TERMS & CONDITIONS
Last updated 29th August 2012
Please note that these terms supersede any terms which were previously in place.
Welcome to our website. If you continue to browse and use this website, you are agreeing to comply with and be bound by the following terms and conditions of use, which together with our privacy policy govern Conscious Music’s relationship with you in relation to this website. If you disagree with any part of these terms and conditions, please do not use our website.
The term ‘Conscious Music’ or ‘us’ or ‘we’ refers to the owner of the website whose registered office is PO BOX 5888, Maroochydore BC, QLD 4558, Australia. Our ABN is 63 850 974 860. The term ‘you’ refers to the user or viewer of our website.
The use of this website is subject to the following terms of use:
• The content of the pages of this website is for your general information and use only. It is subject to change without notice.
• Neither we nor any third parties provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the information and materials found or offered on this website for any particular purpose. You acknowledge that such information and materials may contain inaccuracies or errors and we expressly exclude liability for any such inaccuracies or errors to the fullest extent permitted by law.
• Your use of any information or materials on this website is entirely at your own risk, for which we shall not be liable. It shall be your own responsibility to ensure that any products, services or information available through this website meet your specific requirements.
• This website contains material which is owned by or licensed to us. This material includes, but is not limited to, the design, layout, look, appearance and graphics. Reproduction is prohibited other than in accordance with the copyright notice, which forms part of these terms and conditions.
• All trademarks reproduced in this website, which are not the property of, or licensed to the operator, are acknowledged on the website.
• Unauthorised use of this website may give rise to a claim for damages and/or be a criminal offence.
• From time to time, this website may also include links to other websites. These links are provided for your convenience to provide further information. They do not signify that we endorse the website(s). We have no responsibility for the content of the linked website(s).
• Your use of this website and any dispute arising out of such use of the website is subject to the laws of Queensland, Australia.
• All prices are exclusive of GST unless otherwise mentioned.
CLIENT TERMS OF AGREEMENT
Last updated 2 January 2011
Please note that these terms supersede any terms which were previously in place.
CLIENT TERMS OF AGREEMENT
BETWEEN: Conscious Music Trust, T/A Conscious Music (CM/we/us/our);
AND: The party named in The Estimate sent (Client/you/your).
1. PROVISION OF SERVICES
You have retained us to provide the creative services specified in the Estimate (the Services).
This Client Terms of Agreement (Agreement) sets out the contractual arrangements between you and us in relation to the provision of the Services.
Although provision is made for you to execute this document, execution is not necessary in order for this Agreement to be binding on the parties. This Agreement can be accepted by you and consequently become binding by virtue of any of the following (without limitation):
(a) electronically, via “click and accept” forms and online windows;
(b) giving further instructions to us and acting in a manner which would suggest that you agree to be bound by the terms of this Agreement.
Unless we notify you otherwise, the terms and conditions of this Agreement will also apply to any Additional Services.
2. CHARGES FOR SERVICES
In return for the provision of the Services you agree to pay:
• the fees specified on The Estimate;
• any expenses properly incurred by us; and
• any fees for Additional Services which we may invoice you for (Our Charges).
Before we commence providing you with the Services you must pay us the deposit specified on the invoice issued. Before commencing any Additional Services we may request the payment of further invoices/retainers and we may not commence provision of any Additional Services until such time as payment of the further retainer is made.
The balance of Our Charges and any other amounts payable by you will be invoiced to you at the frequency specified on The Invoice.
All invoices issued by us will be inclusive of any GST but will not include any other taxes, duties or charges imposed or levied in Australia or overseas in connection with the supply of the Services and we will be entitled to invoice you, and you agree to indemnify us, should we become liable for any for such taxes, duties or charges
All invoices issued by us pursuant to this Agreement must be paid by you within 7 days of the date of the invoice (Payment Terms)
All payments of Our Charges or other sums payable to us under this Agreement must be paid to the bank account specified on The Invoice under ‘Terms’ or any other bank account we may nominate from time to time, using the payment method specified on The Invoice
If you request a credit card account, you give us authorisation to automatically debit your credit card for all of Our Charges immediately upon us issuing you with an invoice for those charges. By opting to pay via credit card you are giving your permission for your payment to be processed online via our secure gateway on PayPal or any other secure internet payment system.
Whilst we will use our best endeavours to ensure the security of any payment system that we use, we cannot guarantee that any system will never be breached and you agree to indemnify us and hold us free from liability for any adverse consequences that may arise out of a breach of the security of any payment system used.
3. EXPENSES
In addition to Our Charges, you must pay all out of pocket expenses properly incurred by us on your behalf or in respect of our provision of the Services including (without limitation) travel and accommodation, image licence fees, software licence fees, courier and postage fees and printing expenses (Expenses). Where it is practical to do so, we will endeavour to obtain your consent before incurring any Expenses, however your liability is not contingent on us doing so.
4. CONSEQUENCES OF NON-PAYMENT
If you fail to make payment of any invoice issued by us within the Payment Terms we will be entitled to charge you interest on the outstanding amount with the interest payable calculated at 4% per month until the outstanding amount is paid in full (together with any interest).
If you fail to make any payment of Our Charges or any other fees payable to us under this Agreement or any other agreement between you and us by the due date for payment then, without prejudice to any other rights relating to that failure (including, without limitation any right of termination under clause 20), we will have the right to suspend the provision of the Services and any other services provided to you by us (whether such services are the subject of this Agreement or otherwise) until such time as the particular payment is made by you in full.
You acknowledge that we will not be liable for any Loss or Damage suffered by you as a result of us exercising our rights under this clause.
5. YOUR OBLIGATIONS
You warrant to us that:
(a) you own or are entitled to the Intellectual Property or other proprietary rights in all material, concepts, information, content or brands which you provide to us in relation to our provision of the Services or which you request we provide Services in respect of (the Background Material);
(b) the use and development of the Background Material by us will not infringe the Intellectual Property or other proprietary rights of any third party;
(c) the Background Material does not contain any information which is misleading, deceptive, defamatory or which contravenes any applicable statutory or legislative rules; and
(d) you will promptly respond to any requests made by us for additional documentation, information or assistance relevant to the delivery of the Services.
6. DELIVERY OF SERVICES
We will use reasonable endeavours to meet completion dates specified in any proposal or otherwise agreed (the Completion Dates), however you acknowledge that any Completion Dates are merely an estimate and we will not be held liable for any Loss or Damage suffered by you as a result of any failure to meet any Completion Dates and any reliance you have made on any estimated Completion Dates.
At any stage of the provision of the Services we may require your sign off and final approval for the relevant project details. You must not unreasonably withhold your sign off and final approval.
Any modifications or amendment requests made by you following sign off and final approval will result in additional fees and charges being payable by you. We will notify you of the amounts of these additional fees and charges following the modification request.
In some cases where a project has exceeded its specified parameters on the initial proposal signed off on, additional charges may be incurred and we will notify you of the details of these charges.
7. DOMAIN NAME SERVICES
Where the Services include the provision of any domain name registration or hosting services:
(a) we provide no warranties or guarantees that domain names applied for are available for registration or are capable of being registered by you. Accordingly, you should take no action in respect of your requested domain name(s) until you have been notified that your requested domain name has been registered and that you have the right to obtain that name.
(b) both the registration of any domain names (Domain Names) and the ongoing use of the Domain Names by you may be subject to the relevant domain name authority’s terms and conditions of use. You will be solely responsible for ensuring that you are aware of the terms and conditions and that you comply with the terms and conditions. You irrevocably waive any claims you may have against us in respect of the decision of a naming authority to refuse to register any domain name and, without limitation, agree that any administration charge paid by you to us for registration of a refused domain name is non-refundable.
(c) If we are not responsible for the initial registration of your Domain Names, you accept that it is your responsibility to ensure that your Domain Name licences are renewed. We will accept no responsibility or liability for the renewal of your Domain Names unless you expressly retain us to arrange for renewal.
(d) If we register your Domain Name and you request that we arrange for renewal of the Domain Name you must pay all renewal fees and expenses to us. Upon payment of such fees and expenses we will use reasonable efforts to arrange for the renewal of the Domain Name provided that you acknowledge that we will not be responsible for any Loss or Damage you suffer as a result of any failure by us to obtain renewal of any Domain Name.
(e) If you request that we undertake the renewal of a Domain Name on your behalf where the original registrar for the Domain Name is different to our domain name registrar of choice, the renewal of the Domain Name by us will be dependant on your agreement to transfer the domain to our preferred registrar.
(f) Requests for cancellation of a Domain Name registration may be accepted up to 24 hours after registration of the domain by our registrar. Fees may apply for cancellation of a registered domain.
(g) If you request that we record a change of ownership of a Domain Name, we will use reasonable efforts to arrange for the recording of the change of ownership provided that you acknowledge that fees may be payable for the transfer and the transfer may be subject to the rules of the relevant domain name registrar.
(h) We accept no responsibility in respect of the use of a Domain Name by you and any dispute between you and any other individual or organisation regarding a domain name must be resolved between the parties concerned and we will take no part in any such dispute. We reserve the right, on our becoming aware of such a dispute, at our sole discretion and without giving any reason, to either suspend or cancel the Domain Name, and/or to make appropriate representations to the relevant naming authority.
8. WEB DESIGN DEVELOPMENT HOSTING SERVICES
You agree that in the provision of web design and hosting services by us:(a) we may use the services of third party contractors, and pass on to such contractors any information or materials, including design brief and content, provided to us by you;
(b) you are responsible to keep a copy of any existing web site which we may replace pursuant to the provision of web design services;
(c) if you are not satisfied with the initial design concepts for the web site in accordance with the services agreed upon between us, you may request additional design concepts (subject to our agreement on further fees) or request a refund of your fees less a $300 service fee, plus GST if any, payable to us;
(d) we are not responsible for the contents of any web site we design for you, and upon publication you must satisfy yourselves that the web site will comply with all applicable laws, and codes of practice governing the use of web sites and related services;
(e) we cannot be responsible for, nor do we warrant that the provision of web design services will increase your business sales or enquiries;
(f) web hosting services provided through CM are subject to the terms and conditions of the web hosting supplier and you agree to indemnify CM for your failure to familiarise yourself with those terms and any loss, claim or damage arising out of your failure to comply with those terms; and
(g) the scope of design work does not include any work that is not specified on the estimate, including without limitation, logo design, writing services, proofing, editing, image sourcing, retouching and resizing. These are charged as an additional fee unless otherwise specified.
10. SEARCH ENGINE OPTIMISATION SERVICES AND SOCIAL MEDIA NETWORKING
If the Services include search engine optimisation or social media networking services we will use reasonable efforts to improve the position of your web site or social media link in the relevant search engine results in response to a search request, however we:
• do not warrant that our efforts to improve your search engine ranking will be successful;
• cannot warrant increased exposure on account of your social media networking; and
• cannot be held responsible for any changes to the position of your web site in the search engines results in response to a search request.
If you cancel the search engine optimisation or social media networking services all link building, social media publication and associated services undertaken by us in order to increase your search engine ranking will immediately cease.
9. TECHNICAL SUPPORT
Following completion of the Services, if you request any support or assistance regarding the use, operation or implementation of the Services or Service Materials we will be entitled to charge you for the provision of such support on a time basis in accordance with our technical support hourly rates as they may be from time to time (which can be obtained from us on request).
10. CONFIDENTIALITY
We will not, without your prior consent:
• disclose to third parties any of your confidential data, information or trade secrets which we have access to;
• supply your organisational or personal contact details to third parties for marketing purposes (other than that which is reasonable required in the provision of our Services, involving the publication of web sites and search engine submissions and/or web site or offline promotion).
In the course of your relationship with us you may be given access to, or come into possession of, confidential information which may contain trade secrets, proprietary data or other confidential material of ours. By entering into this Agreement you agree not to disclose any confidential, sensitive or other information about us, our directors, staff, systems, contacts, procedures, policies, company manuals, or otherwise. This applies both during the contract and for a perpetual period following termination of the contract.
Any username or password issued to you by us is considered confidential and must not be divulged to any other person or organisation. Reasonable precautions should be taken by you to protect this information from discovery by others. If you believe that any confidential material of ours has come into possession of a party outside of this Agreement, you agree to notify us immediately.
15. INTELLECTUAL PROPERTY
We retain ownership of all Intellectual Property in the Service Materials and you agree that, apart from the provisions of this clause 15, nothing in this Agreement will be construed as giving you any ownership or other rights in respect of the Intellectual Property in the Service Materials.
We grant you a limited licence, revocable at any time upon notice, to use the Service Materials solely for the purpose specified on the estimate/invoice.
16. LIMITATION OF LIABILITY
We make and offer no express or implied warranties in relation to our provision of the Services.
We expressly exclude from this Agreement all conditions, warranties and terms which may be implied in relation to our provision of the Services by statute, custom, general law or any applicable international conventions.
To the extent that the Trade Practices Act 1974 (Cth) or any other comparable legislation applies to this Agreement and implies any condition or warranty in relation to our provision of the Services or the performance of our obligations under this Agreement, which cannot be excluded, our liability for a breach of the implied condition or warranty will be limited, to the extent permitted by law, to providing you with a refund of the proportion of fees, charges and expenses paid by you for the specific Services in respect of which the breach occurred.
You indemnify us fully and irrevocably from all losses, liabilities, costs or claims arising directly or indirectly out of provision of the Services or this Agreement.
17. TITLE TO SERVICE MATERIALS
We will deliver any applicable Service Materials to you in any technical or other format we consider appropriate.
Legal and beneficial title to any Service Materials delivered to you remains with us and will only pass to you upon you making full payment of all invoices issued by us in relation to the development of the Service Materials.
You agree that:
(a) you will be a bailee of the Service Materials until such time as legal and beneficial title in them passes to you;
(b) pending payment in full of all invoices issued by us in relation to the development of the Service Materials you:
(i) must not apply the Service Materials outside the ordinary use or course of the Business;
(ii) must not allow any person to have or acquire any security interest in the Service Materials;
(iii) agree that we may recover the Service Materials and have an irrevocable licence to enter onto your business or other premises where the Service Materials are stored to do so; and
(iv) agree to keep the proceeds of payment for the Services utilising the Service Materials in a separate bank account on trust for us until payment in full.
17.1 Personal Property Security Interest (PPSI)
17.1.1 The Client acknowledges that Conscious Music maintains an interest in the title of any Service Materials from the date this Agreement is executed by the Client until full payment of all invoices issued by us in relation to the development of the Service Materials. Conscious Music’s interest in the Equipment is a Security Interest.
17.1.2 The Client acknowledges that so long as Conscious Music maintains any interest in the Service Materials, it will be a first priority interest.
17.1.3 The Client agrees to fully indemnify Conscious Music for any loss incurred as a result of the Client allowing, assisting, or enabling another party to obtain a priority interest in the Service Materials ahead of Conscious Music’s by virtue of priority rules pursuant to PPS Legislation.
17.1.4 The Client consents to and agrees to immediately do all things necessary to effect the registration of Conscious Music’s interest in the Service Materials in a PPS Register currently in place or which is established in the future.
17.1.5 To the fullest extent permissible under any law, we reserve the right to the right to be indemnified from you for:
(v) any costs incurred in taking any action pursuant to this clause 17; and
(vi) any claims brought against us in the event we repossesses Service Materials subject to a prior Security Interest in the PPS Register.
18. INDEMNITIES
You must indemnify and keep us indemnified against any Loss or Damage incurred by or awarded against us which arises directly or indirectly out of:
(a) any breach of this Agreement by you or your agents including (without limitation) any breach in respect of which we exercise a Right to terminate this Agreement;
(b) any warranty or representation made by you being in any way untrue or inaccurate;
(c) our provision of the Services to you; or
(d) any negligent, unlawful or wilful act or omission of you or your employees, agents or contractors.
19. SCOPE VARIATIONS
If there are any significant variations to the Services we will request permission from you prior to this work proceeding. This request will outline any additional costs for this work.
A request to vary the scope of the Services may be provided to you (and validly accepted by you) electronically, including without limitation, via “Click and Accept” forms and online windows.
You are not obliged to accept the proposed amendments to the Agreement, however by clicking ‘Accept’ you:
(a) agree that you have fully read and wish to be bound by those changes as incorporated into this Agreement; and
(b) acknowledge that CM has relied upon your acceptance via “Click and Accept” and fully indemnify CM from any loss, claim or damage arising on account of any allegation that its “Click and Accept” method is not binding on you.
20. TERMINATION
We may terminate this Agreement at any time and without cause by providing you with 14 days written notice of termination.
Without limiting the above termination rights and any other rights or remedies we may have against you arising out of or in connection with this Agreement, we may terminate this Agreement effective immediately upon us providing you with Notice of termination, if:
(a) you go into liquidation or are wound up or become insolvent or have a receiver appointed over all or any substantial part of your assets;
(b) you propose or enter into any schemes or arrangements with your creditors;
(c) you become unable to pay your debts as and when they fall due;
(d) you dispose of the whole or any part of your assets, operations or business other than in the ordinary course of business;
(e) you fail to pay Our Charges or any other amounts payable to us under this Agreement by the due date for payment; or
(f) you fail to remedy within seven days after written demand for remedy has been made by us, any breach or non-observance or non-performance of the covenants, conditions and obligations imposed on you pursuant to this Agreement.
On termination of this agreement we will be entitled to immediately block any web site we host and to remove all data located on it. We will hold such data for a period of 14 days and allow you to collect it, at your expense ($150/hr), failing which we will be entitled to delete all such data. We will further be entitled to post such notice in respect of the non-availability of your web site as we deem appropriate.
If this Agreement is terminated prior to the completion of any Services or Service Materials, we will be entitled to retain the retainer specified in the invoice and any other amounts paid to us and by you and we will not have any obligations to complete the Services or Service Materials or provide you with access to or copies of the Service Materials.
CM reserves its rights to seek further compensation or other remedies available to it at law for part performance or any other legal action arising from your termination. CM’s decision whether or not to pursue liquidated damages in these circumstances rests solely with CM and is not waived by any conduct or delay of CM.
If you wish to terminate your domain name hosting/email account or website design/development services with Conscious Music, you must do so by completing a cancellation form, available on request from [email protected]. If you do not provide us with a cancellation form before the expiry of the relevant period, your account will be automatically renewed for the same subscription period and you will be liable for, and immediately invoiced upon the commencement of the additional subscription period. Specifically, Conscious Music will not accept verbal instructions to terminate an account. On receipt of your cancellation request, Conscious Music will cancel your service at the first available opportunity.
21. SPECIAL CONDITIONS
Any Special Conditions specified in Annexure A will apply to this Agreement and to the extent of any inconsistency between a Special Condition and any other term of this Agreement the Special Condition will take priority in determining the parties intention with respect to the Agreement.
22. GENERAL
Except where expressly provided otherwise, any notice to be given by either party to the other may be sent by either email, fax, post or courier to the address of the other party as appearing in this Agreement or ancillary application forms or such other address as a party may from time to time have communicated to the other in writing. Correspondence sent by:
• email will, unless the contrary is proven, be deemed to be received on the day it was sent; or i
• fax will be deemed to be served on receipt of an error free transmission report; or
• post or courier will be deemed to be served two days following the date of posting.
The interpretation and construction of this Agreement will be governed and determined in accordance with the law of the State of Queensland and the parties submit to the non-exclusive jurisdiction of the courts of that State.
The parties will each pay their own legal costs and disbursements incurred in the preparation and execution of this Agreement.
You may not assign any of your rights or obligations under this Agreement, without our prior written consent, which consent may be given or withheld or given subject to such terms and conditions in our absolute discretion.
We may assign any of our rights and obligations under this Agreement to a third party by providing you with notice of the assignment.
No variation of this Agreement nor consent to a departure by a party from a provision, will be of effect unless it is in writing, signed by the parties or (in the case of a waiver) by the party giving it. Any such variation or consent will be effective only to the extent to or for which it may be made or given.
The non-exercise of or delay in exercising a right of a party will not operate as a waiver of that right, nor does a single exercise of a right preclude another exercise of it or the exercise of other rights. A right may only be waived by notice, signed by the party (or its authorised representative) to be bound by the waiver.
Each party to this Agreement will do all things and sign, execute and deliver all deeds and other documents as may be legally necessary or reasonably required of it by notice from another party to carry out and give effect to the terms and intentions of this Agreement. This includes any acts required to perfect, protect and preserve the rights of the other parties to this Agreement.
This Agreement will, 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:
(a) that provision will, 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
(b) if the provision or part of it cannot effectively be read down, that provision or part of it will be deemed to be void and severable and the remaining provisions of this Agreement will not in any way be affected or impaired and will continue notwithstanding that illegality, invalidity or unenforceability.
This Agreement supersedes all prior negotiations, contracts, arrangements, understandings and agreements with respect to the subject matter. There are no representations, undertakings, warranties, covenants or agreements between the parties express or implied except as contained in this Agreement.
The parties, by their duly authorised representatives, have caused this Agreement to be executed as of the date first written above.
23. NOTIFICATIONS & COMMUNICATIONS
In addition to general account, billing and service communications, Conscious Music will, from time to time, issue email notifications relating to our services, including, but not limited to newsletters, announcements, promotional and seasonal offers, and surveys. By entering into this Agreement, you agree to receive email communications by inferred consent until such time as you decide to opt-out of such communications. You may opt out of our mailing list at any time by sending an email to [email protected] or by following ‘unsubscribe’ instructions contained within the communications
You will not be able to opt-out of:
• Critical Service Notifications;
• Renewal, Billing and Account Notifications;
• Scheduled Downtime Notifications; or
• any other communications deemed to be an essential part of our service to you.
CM reserves the right to (instead of email communication) publish notices with respect to the above matters or any changes to the terms of this Agreement via its Twitter account, available at: twitter.com/creativecollect
Please review our Privacy Statement for full details of our use of personal data.
24. DEFINITIONS AND INTERPRETATION
In this Agreement:
Additional Services means any creative or information technology service we may provide to you from time to time;
Intellectual Property means and includes all copyright, all rights in relation to inventions (including patents and patent Rights), all registered and unregistered trade marks (including service marks), all registered designs, all circuit layout rights, all performer’s rights and all other rights resulting from intellectual activity in the artistic, literary or scientific fields;
Loss or Damage means in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether present, unascertained, immediate, future or contingent and Losses or Damages has a corresponding meaning;
PPS Legislation means the Personal Properties Securities Act 2009 or if that Act does not exist for any reason, means any Act imposing or relating to the security of personal property and any regulation made pursuant to it and includes, where the context permits, any legislation amended by virtue of that Act;
PPS Register means any register established pursuant to PPS Legislation to record and maintain data with respect to personal property Security Interests;
Security Interests means the same as that term is defined in the PPS Legislation;
Services includes the Services specified on the estimate and/or invoice and where applicable includes any Additional Services;
Service Materials means all documents, material, data, information and concepts created as a result of or incidental to our provision of the Services;
References to:
(a) the singular includes plural and vice versa and any gender includes every gender;
(b) a person includes corporations, trusts, associations, partnerships, a Government Authority, and other legal entities, and where necessary, include successor bodies;
(c) writing include printing, typing, facsimile and other means of representing or reproducing words, figures, drawings or symbols in a visible and tangible form, in English;
(d) months mean calendar months;
(e) statutes include statutes amending, consolidating or replacing the statutes referred to and all regulations, orders-in-council, rules, by-laws and ordinances made under those statutes;
(f) sections of statutes or terms defined in statutes refer to corresponding sections or defined terms in amended, consolidated or replacement statutes;
(g) headings and the table of contents are used for convenience only and are to be disregarded in the interpretation of this Agreement;
(h) an agreement or document is to that agreement or document as amended, novated, supplemented or replaced from time to time; and
(i) a party includes that Party’s executors, administrators, substitutes, successors and permitted assigns.