Terms and Conditions

SMART DIGITAL GROUP PTY LIMITED ACN 611 319 647 is a digital solutions company. SDG provides CMS and Web Hosting services to the Client on the following terms and conditions.

1. Introduction

1.1 The Agreement between SDG and the Client is comprised of the Membership Subscription and these Terms & Conditions.
1.2 SDG reserves the right to use the services of third parties providers in the delivery of the Services.

2. Definitions

Agreement means these Terms & Conditions and the Membership Subscription.

Business days means any day being a Monday Tuesday Wednesday Thursday or Friday excluding public holidays.

Claim means any claim, action, demand, suit, proceedings, demands, liability, compensation, damages, remedy, reimbursement and/or costs whether at common law, in equity or statute.

Client Login Page means a webpage interface provided by SDG to the Client to facilitate provision of the Services.

Confidential Information means all information that is confidential or proprietary or relates to the business or assets of the parties and is not generally known by the public.

Content Management System (CMS) means a computer software program which is used to organise text, images, data and files for the Website from a central interface. CMSs are often used to run websites containing blogs, news, and shopping. CMSs typically aim to avoid the need for hand coding but may support it for specific elements or entire pages. SDG’s CMS is known as Limecube and referred to accordingly in this Agreement.

Intellectual Property Rights means copyright, trade mark, design, patent, semiconductor or circuit layout rights relevant to, inter alia:

(a) the design, layout and graphical material displayed on the Website as a result of the CMS;

(b) the User interface of the CMS including but not limited to screens, organisation, patents and operation or control features, and

(c) all computer software associated with the CMS

Force Majeure means a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to:

(a) acts of God, lightning strikes, earthquakes, floods, storms, explosions, epidemics, pandemics, fires and any natural disaster;

(b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution;

Insolvency Administration, in relation to a party, means any of the following events:

(a) the party ceases to (or is unable to) pay its creditors (or any class of them) in the ordinary course of business, or announces its intention to do so;

(b) a receiver, receiver and manager, administrator, liquidator or similar officer is appointed to that party;

(c) such party enters into, or resolves to enter into, a scheme of arrangement, compromise or composition with any class of creditors;

(d) a resolution is passed or an application to a court is taken for the winding up, dissolution, official management or administration of that party; or

(e) anything having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction;

Materials means any textual, graphical, audio or like materials together with any information, data, computer programs, computer software, applications, hardware, and any materials required by SDG to provide the Services to the Client.
Membership Subscription means the electronic election by the Client as to the type of Services required, the length of time for which a Service is required and the monthly payment to SDG for that Service.

SDG Tools means the proprietary computer software tools used by SDG to supply the Services under this Agreement.
Services means the services related to the provision by SDG of CMS andr Web Hosting as per the Membership Subscription.

Support Services means commercially reasonable technical support to maintain and update the CMS and provide Web Hosting but shall not include the development of enhancements or training or other services outside the scope of the Membership Subscription.

Use means to access, install, download, copy or otherwise benefit from using the functionality of the CMS in accordance with this Agreement.

Web Hosting means of the provision of various services, hardware, and software for websites, as storage and maintenance of site files on a server.

Website means the website(s) of the Client in respect of which website(s), SDG is engaged to provide Services under this Agreement.

3. Promotion

3.1 The Client agrees that SDG may display the Website Design and elements of the design in any format or location (e.g. Instagram) at its absolute discretion for any purpose whatsoever including marketing and promoting SDG services and the designer’s work.

4. Payments

4.1 Fees for the Services as per the Membership Subscription are payable monthly in advance by PayPal to SDG’s account.

4.2 Failure to receive a monthly payment due to being rejected by PayPal will result in immediate suspension of the Services. The Services will not be resumed until all arrears have been paid.

5. Suspension of Services

5.1 SDG accepts no responsibility for any downtime or any other loss or damage suffered by the Client or third parties resulting from the suspension or termination of Services by SDG under this Agreement for any reason.

6 Content Management System

6.1 SDG uses a Content Management System (CMS) created and designed by and proprietary to SDG and known as “Limecube”.

6.2 The Client acknowledges that the CMS may not function with superseded versions of web browsers, with web browsers that are not commonly used, superseded computers systems or on mobile and smartphone devices.

6.3 The Client acknowledges that the fees for services relating to CMS include ongoing updates and covers the update of core CMS functionality and CMS improvements. SDG reserve the right to make updates at times throughout the year as are necessary. The subscription start date is the date of the registration, ie the date from which Clients can access and edit the Website.

6.4 SDG reserves the right to cease supporting one or more plugins of a website but will make reasonable efforts to advise the Client in advance of the withdrawal of support for that module(s).

7 Web Hosting

7.1 The Client acknowledges that SDG uses a third party provider for Web Hosting and SDG will in its complete discretion choose the Web Hosting provider forLimecube.

7.2 SDG accepts no responsibility for delays or down time, breakdown or data loss caused by any third party Web Hosting company and/or internet service providers.

8 Support Services

8.1 SDG provides Support Services by email to the Client 7 days per week.

9 Suspension or Termination of Agreement

9.1 Without prejudice to any other rights SDG may have under this Agreement or at law, SDG may suspend or terminate the Services by giving notice in writing if the Client fails to comply with the terms of this Agreement, including the making of any payment or if the Client becomes or threatens to become or is in jeopardy of becoming subject to any form of Insolvency Administration.

9.2 The Client may terminate this Agreement at any time but will not receive a refund of any fees paid in advance.

9.3 On termination of this Agreement howsoever caused, SDG may delete or destroy any files, images, documents or Materials created for or received from the Client by SDG during the performance of this Agreement and the Client warrants this it will not rely upon SDG as a document storage facility post termination of this Agreement.

10 Limitation of Liability

10.1 The Client agrees that in no event shall SDG be liable for any damages of any type (including loss of data, revenue, profits, opportunity, future earnings, use or other economic advantage) arising out of or in any way connected with:
a. the Services;

b. Client Materials;

c. modifications, alterations or changes made to the Website by the Client or any third party;

d. the interaction of Website with third party applications;

e. a third party Material provided or specified by SDG;

f. the functionality of the third party applications;

g. errors or defects in the Website;

h. the security of the Client’s Website;

i. suspension or termination of Web Hosting services for any reason, or

j. any interruption, inaccuracy, error or omissions, regardless of the cause whether such damages arise in contract, in tort, in equity, under statute, at law or otherwise.

10.2 Subject to clause 10.1, SDG’s aggregate liability to the Client for any claims arising out of or in connection with this Agreement (whether based in contract, tort or under statute) is limited in the aggregate to the amount paid by the Client to SDG in the 12 months’ immediately preceding the event giving rise to the Claim.

11 Warranties and Disclaimer of Warranties

11.1 Except for the express representations and warranties stated in this agreement, SDG makes no warranties and explicitly disclaims any other representation, warranty or guarantee, express, implied, statutory (to the extent permitted by law) or otherwise that:

a. the CMS or Web Hosting will be 100% error free in their construction and/or operation;

b. the use of Services will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, computer program, system or data;

c. any data stored will be accurate or reliable;

d. errors or defects can be corrected;

e. the Services or the server(s) that make the Service available are free of viruses or other harmful components, or

f. the Website will not be hacked.

11.2 The Client acknowledges that a failure in the site, other than a complete failure of consideration, does not constitute a reason to terminate this agreement.

Client Warranties

11.3 The Client warrants:

a. it holds the rights to use all Materials it uses on Limecube and that it is compliant with all third party intellectual property rights of images, content, design and Materials it provides to SDG for the provision of Services under this Agreement, and

b. It is compliant with the Privacy Act 1988, and all Materials provided to SDG including images and content in whatever format provided to SDG by the Client do not breach any privacy law in any jurisdiction.

12 Indemnity

12.1 The Client agrees to release, indemnify (and keep indemnified) and hold harmless SDG, its related entities, directors, employees, agents, contractors and third party providers (Those Indemnified) against any and all Claims, liabilities, loss, costs, damages, fees or expenses (including reasonable solicitors costs) arising from or in any way related to:

a. the use of any and all third party Materials for the provision of Services under this Agreement,

b. the use of any and all images, photos and artwork provided by the Client for the provision of Services under this Agreement,

c. a breach of this Agreement by the Client including outstanding payments and breach of intellectual property,

d. any Material provided by the Client,

e. any delay in the delivery of the Services,

f. any variation, modification, change or addition to the Website by the client or any third party,

g. the use or misuse of the Website Design or Website,

h. any disruption to the Client due to the non availability of the Website,

i. any online payment facility on the Website,

j. any infringement or alleged infringement by any of Those Indemnified of any third party Intellectual Property Rights arising out of the use by those indemnified of any Material supplied to them by the Client or the Client's Personnel

12.2 The Client’s liability to indemnify SDG under this clause 12 will be reduced proportionally to the extent that any fault on SDG’s part contributed to the relevant loss, damage, expense, or liability.

12.3 SDG’s right to be indemnified under this clause 12 is in addition to, and not exclusive of, any other right, power, or remedy provided by law.

13 Security

13.1 The Client acknowledges that websites, web hosting and technology security is a consistent problem and the Client further acknowledges that SDG makes no representation, warranty or guarantee as to the security of the Website and Web Hosting servers.

13.2 If the Website poses a security risk, SDG reserves the right to immediately shut down the website. SDG will not be liable for any damages of any type (including loss of data, revenue, profits, use or other economic advantage) arising out of or in any way connected with the shut down.

14 Intellectual Property

CMS
14.1 Copyright of the CMS remains the property of SDG.

14.2 The Client agrees that SDG may display a link to and/or screen shot(s) of the Website(s) on SDG’s website or in documents for any purpose whatsoever including marketing and promoting SDG.

14.3 Subject to clause 14.5, SDG owns the Intellectual Property Rights in the CMS and Website Design Themes.

14.4 Each party acknowledges that there is no assignment to the other party of Intellectual Property Rights in:

a. any material existing prior to the Commencement Date (including but not limited to logos, graphics, software, documentation, templates and data of either party or their clients) which is incorporated into or which has been used in the course of developing the CMS or which is exchanged between the parties; or

CMS and Source Code

14.5 The CMS, source code, SDG Tools and back end development of the CMS is proprietary to SDG.

14.6 There is no assignment to the Client of the Intellectual Property Rights of the CMS, source code, SDG Tools, all design and source files owned by SDG.

14.7 Subject to the Clients compliance with the provisions of this Agreement and upon receipt by SDG of all amounts payable under this Agreement and any additional fees and charges incurred by the Client, SDG will grant the Client a non-exclusive licence to Use the CMS solely for the purposes of this Agreement. The Client must not modify, adapt, sell or reproduce the CMS. The Client must not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the CMS or Use the CMS in any way other than as provided under this Agreement.

Third Party Materials

14.8 For avoidance of doubt, nothing in the above clauses 14.1 to 14.8 is intended to assign, licence or vest title, right or interest in any Intellectual Property Rights of third parties, which remain the property of their respective owners.

15 Confidential Information

15.1 The Parties may not use or disclose any Confidential Information of the other party except as required for the performance this Agreement or as compelled by law.

16 Dispute Resolution

No Legal Proceedings

16.1 Subject to clause 16.2, both Parties agree not to commence any legal proceedings in respect of any dispute arising under this Agreement, which cannot be resolved by informal discussion, until the procedure provided by clause 16.2 has been utilised.

Dispute Resolution Procedure

16.2 Both Parties agree that any dispute arising during the course of these Terms & Conditions is dealt with as follows:

a. the Party claiming that there is a dispute will send the other a written notice clearly setting out the nature of the dispute and what action is required to settle the dispute;

b. The Party receiving the complaint will reply in writing within ten business days of receipt of the notice of the complaint;

c. the Parties will both attempt in good faith to resolve the dispute fairly through direct negotiation by persons who they have given authority to resolve the dispute;

d. the Parties have five Business Days, or such time as agreed, from the receipt of the reply to reach a resolution or to agree that the dispute is to be submitted to mediation or some alternative dispute resolution procedure; and

e. if:

i. there is no resolution of the dispute;

ii. there is no agreement on submission of the dispute to mediation or some alternative dispute resolution procedure; or

iii. there is a submission to mediation or some other form of alternative dispute resolution procedure, but there is no resolution within 15 Business Days of the submission, or such extended time as the Parties may agree in writing before the expiration of the 15 Business Days,

then, either Party may commence legal proceedings.

17 Force Majeure

17.1 Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.

17.2 The party affected by a Force Majeure event must notify the other party as soon as practical of any anticipated delays.

17.3 If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended. Both parties must agree to a reasonable extension of the time to complete the Services, or failing agreement, determine an appropriate extension of time by the dispute resolution procedure set out in clause 16.

17.4 If a delay or failure by a party to perform its obligations due to Force Majeure exceeds 30 days, either party may immediately rescind the Agreement on providing notice in writing to the other party.

17.5 If this Agreement is rescinded pursuant to clause 17.4, each party releases the other party from:

(a) any further obligation to perform this Agreement; and

(b) any new claim of loss or damage with respect to this Agreement at law or statute that is not subsisting at the time of rescission.

18 General Provisions

Entire Agreement

18.1 The entire Agreement comprises the provisions contained in the Membership Subscription and these Terms & Conditions and supersedes all prior understandings, agreements and documentation relation to such subject matter.

18.2 Modifications, changes and amendments to this Agreement are enforceable only if they are in writing and are signed by both parties.

Severability

18.3 Any provision, or the application of any provision (or part thereof), of this Agreement which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.

18.4 Any provision of, or the application of any provision of, this Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.

18.5 If a clause is wholly or partly void, illegal or unenforceable, it may be wholly or partly severed (as appropriate) without affecting the enforceability of the remaining part of the clause, or any other clause in this Agreement.

Waiver

18.6 A failure or delay by a party at any time to exercise any right it holds under this Agreement will not operate as a waiver of that right. A waiver by either party of a breach of any provision must not be held to be a waiver of any succeeding breach of the provision or a waiver of the provision itself.

18.7 A single or partial exercise by a party of any right it holds under this Agreement will not prevent that party from exercising that right again or exercising that right to the extent it has not already been exercised. In this clause, the word “right” means a right or remedy provided by this Agreement or at law.

Other

18.8 Each Party must upon demand by the other party, return any documents or Material supplied in connection with this Agreement.

18.9 Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the Parties. The Parties acknowledge SDG shall perform its obligations under this Agreement as an independent contractor.

18.10 Any reference to “include” or “includes” or “including” must be construed without limitation.

18.11 Words importing the singular include the plural and vice versa.

18.12 The operation of these clauses 2, 4, 10, 18, 12, 13, 14, 22 and 18 survives the expiration or earlier termination of these Terms & Conditions.

18.13 These Terms & Conditions are to be construed in accordance with the laws of New South Wales.

18.14 This Agreement may be executed in any number of counterparts and all counterparts taken together will constitute one instrument.

18.15 By executing this agreement each signatory represents that he or she is authorised to sign on behalf of SDG and the Client as the case may be.