, this Agreement shall automatically be extended for a further period
identical to the period of the initial Term, which further period shall be
referred to as “the Term” or “Subsequent Term”, and where appropriate any
reference in this Agreement to Term shall be deemed to include a reference to a
Subsequent Term.
15.2. Mutual Termination: This Agreement shall
be terminated prior to the expiration of the Term in the following
circumstances:
15.2.1. Either party gives written notice of a
material breach of this Agreement, and the breach is not remedied within 30
days after receipt of the notice; or
15.2.2. If either party goes into administration
or liquidation either compulsorily or voluntarily (save for the purpose of
reconstruction or amalgamation) or if a receiver is appointed in respect of the
whole or any part of its assets or if either party makes an assignment for the
benefit of or composition with its creditors generally or threatens to do any
of these things, and in either event the other Party gives notice that it
elects to terminate the Agreement which notice shall be effective
immediately.
15.3. Other Termination: jStuchbery Productions
may terminate this Agreement by giving reasonable notice to the Customer prior
to the expiration of the Term set out if:
15.3.1. A Regulatory Authority directs it to do
so; or
15.3.2. A Supplier terminates an agreement to supply
services to jStuchbery Productions, and as a consequence jStuchbery Productions
is unable to supply Service(s) to Customer through an alternative Supplier on
reasonable commercial terms.
16. Defaults
16.1. In the event of the Customer’s refusal to
accept a product or other ways defaults, jStuchbery Productions at its
discretion and option shall be entitled to retain all monies paid by the
Customer on accounts as liquidated damages.
16.1.1. If the Customer fails to make any
payments when due, or if there is a breach of any covenant or agreement by the
Customer, or if jStuchbery Productions deems itself insecure, then the Customer
shall be deemed in default and jStuchbery Productions shall have, at its
option, the right to take immediate possession of the goods, and or declare all
unpaid amounts immediately due and payable and or suspend delivery of any
products or service to the Customer and to withdraw any such products or
services already provided under the Agreement.
16.1.2. jStuchbery Productions shall be entitled
to settle for any amount owed by the Customer or any of the Customer’s related
entities against any amount payable to jStuchbery Productions in connection
with any unpaid monies due to jStuchbery Productions.
16.1.3. A waiver by jStuchbery Productions of
any breach or default shall not constitute a waiver of any subsequent breach or
default.
17. Consequences of Termination
17.1. In the event of termination of the
Agreement prior to the expiration of the Term by reason of a default by
Customer or by reason of actions by or on behalf of Customer, all amounts which
would have become due and payable under the Agreement had it continued in
effect until the expiration of the Term shall immediately become due and
payable, and Customer shall immediately pay all amounts so becoming due and
payable. If Customer has made a payment for services in advance, jStuchbery
Productions will apply the balance of any such payment remaining (calculated on
a pro rata basis) against any amounts due and payable by the Customer, but in
no other case shall Customer be entitled to a refund of such payment.
17.2. In the event of termination of the
Agreement prior to the expiration of the Term, and on the expiration of the
Term, jStuchbery Productions will bill Customer for all services up to date of
termination, and Customer will immediately pay that invoice and any other
outstanding invoices.
17.3. On the expiration of the Term or on
termination of the Agreement, jStuchbery Productions will immediately cancel
Services, and Customer will immediately cease using Services and any Software
and Hardware provided under this Agreement.
18. Limits of Liability
18.1. To the maximum extent permitted by law, jStuchbery
Productions will not be liable for any ordinary, incidental, consequential or
special loss or damage (including but not limited to loss of profits, loss of
data and loss of personnel) arising out of any Agreement or the use of the
Products even if appraised of the likelihood of such loss or damage
occurring.
18.2. The liability of jStuchbery Productions
for any of the matters referred to in these Terms and Conditions shall be
limited to the lesser of:
18.2.1. The minimum required by The Trade
Practices Act (Cth) 1974; or b. $100.00 (one hundred dollars).
18.2.2. This limitation of liability
applies:
18.2.2.1. To any personal injury, or loss of,
damage to, or delay in relation to any goods or in relation to any services
provided under any circumstances whatsoever;
18.2.2.2. To any negligent or wrongful act or
deliberate act or default on the part of contractors of jStuchbery Productions,
its agents, servants or subcontractors;
18.2.2.3. To any mis-delivery, delay or
non-delivery (whether any specific time for delivery has been agreed or
not);
18.2.2.4. To any breach of contract or tortious
duty;
18.2.2.5. To any consequential loss for whatever
reason and under any circumstances;
18.2.2.6. For any failure or delay in
performance hereunder due in whole or in part to strikes, work stoppages, fire,
acts of terrorism, accidents, wars, rebellions, civil commotion, public strife,
acts of any government, whether legal or otherwise, acts of public enemies,
forces majeure, or qualified labour, or any other causes beyond the reasonable
control of jStuchbery Productions;
18.2.2.7. For any delays or inabilities to
obtain product because of the actions of a supplier to jStuchbery Productions.
18.2.3. On entering into this contract, the
Customer does so not only on behalf of the business but also as a personal
guarantee to abide by all aspects of the Agreement
18.2.4. The Customer shall defend, indemnify and
hold harmless jStuchbery Productions from and against all claims, costs and
demands whatsoever and by whosoever made in relation to or arising out of the
goods and services provided, in excess of the liability of jStuchbery
Productions under the terms of these conditions and without prejudice to the
generality of this clause, this indemnity shall cover all product failures,
claims, costs and demands arising from or in connection with the negligence or
wrongful or deliberate acts of jStuchbery Productions, its contractors,
servants, sub–contractors and agents.
18.2.5. In the event of the Customer having any
claim regarding the quality or supply of advice, products or services by jStuchbery
Productions the Customer will pursue those rights exclusively through available
legal channels and will not engage in any public act or generate or add comment
in any public forum that will harm the business of jStuchbery Productions or
any of its operations.
18.2.6. Subject to any Commonwealth or State law
that limits jStuchbery Productions’s right to restrict its liability or implies
any warranty or condition or imposes any obligation upon jStuchbery Productions
which cannot be excluded, restricted or modified, and to the extent that jStuchbery
Productions may limit its liability under such law, jStuchbery Productions’s
liability for breach of any such warranty, condition or obligation will be
limited, at its option, to:
18.2.6.1. The redelivery of the Products;
18.2.6.2. The repair of the Products to render
it compliant with the specifications; or
18.2.6.3. The refunding of Fees paid in respect
of the Products giving rise to the liability
18.2.7. When a client engages jStuchbery
Productions for supply of services, jStuchbery Productions is given authority
to act as the client’s legal agent, unless otherwise stated, for services
including, business name registration, company name registration, trade
marking, drafting contracts or agreements, creating licensing packages,
franchise packages, domain registry and any other service signed under a
service contract. jStuchbery Productions is not a law firm and cannot provide
legal advice and will not be held liable for damages if the client understands
and acts on any information provided as legal advice. jStuchbery Productions
does not guarantee any outcomes and will not be held liable when acting as a
legal agent.
19. Guarantee
Where applicable:
19.1. The person (the “Guarantor”) who
undersigned the purchase Agreement on behalf of the Customer guarantees to jStuchbery
Productions that he or she will do everything that the Customer is required to
do under these Trading Terms.
19.2. The Guarantor will separately continually
indemnify jStuchbery Productions against any loss and damage that jStuchbery
Productions suffers because the Customer fails to comply with the Trading
Terms.
19.3. The Guarantor is jointly or severally
liable to perform the terms contained herein with the Customer. jStuchbery
Productions is entitled to enforce these Trading Terms against the Guarantor
solely due to the Customer’s breach of any terms herein.
20. Charging Clause
20.1. The Customer, Directors of the Customer and
Guarantors jointly and severally provide irrevocable guarantees that the
Customer will fully satisfy its obligations pursuant to this Agreement.
20.2. That the said Customer, Directors and
Guarantors provide equitable security over any and all real property in their
possession either now or any time in the future including (but not limited to)
any property, undertaking or rights held as trustee.
20.3. The Customer, Directors of the Customer
and Guarantors provide a caveatable interest over any real property held by
said persons or parties (including by way of joint tenancy) either now or in
the future as security for any monies owing under this agreement plus all of jStuchbery
Productions’s indemnity legal costs.
21. Suspension of Services
21.1. Events of Suspension. jStuchbery
Productions may, in its sole discretion and without derogating from its right
to terminate this Agreement, at any time suspend, restrict or disconnect the
supply of Services to the Customer and/or any of its customers or Users on the
occurrence of any of the following events:
21.1.1. Customer fails to pay any outstanding
invoices within 7 days of written demand by jStuchbery Productions;
21.1.2. Customer breaches jStuchbery Productions’s
Acceptable Use Policy and fails to rectify that breach immediately on written
demand by jStuchbery Productions;
21.1.3. jStuchbery Productions is directed by
any Regulatory Agency and/or authorised law enforcement agency to do so;
21.1.4. During any technical failure,
modification or maintenance of the Service, provided that jStuchbery
Productions will use its reasonable endeavours to ensure that the Service are
resumed as soon as practicable; and/or
21.1.5. jStuchbery Productions deems it
necessary for purposes of scheduled or unscheduled maintenance.
21.2. Consequences of Suspension. jStuchbery
Productions will not reconnect or re-activate Services suspended pursuant to
clause 33.1.1, 33.1.2 and 33.1.3 until Customer has paid any re-connection or
re-activation fee then in effect for each Service. Customer will remain liable
under this Agreement for all payments falling due within the period for
suspension of Services, including without limitation for all fees accruing and
accrued during the suspension.
21.3. Indemnity. Customer agrees to and shall
hold harmless and indemnify jStuchbery Productions against any loss, expenses,
liability, damages or claim made against it by any party whatsoever (including
without limitation Customer, a User or any party claiming through Customer) which
jStuchbery Productions may suffer, directly or indirectly, resulting from or
arising out of any actions taken by it.
22. Amendment of the Terms and Conditions
22.1. Amendment of Agreement: This Agreement may
be amended or varied as follows:
22.1.1. If this Agreement is automatically
extended pursuant to clause 27.1, jStuchbery Productions may, during the
Subsequent Term or Terms, amend or vary the Fees charged for Services and terms
relating to the operation of Services. Such amendment or variation shall become
effective 14 days after the date of posting, and the Customer shall be deemed
to have accepted such amendment if it continues to use the Services after the
amendments become effective.
22.1.2. jStuchbery Productions may from time to
time amend or vary these Terms and Conditions and its Acceptable Usage Policy
by publishing such amendments or variations on the jStuchbery Productions
Website. These amendments and/or variations shall take effect from the date
they are published.
23. Privacy
23.1. jStuchbery Productions may collect, use
and disclose information relating to the Customer for purposes related to the
supply of Services, including without limitation billing and account
management, business management and product development, and to the provision
of information about promotions, products and services of jStuchbery
Productions, but will not use such information so as to breach any Privacy
Law.
23.2. Credit Information: The Customer hereby
agrees and consents to jStuchbery Productions acquiring a credit report from
any credit reporting agency containing personal information (as well as
information concerning commercial creditworthiness and activities) for purpose
of assessment by jStuchbery Productions of an application for credit (whether
commercial or private) or for the collection of payments which are overdue. The
Customer also agrees and consents to jStuchbery Productions reporting
information to any credit reporting agency that the Customer is in default of
the trading terms of this Agreement or that it has handed over collection of
the Customer’s account to a collection agency.
24. Notices
24.1. Any notice to be served on either of the
parties by the other shall be sent by prepaid recorded delivery or registered post
or by facsimile or by electronic mail and shall be deemed to have been received
by the addressee within 72 hours of posting, within 24 hours if sent by
facsimile to the correct facsimile number (with correct answer back), or within
24 hours if sent by electronic mail to the correct electronic mail address of
the addressee.
25. Governing Law
25.1. This Agreement shall be governed by the
law in effect in the State of Victoria, and the parties submit to the
jurisdiction of the Supreme Court of Victoria.
26. Acceptance
26.1. These Terms and Conditions shall be deemed
binding on the Customer by its purchase of the advice, products or services
from jStuchbery Productions.