Terms and Conditions

1. Application

These Terms and Conditions ("Agreement") are between Code Digital and you for the provision of certain Services described below.

The Agreement comprises: (a) these Terms and Conditions; (b) the Service List set out below and your Proposal document; and (c) Terms and Conditions relevant to each of your Services which are expressly incorporated herein (as the context permits). You acknowledge that you have read, understood and agreed to Terms and Conditions relevant to each of your Services, together with these Terms and Conditions, and agree to be bound by them. Code Digital is only willing to supply Services on Terms and Conditions relevant to each Service and your continued receipt or use of the Services indicates your agreement to the Terms and Conditions relevant for each Service, together with these Terms and Conditions.

1.1 The following definitions shall apply:

Materials: content, images and databases provided to Code Digital by you from time to time that are incorporated, or to be incorporated, in the Site (where applicable)

Site: the website to be designed, built, hosted or marketed by Code Digital, the url of which is set out in your Proposal document, pursuant to this Agreement.

Site Software: software for the Site commissioned by you independently of Code Digital, (where applicable).

You / Client: the company working with Code Digital, who may be referred to in our Services Agreement.

2. Services and the Service List

2.1 The Service List below sets out Services offered by Code Digital and the Terms and Conditions relevant to each Service which apply to each of the Services.

2.2 When you agree to this Agreement by purchasing a particular Service, you also agree to be bound by the Terms and Conditions relevant to each of your Services. The Services List (item 3) is not exclusive and some services may require a combination of these services and others. Any additional, unlisted services will also be provided based on your agreement to be bound by these Terms and Conditions.

2.3 For any of the Services offered by Code Digital there is no guarantee of results and all indications are based on previous performance for forecasting and planning purposes only. Past performance is not an indicator of future performance. Code Digital does not guarantee results and do not accept liability for failure to meet or exceed any estimates that we give to you.

2.4 Code Digital may include a statement, such as, but not limited to "Site by Code Digital" on the home page of the Site, together with a hyperlink to the Code Digital website. By negotiation/discussion we may choose to remove the hyperlink.

3. Services List

3.1 Web Design and Development

3.1.1 Code Digital shall provide web design and development and related services, and perform its obligations, in accordance with your Proposal document.

3.1.2 Code Digital shall provide the Services in accordance with your Proposal document and this Agreement and any timeframes set out therein shall be estimates only and time for performance shall not be of the essence.

3.1.3 You shall be responsible for the accuracy and completeness of the Materials. Intellectual Property and Confidentiality is subject to the terms and conditions in item 12.

3.1.4 Code Digital shall not be liable for any delays resulting from your failure to fulfil any of your obligations. Code Digital reserves the right to invoice you for any additional expenses reasonably incurred by Code Digital as a result of such delays.

3.1.5 You acknowledge that the ability of Code Digital to provide the Services is dependent upon your full and timely co-operation (which you agree to provide), as well as the accuracy and completeness of the design specifications, and any other information and data provided by you or on your behalf.

3.1.6 You shall provide Code Digital with access to, and use of, all information, data and documentation reasonably required by Code Digital for its performance of its obligations.

3.2 Consulting and Training Services

3.2.1 Code Digital shall provide consulting, training and related services.

3.2.2 Code Digital shall provide the Services in accordance with your Proposal document and this Agreement and any timeframes set out therein shall be estimates only and time for performance shall not be of the essence.

3.3 Marketing Services

3.3.1 Code Digital shall provide search engine optimisation, search engine marketing, display marketing and other related marketing services.

3.3.2 Code Digital shall provide the Services in accordance with your Proposal document and this Agreement and any timeframes set out therein shall be estimates only and time for performance shall not be of the essence.

3.3.3 For Search Engine Optimisation, Code Digital does guarantee to work outside of our paid agreement to a reasonable degree, as determined by Code Digital, in the event that we cannot get your website onto the first page within the first 90 days. Our estimated results and all indications are based on previous performance for forecasting and planning purposes only. Past performance is not an indicator of future performance. Code Digital does not guarantee results and do not accept liability for failure to meet or exceed any estimates that we give to you.

3.4 Domain and Hosting Services

3.4.1 Code Digital shall provide domain name registration, hosting and other related services.

3.4.2 Code Digital shall provide the Services in accordance with your Proposal document and this Agreement and any timeframes set out therein shall be estimates only and time for performance shall not be of the essence.

3.4.3 Hosting Services shall be provided without any guarantees, conditions or warranties as to its accuracy, speed, uptime, completeness, reliability, suitability or currency of Hosting Services and they are provided on an "as is where is" basis. Code Digital does not warrant that the Hosting Services or the Site will be uninterrupted or error free, will meet your requirements (such as speed, uptime, performance or reliability), nor will they be free from external intruders (hackers), unauthorised virus or worm dissemination. Any timeframes are provided as a guide or estimate only.

4. Variations and Cancellations

4.1 The Client can cancel their Agreements with Code Digital at any time, but must supply 30 days’ notice for any cancellation. Notwithstanding any credit terms previously established with Client or any other provision of a Services Agreement, upon notice of termination of an Agreement, all monies owed by Client to Code Digital for work completed shall become immediately due and payable, including the 30 days’ notice period and if a Services Agreeement is in place, 50% of the balance of the contract amount shall become immediately due and payable.

4.2 You may change Services by notifying Code Digital in writing. Your new Service will take effect from the date Code Digital commences provision of the new Services in accordance with your new Service Proposal document, or as otherwise agreed in writing by Code Digital. Your next invoice will reflect: (a) Charges applicable to your new Service from the date of the notice; (b) Charges for any remaining invoice period for your previous Service(s) (whether or not such Service(s) are utilised during such remaining invoice period); (c) Charges for amounts then due but unbilled for your previous Service(s); (d) Charges for costs associated with any Service change or cancellation, where such costs are based on the standard rates of Code Digital at the time. Any amounts or deposits already paid by you for a changed, cancelled or discontinued Service shall not be refunded in any circumstances and (e) any contractual obligations will be upheld, which may include invoices for services not yet provided.

4.3 Code Digital may change these Terms and Conditions, the Services or the Terms and Conditions relevant to each Service, by giving you written notice (whether by email, fax or post to your designated email address, fax number or postal address, notified by you to Code Digital as part of your registration process). Where a change relates to an increase in Charges, Code Digital shall provide you with thirty (30) days' prior written notice.

5. Terms

This Agreement commences on date Code Digital confirms to you that Service has been activated or such other date as agreed by us in writing ("Commencement Date") and continues until terminated in accordance with the terms contained herein.

6. Charges and Payment

6.1 The Charges payable for each Service, whether recurring or not, are set out in your Proposal document. The Charges shall be payable in Australian dollars within 7 days of the date of the invoice or on such other payment terms set out therein and must be made by one of the methods outlined in the invoices provided by Code Digital. All deposits or advanced payments are non-refundable.

6.2 You remain committed to pay us for all Charges for Services for their full invoicing periods (as selected in your Proposal document), irrespective of whether: (a) this Agreement (or any Terms and Conditions) have been suspended or terminated during such invoicing period, or (b) such Services have been changed or cancelled during such invoicing period.

6.3 Unless otherwise stated, all Charges and other amounts payable are exclusive of GST. If GST becomes payable on any supply made or provided, on which GST is not payable at the date of this Agreement, you will pay Code Digital an additional amount equal to value of consideration for the supply multiplied by the prevailing GST rate.

6.4 Code Digital may set off any amounts due and payable under this Agreement against amounts that may be payable by Code Digital to you.

6.5 Code Digital reserves right to charge interest on overdue amounts at 2.5% per month ruling on prior due dates. Initially for all clients we require 7 day payment, however for longer term clients we will offer 30 day payment terms at our discretion.

6.6 In the event of late payment, Code Digital may give you notice to suspend work and your use of and access to Services (including public access to your web content and delivery of email) may be limited, until outstanding invoice(s) and interest have been paid in full. Charges shall continue to accrue during such period of suspension time for payment shall be of the essence.

6.7 Invoices may only be disputed by you by providing Code Digital with written details of the dispute within fourteen (14) days of the date of the invoice, failing which the invoice shall be deemed to have been accepted by you. You shall remain liable to make payment of any undisputed portions of an invoice.

6.8 Additional charges shall be payable for out-of-scope work, that is work not otherwise expressly set out in your Proposal document (including, without limitation, work in relation to extra design concepts or revisions, extra project management and support hours).

7. Termination

7.1 Code Digital may terminate or suspend this Agreement (without any liability): (a) at any time by giving you at least 1 month notice; (b) immediately on giving notice to you, if you breach, including failure to pay the Charges; or (c) you become insolvent within the meaning of Corporations Act, are otherwise unable to pay your debts when due or you cease to carry on business.

7.2 Code Digital may also suspend or terminate particular Services in accordance with Terms and Conditions relevant to such Service (without any liability) and should it elect to reinstate such suspended Service you shall be responsible for Code Digital's standard re-activation charge. Termination of individual Terms and Conditions relevant to a Service shall not affect the continuation of these Terms and Conditions or any other individual Terms and Conditions relevant to other Services, then in force.

7.3 On termination or expiration of this Agreement, or any Terms and Conditions relevant to a Service:

(a) Code Digital shall invoice you for all amounts then due but unbilled and it may delete all data, materials, content, configuration and settings in connection with your Services, whether on a Code Digital storage media or otherwise. It is your obligation to ensure you have retained back-up copies.

(b) Any amounts or deposits already paid by you shall not be refunded in any circumstances.

(c) The licence in clause 12.2 and the right to access in clause 12.3 shall automatically come to an end.

8. Liability

8.1 Services shall be provided without any guarantees, conditions or warranties as to its accuracy, completeness, reliability, suitability or currency of Services and they are provided on an "as is where is" basis. Code Digital does not warrant that the Services will be uninterrupted or error free, will meet your requirements, nor will they be free from external intruders (hackers), unauthorised virus or worm dissemination. Any timeframes are provided as a guide or estimate only.

8.2 To extent permitted by law, Code Digital, its directors and employees hereby expressly exclude: (a) all conditions, warranties and other terms which might otherwise be implied by statute, common law or equity; and (b) any liability for any direct, indirect or consequential loss or damage incurred by you or any end user in connection with Services, or use of Services, including, without limitation any liability for loss of income or revenue; loss or interruption of business; loss of profits; loss of anticipated savings; loss of data; loss of goodwill; wasted management; and for any other loss or damage of any kind, however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.

8.3 This does not affect liability of Code Digital which cannot be excluded or limited at law. Without limiting foregoing, parties acknowledge that laws in certain jurisdictions may imply warranties and conditions which cannot be excluded, restricted or modified except to a limited extent. If any such laws apply, then to extent permitted by law of relevant jurisdiction, Code Digital's liability is limited to any one or more of the following in its sole discretion: (a) in case of any goods, replacement or repair of goods, or supply of equivalent goods, or payment of cost of repairing or replacing goods or supplying equivalent goods; and (b) in case of any services, supply of services again or payment of cost of having services supplied again.

8.4 Without limiting foregoing, you agree that in no event shall Code Digital's maximum aggregate liability exceed the value of the Services provided, up to a maximum of AUD$10,000.00.

8.5 You shall indemnify Code Digital, its directors, employees and representatives from and against all actions, claims, suits, damages, liabilities or costs (including legal costs) arising from, or directly or indirectly related to provision of materials by you, use of Services by you or anyone else, or otherwise arising as a result of this Agreement.

8.6 Each of the Terms and Conditions relevant to a Service may contain specific provision in relation to your liability for each Service (including warranties and representations made by you). You acknowledge that you have read and understood each of the Terms and Conditions relevant to your Service and agree to be bound by them.

9. Notices

9.1 All notices given by Code Digital may be given by email to email address notified by you to Code Digital as part of your registration process. It is your obligation to keep that email address current and correct. You agree and acknowledge that the record of Code Digital having sent a notice to you by email is, of itself, conclusive proof of receipt.

9.2 Notices given by you must be delivered to Code Digital in writing and addressed to: Unit 4, 24 Eighth Avenue, Coorparoo 4151, Brisbane Queensland Australia (with a copy by email to admin@codedigital.com.au).

10. Force Majeure

Code Digital shall not be responsible for any delay, suspension or failure arising out of any circumstances outside of its reasonable control, including but not limited to, acts of God, governmental actions, labour difficulty, war or national emergency, terrorism, fire, explosion, flood, an act or omission of a third party, inability to obtain any materials, equipment, facilities or services, failure of performance provided by others, internet interruption or virus, breakdown software, hardware or communication network.

11. Non-solicitation

You shall not, during duration of this Agreement, and for a period of two (2) years thereafter, hire, engage, solicit, employ or contract the services of any of the employees or contractors of Code Digital or others involved in the provision of Services.

12. Intellectual Property and Confidentiality

12.1 Code Digital retains copyright and all other intellectual property rights in: (a) all programming modules, code, computer programmes, material, tools, drawings, documents, presentations, specifications, data, designs, know-how and anything else generated, whether as improvements or otherwise, in course of providing (directly or indirectly) the Services; and (b) all intellectual property rights existing prior to the commencement of such Services ("Code Digital IP"). Unless agreed otherwise in writing, Code Digital shall be entitled to claim authorship for any work which it is responsible.

12.2 Code Digital licenses to you the right to access the Code Digital IP on a non-exclusive basis to such extent as is necessary to enable you to make reasonable use of the relevant Services for the duration of the Agreement or the duration of the Terms and Conditions relevant to a Service (as the case may be).

12.3 You acknowledge that Services may include individual third party software or third party intellectual property rights (including, with limitation, content management system and open source software) ("Third Party IP") and the licence in clause 12.2 and your rights to use Services is without prejudice to the Third Party IP. Any rights you may have to access Third Party IP shall be limited to extent of Code Digital's right to access same and its ability to pass on such rights to you.

12.4 In relation to licence (clause 12.2) and right to access (clause 12.3): (a) they will both automatically terminate if Agreement, or Terms and Conditions relevant to a Service, comes to an end; and (b) they do not include right to replicate, commercialise, adapt, modify, reverse engineer, decompile or disassemble wholly or partly.

12.4 Subject to clauses 12.2, 12.3 and 12.4, and following receipt by Code Digital of all relevant outstanding Charges, you shall own all copyright in any graphic design or visual aesthetics created by Code Digital specifically and solely for you in accordance with this Agreement and the relevant Proposal document.

12.5 In relation to any data, content, information or material provided by you to us, you warrant that same will not infringe the rights of any third party nor contravene any law or industry code.

12.6 Save as required by law, you shall not disclose any confidential information relating to Code Digital or its affiliates which you obtain during or arising out of this Agreement, to anyone (except your employees on a need to know basis). You shall procure that anyone else receiving benefit of Services, whether your employees or otherwise, comply with terms of this clause as if they were a party to this Agreement.

13. Entire Agreement

This Agreement, and the documents referred to herein, contains the entire understanding between the parties as to its subject matter and supersedes and excludes all prior and other discussions, specifications, representations and arrangements relating to Services including, but not limited to, those relating to performance or results that ought be expected from using Services. Any representations (oral or written) given by, or on behalf of, Code Digital shall not be relied upon. Notwithstanding, you shall also be bound by any policies or guidelines of Code Digital, currently situated here http://codedigital.com.au/terms-conditions, as updated by Code Digital from time to time.

14. Governing Law

This Agreement (and each Terms and Conditions relevant to a Service) and any dispute or claim arising out of or in connection with same shall be governed by and construed in accordance with the laws of Queensland, Australia and parties submit to the exclusive jurisdiction of that State.