Standard Terms of Service

Effective Jan 2019

 

The Digital Embassy Services Contract (“The Contract”)

 

1. Definitions and Interpretations

 

1.1 “We”, “Our”, “Us” refers to The Digital Embassy or The Digital Embassy Pty Ltd, ABN 89 083 227 276 and its subsidiaries, employees, officers, agents and affiliates. The Holder for The Digital Embassy is NETTE FAMILY TRUST ABN: 74 869 087 195

1.2 “Our website” refers to www.thedigitalembassy.co or www.thedigitalembassy.com.au. It also refers to www.nukeit.com.au and www.veodigitalmarketing.com.au

1.3 “You”, “Your” or “the Client” refers to you as the owner and/or operator of a website or enterprise to which our work, services including creative services (the “Creative Services”) or web services (the “Web Services”) are applied.

1.4 “Design”, or “the Design” refers to the features of shape, configuration, pattern or ornamentation which, when applied to a product, gives the product a unique appearance.

1.5 “Your website” or “web assets” refers to any website or web application owned and/or operated by you to which our products and services are applied.

1.6 “Collateral” refers to any artwork, or media designed or developed for you to work in collaboration with other promotional material to which our products and services are applied.

1.7 “Work”, “Services” or “your Work”, or “your Services” refers to any projects, jobs or tasks commissioned by you to which our products and services are applied.

1.8 “Account” or “your Account’ refers to any ‘Active’ records we hold pertaining to a Client’s billing information and product and/or service history. By closing an Client’s account it is deemed ‘Inactive’.

1.9 “Creative Services” may be applied to a new or existing graphic design and may include any of the following or a combination thereof:

(a) Art direction of projects including planning of strategy, concept and architecture;
(b) graphic design of templates for digital interfaces, web pages, multimedia, animation, advertising, signage and print media;
(c) revision and organisation of content;
(d) inclusion and manipulation of formats, images, typefaces, layout, style and
(e) printing or facilitating the printing of an artwork;
(f) project management of corporate identity and design consultancies.

1.10 “Marketing” and “Digital Marketing” may be applied to a new or existing website, intranet, extranet or online system and may include any of the following or a combination thereof:

(a) digital and traditional marketing consulting, auditing, research and strategic planning;
(b) search engine optimisation and positioning services;
(c) analytical analysis and reporting;
(d) Pay-Per-Click search engine and social media campaign management
(e) link sourcing;
(f) search engine marketing and content development services;
(g) social media marketing and content development services;
(h) recording and reporting on statistical data including but not limited to hits, page impressions and unique visitors to a website, intranet, extranet of online systems hosted by us;
(i) email marketing services.

1.11 “Web Development and Web Application Services” may be applied to a new or existing website, intranet, extranet or online system and may include any of the following or a combination thereof:

(a) project scoping and architecture;
(b) setting up of a content management system, modules and services;
(c) developing or customising of online system functionality;
(d) testing and deployment of systems;
(e) preparation and construction of templates;
(f) revision and organisation of digital content;
(g) inclusion and manipulation of formats, images, typefaces, layout, style, video and audio;
(h) overall presentation of web pages;
(i) technical support and training;
(j) hosting or facilitating the hosting of a website, intranet, extranet or online application;
(k) establishing applications for domain names and delegation of domain name;

1.12 “Support” or “OPTiMUM™ Support” may be applied to a new or existing website, intranet, extranet or web based application and may include any of the following or a combination thereof:

(a) Helpdesk support for system users and/or administrators;
(b) Maintenance of the web assets for the optimisation of their performance;
(c) Maintenance and updating of software as used by web assets;
(d) Monitoring of web assets for internet availability and/or broken links;
(e) Responses to software application issues reported by the client requiring investigation and rectification;
(f) Liaison between the client and The Digital Embassy vendors;
(g) Services provided under a service level agreement and/or support agreement
(h) Training services

1.13 The following are the standard terms and conditions (“Terms & Service”) that apply to our provision of Creative, Marketing, Support, Web Development and Web Application Services. The Terms of Service are subject to change without notice with the most current version superseding all previous versions supplied upon request.

1.14 Unless indicated in writing otherwise, the quotation provided by The Digital Embassy is based on estimates as to time, materials and costs, based on information reasonably known to us at that time of quoting. You expressly acknowledge that the quotation is an indication of our time, value and costs and is subject to change should further information be brought to light that influences our original assessment, or if you fail to comply with your obligations under these Terms of Service.

1.15 Your signing and returning the quotation to us within the quotation validation period will constitute your acceptance of these Terms of Service. For ease of reference, all correspondence between the parties to this contract should include the quotation reference version and date. You should take the time to read through the Terms of Service presented with any valid quotation.

 

2. Your obligations

 

2.1 You must:

(a) ensure that material you submit to us for inclusion in the website or any other developed collateral on your behalf is not unlawful or for an improper purpose, including information that is defamatory, misleading or deceptive, in breach of copyright or would otherwise expose us to any liability, legal proceedings or other sanction;
(b) ensure that you do not make, arrange or authorise the insertion of any reference to us or our website in any document (including promotional or merchandising material) or on any website other than our website without our prior written consent;
(c) promptly execute any document, make any arrangement or do anything that is reasonably requested by us in order to facilitate our provision of services, including but not limited to any necessary authorisation, permission or security passwords concerning access to codes, programs or other information in relation to your website held by any other party (eg. a third party internet service provider that hosts your website) and any edits to text or other content to be included on your website (particularly in relation to search engine optimisation and positioning services);
(d) abide by the applicable Codes of Practice (incorporating privacy and advertising codes) issued by the Internet Industry Association (to be found at www.iia.net.au), or other applicable bodies.

2.2 You represent and warrant that you are authorised to make available the material submitted by you for inclusion in any website (including content of any downloadable file) or collateral we are to design on your behalf and that you are acting under authority.

2.3 You shall not solicit for hire and shall not hire any current The Digital Embassy employee without our consent in writing via letter or email to [email protected]

2.4 You acknowledge that:

(a) at the point of formally engaging our Services you have read and agree to be bound by the terms of all legal notices posted on the website including Privacy PolicyGDPR StatementTerms of Use, Disclaimer and Copyright notices;
(b) all intellectual property including copyright that we produce on your behalf will remain the rightful property of The Digital Embassy Pty Ltd unless stated otherwise in writing;
(c) upon payment of the final invoice, we will assign to you a world-wide licence to use the end product of your work commissioned to us, with the exclusion of development files for the original purpose intended on condition that we will have the right to copy and adapt your work in order to provide services, to promote our services or for any other reason;
(d) any content provided by you will be a final version and any further time spent by us due to subsequent changes or substitution of content will be charged at the current hourly rate in addition to the quotation amount;
(e) we are not under any obligation to monitor or censor the material submitted by you, but we reserve the right to do so;
(f) we are not responsible for any content, information, or data you provide us for the purpose of providing Services on your behalf, or for any errors or omissions in any content, information or data provided by you or another party on behalf of you;
(g) systems or technological failure may impede or prevent provision of services;
(h) if you have not arranged for your website, intranet, extranet or application to be hosted, we shall deliver completed work we have produced by way of an appropriate data storage medium with the exclusion of development files;
(i) you are responsible for the security and integrity of your data; and transmission of data over the Internet can be subject to errors and delays;
(j) The Digital Embassy will take appropriate measures to ensure that any data stored within our environment (i.e. staging development) will be secure.
(k) while reasonable effort will be made to ensure your website, intranet, extranet or application is protected from unauthorised access or malicious attack, we do not accept liability for such an event, nor provide any warranty or a guarantee for this purpose under any circumstance including where a service level or support agreement is in place.
(l) we will make arrangements to store or back up a copy of your work after its completion and implementation. This will be carried out on the understanding and condition that the sole responsibility for the storage and back up of both commissioned work and files supplied to us remain with you at all times. An acceptance of our Terms of Service is an acceptance of these conditions.
(m) Where you have requested that your files be supplied, we reserve the right to charge for this service based on time taken to search, collate and supply files as required. We may choose at our discretion to cease storage of file copies once they have been provided without notice once the original contracted works have been completed, or the contract terminated.
(n) In the event you fail to claim your work after its completion and implementation, or after receiving notification from The Digital Embassy that your work has reached a progress stage that requires your input to complete, your work will be stored by us for period of 30 days. After 30 days we reserve the right to remove your work from our servers in the event;

I. our attempts to contact and receive a response by you have failed;

II. you fail to pay for the work as contractually agreed;

III. we have not been instructed by you in writing to make alternative storage arrangements
Removal of your files from our servers does not dissolve your obligations to pay us for the work at the time commissioned; and may prevent us from supplying the work originally performed at a later date. Additional fees may apply to retrieve your files, and/or resupply the original work in the event you request it at a later date.

(o) while The Digital Embassy Pty Ltd will take all reasonable measures necessary to protect your intellectual property you provide us such as, but not limited to data, equipment, marketing collateral, reference material, books and disks, your our property reside in our care and at our office premises at your own risk.

 

3. Variation or alteration to the provision of services

 

3.1 The Contract shall commence on the date of your acceptance of our quotation and shall conclude on the Completion Date if one is indicated. In the event that we are required to perform services that are not provided for in the agreed quotation, a revised quotation may be issued to accommodate additional requirements agreed between the parties and, once signed, or accepted in writting by you, the revised quotation will replace the quotation and may provide for a different Completion Date and a different quotation Amount than those outlined in the initial proposition.

3.2 A variation is understood by The Digital Embassy Pty Ltd to be a deviation in the original model outlined in the brief document or project scope, resulting in a new outcome. Any variations may result with The Digital Embassy Pty Ltd re-quoting for the remaining work. The Digital Embassy Pty Ltd will present any additional charges that may arise to the Client for approval prior to proceeding.

3.3 An alteration is understood by The Digital Embassy Pty Ltd to be an amendment to the original model, but the outcome remains the same. If minor alterations are made before work has been started, additional charges may not apply. If alterations result in re-work once work has commenced then The Digital Embassy Pty Ltd reserves the right to charge for this time. The Digital Embassy Pty Ltd will present any additional charges that may arise to the project management team for approval before proceeding.

 

4. Suspension or termination of the provision of services

 

4.1 Without limiting our other rights, we may immediately suspend or temporarily remove part or all of your website, web application and support service or terminate the Contract if:

(a) you fail to pay any fees or charges due to us by the due date;
(b) you cancel hosting services provided by us, or impair our ability to provide sufficient support;
(c) you breach any part of the Contract and fail to rectify that breach within seven (7) days of our giving notice requiring rectification;
(d) any material supplied by you is false or misleading;
(e) you enter into bankruptcy, liquidation, administration, receivership, a composition of arrangement with your creditors, or appoint a receiver or manager over all or any part of your assets or become or are deemed to become insolvent; or
(f) you die, or if you are in a partnership and are dissolved or an application to dissolve is filed, or if you are a company, are wound up or an application for winding up is filed.

4.2 Both parties acknowledge and agree that termination of the Contract pursuant to this clause does not relieve either party of its obligations and liabilities pursuant to the Contract. The Digital Embassy reserves the right to enforce such obligations and liabilities in such an event. In the event that you terminate the Contract prior to the Completion Date, you shall remain liable to pay any invoice we issue for work completed prior to termination, in addition to any such claim for payment we submit on a quantum meruit basis for the cost of preparation, implementation and delivery of services provisioned on your behalf to fulfill the contractual obligations.

(a) Unless agreed in writing otherwise, you may choose to temporary postpone its services with The Digital Embassy for up to 1 month, per project, by providing 14 days written notice sent to [email protected] You should advise of the date you wish to postpone and restart your service.

(b) If at no fault of The Digital Embassy should you reduce or fail to complete the original and agreed scope of works commissioned to The Digital Embassy without our consent, and within a reasonable time frame (1 month or less), unless agreed otherwise in writing we are entitled to claim payment from you on a quantum meruit basis for the cost of preparation, implementation and delivery of services provisioned on your behalf to fulfill the contractual obligations.

4.3 The Digital Embassy may end its agreement with you and cease providing Services (other than Services for a fixed contract period) for any reason, on 30 days written notice to you; with respect to Services for a fixed contract period, the notice will not expire before the end of the fixed contract period.

4.4 You may close your account and/or cancel your service with The Digital Embassy by providing 30 days notice to The Digital Embassy in accordance with the methods set out below.

  • by letter on company letterhead (if applicable) and signed by the Client or an authorised person;
  • by email to [email protected]om.au

The closure notice will take effect on the next billing date following the date of your notice. The Client will be required to pay charges for Services supplied up to the date on which the closure notice takes effect.

4.5 In the event that notification has not been received 30 days prior, you will be required to pay all incurred costs up until cancellation is finalised by The Digital Embassy Pty Ltd.

4.6 If your account is closed you must pay all outstanding charges for work performed to date within 7 days of closer notification. The Digital Embassy Pty Ltd may delete all Customer Data from any storage media.

4.7 Where The Digital Embassy Pty Ltd has committed to a Support contract, early termination charges apply of 20% of the residual contract value.

4.8 The Digital Embassy is under no obligation to provide you with a copy of your Data if we have suspended or terminated your access to the Service. If we provide you with a copy of your Data, The Digital Embassy is entitled to charge a fee for service.

4.9 The Digital Embassy Pty Ltd may from time to time without notice suspend the Service or disconnect or deny you access to the Service:

  • during any technical failure, modification or maintenance involved in the Service provided that we will use reasonable endeavours to procure the resumption of the Services as soon as reasonably practicable; or
  • if you fail to comply with any provision in this agreement (including failure to pay charges due), or do, or allow to be done, anything which in our opinion may have the effect of jeopardising the operation of the Service, until the breach (if capable of remedy) is remedied.

4.10 Notwithstanding any suspension of any Service under this clause you shall remain liable for all charges due throughout the period of suspension.

4.11 If your account has been suspended or terminated over a breach of this Contract by you, reactivation of your account will be completely at The Digital Embassy’s discretion. If The Digital Embassy agree to reactivate your account, The Digital Embassy will require:

  • payment in full of all outstanding amounts; and
  • payment of a reactivation fee.

4.12 The Digital Embassy reserves the right to refuse to supply services to a potential customer who has previously had its account with The Digital Embassy terminated for breach. In this clause, “potential customer” includes:

  • (if the potential customer is a corporation) it’s Related Entity or Related Party (as those phrases are defined in the Corporations Law); and
  • (if the potential customer is an individual) any corporation in which the potential customer was at the relevant time an officer or shareholder, or a Related Party of a shareholder.

4.13 The Digital Embassy may without notice to you remove, amend or alter your data upon being made aware of:

  • any court order, direction, judgment, determination or other finding of a court or other competent body,
    • that the data is illegal, defamatory, offensive or in breach of a third party’s rights.
    • that the data and/or software may compromise our environment effecting performance and security.

 

5. Disputes

 

A condition of providing goods and services is that if there is a problem the Client must first let us know, and provide adequate and reasonable opportunity for us to address any concerns. Disputes related to services provided should be directed to The Digital Embassy’s Service Delivery Manager in writing via letter or email to [email protected]m.au

 

6. Media

 

Upon approval of this contract, unless agreed in writing otherwise The Digital Embassy Pty Ltd may wish to promote its association with the Client and this consultancy as outlined in the contract. Clients that wish not be promoted by The Digital Embassy Pty Ltd, or wish to view all media references prior to publishing should advise their The Digital Embassy Pty Ltd representative at the time of signing this contact. Alternatively requests related to media should be directed to The Digital Embassy’s Service Delivery Manager in writing via letter or email to [email protected]m.au

 

7. Fees and billing

 

7.1 The Digital Embassy’s various fees and charges are itemised in all our quotes and proposals and are subject to change and goods and services tax (GST). Minimum charges do apply for ad-hoc services performed outside of a predetermined agreement with the client. Typical hourly rates are indicated below:

  • Ad-hoc rate per hour: Ranges from $120.00 (data entry and migration) to $270.00 (strategic consulting) exclusive of GST
  • Pre-paid hourly block bundles from 10 to 40 hours range from $80.00 to $250.00 per hour exclusive of GST
  • Hourly rates for larger projects start from $180.00 exclusive of GST (volume dependent)
  • Hourly rates for specialized consulting and technical services may vary depending on type and volume.

7.2 In most cases projects will be broken down into milestone deliverables which will be invoiced to the client in advance for each stage of the consultancy, and prior to the work commencing unless otherwise agreed in writing. Payments terms of invoices will be payable within seven (7) days of the date of issued. Thirty (30) day terms may be available for repeat clients with good account history which maintain this status. The Digital Embassy reserves the right to revoke 30 days terms and charge a deposit payment on a project if required. Acceptable methods of payment are Direct Deposit (EFT) or Cheque.

7.3 If we do not receive payment by the due date, we reserve the right to:

(a) immediately suspend or cease provision of scheduled services;
(b) remove any reference or prevent access to work or websites already completed on your behalf;
(c) charge late fees on any overdue amount to the value of $50 per 30 days or part thereof that the account remains outstanding; and
(d) charge any costs of collecting the overdue amount, including but not limited to collection of agency fees and legal fees.

7.4 In the event that a revised quotation is issued, we reserve the right to include in the revised quotation amount an hourly rate for any additional services not provided for in the quotation and/or any management time incurred, including renegotiation and preparation of the revised quotation.

7.5 You will pay all taxes, duties and other government charges payable in connection with the Contract whether applying as at the date of the Contract or in the future including without limitation goods and services tax (GST), other value added tax, sales tax, stamp duty and turnover tax, but excluding taxes, duties and government charges based on our income.

7.6 If you request priority turnaround of your work outside The Digital Embassy’s normal scheduled workflow during business hours a 50% loading to our retail hourly rate for the service required may apply for the work requested during this period. These fees will be brought to your attention for acceptance prior to the commencement of these services. Work requested and approved by you and required after business hours will incur additional charges after hours (see section 16).

7.7 You consent to us obtaining a credit reporting agency report containing personal information about you (as well as information concerning commercial creditworthiness and activities) for the purpose of assessment by us of an application for credit (whether commercial or personal) or for the purpose of the collection of payments which are overdue.

7.8 No refunds will be given for unused portions of payments in advance unless the account has been terminated due to The Digital Embassy’s breach of these terms and conditions. If you terminate a rolling fixed period contract before the end of its term, you will be charged for the balance of the contract term.

7.9 Unless otherwise stated in writing by The Digital Embassy travel costs and time is excluded from the contract fee. In the event that we arrange the travel bookings a 15% admin fee will apply. The Digital Embassy is authorised to incur, with prior notice to and acceptance from the Client, ‘reasonable’ travel expenses in performing the Client’s instructions. The Client agrees to reimburse these in addition to the contract fee. ‘Reasonable’ travel expenses are those generally applied within international corporations for management-level staff. They vary to reflect the different standards applied to business travel in various parts of the world. For illustrative purposes, they include, economy (or ‘coach’) class flights, accommodation and incidental costs within an hotel suitable for international business affairs, all meals whilst acting on behalf of the Client within an hotel’s restaurant or an equivalent grade of individual premises, rail travel (1st class in some countries but not the Australia), taxis and car-hire costs as appropriate, entertainment costs for third-party contacts made on behalf of the Client commensurate with obtaining the maximum value-for-money from the contact for the Client. Where appropriate to the circumstances, we reserve the right to vary the class of travel to meet the business need. All expenses are payable for the total activity time including travel to and from the Client or travel to and from third parties on behalf of the Client.

 

8. Limitation of liability and indemnity

 

8.1 To the extent allowable under the Competition and Consumer Act 2010 or any other applicable law, we:

(a) exclude all conditions, guarantees and warranties implied into the Contract;
(b) exclude consequential, special or indirect loss or damage (included but not limited to loss of opportunity, loss of revenue and loss of profits);
(c) limit our liability for breach of any condition, guarantee or warranty that we can exclude to the greater of (at our option):
(1) resupplying the services; or
(2) paying the cost of having the services resupplied; and
(d) limit our liability in respect of any other claim in connection with the Contract whether the claim is based in contract, tort (including negligence) or statute to the amount paid to us by you under the Contract.

8.2 We will not be liable under the Contract to the extent that liability is caused by:

(a) any breach of your obligations under the Contract; or
(b) any delay in performance or breach of the Contract which arises as a result of any matter beyond our control including but not limited to viruses, other defects or failure of the server hosting our website or any website, web application or asset we design on your behalf.

8.3 You indemnify The Digital Embassy Pty Ltd and its officers, employees and agents (“those indemnified”) against any direct or consequential liabilities, losses, damages, expenses and costs (including legal expenses on a solicitor and own client basis) incurred or suffered by any of those indemnified as a result of any claim or proceedings brought by a third party against those indemnified in connection with any material generated and submitted by you in connection with services we provide. It is a requirement that you hold current and suitable Legal Indemnity insurance to cover any claim.

8.4 With the acceptance of this consultancy the client indemnifies The Digital Embassy Pty Ltd against any cost or loses that may be incurred by us, due to software, code or system applications used (including third party applications) at the direction of the Client for the purpose of fulfilling client requirements and this contract. It is a requirement that you hold current and suitable insurance to cover any claim.

8.5 With the acceptance of this consultancy the client indemnifies The Digital Embassy Pty Ltd against any cost or loses that may be incurred by us, due to the Clients website or web application being a target of unauthorized access or maliciously attack. It is a requirement that you hold current and suitable insurance to cover any claim.

8.6 Our services do not warrant or guarantee that the client will never have a problem with their website or data nor is it a guarantee that the security of the Client’s website cannot, or will never be compromised. The Digital Embassy will take reasonable measures to perform website and application hardening on behalf of the client and accept liability for the supply of the Services but only to the extent provided below.

We do not warrant that:

  • the Services provided under this agreement will be uninterrupted or error free;
  • the Services will meet your requirements, other than as expressly set out in this agreement; or
  • the Services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of The Digital Embassy.

8.7 Where the Client is a Consumer (as that word is defined by the Competition and Consumer Act ), we accept liability where: the Service is not supplied with due care and skill; any material supplied in connection with the Service is not reasonably fit for the purpose for which it was supplied; and we are otherwise required to do so by the Competition and Consumer Act.

8.8 To the extent that the Service is not of a kind ordinarily acquired for personal, domestic or household use, our liability is limited to, at our option, to the resupply of the services again; or payment of the cost of having the services supplied again.

8.9 Except as expressly provided to the contrary in this agreement, we exclude all liability for indirect and consequential loss or damage of any kind, loss or corruption of data, loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this agreement and/or its subject matter.

8.10 Other than liability accepted by us in this agreement, our total aggregate liability for loss or damage of any kind not excluded by this agreement, however caused, in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with this Agreement, shall be limited to the total amount received by us from you in connection with the work or Service(s) giving rise to such liability.

 

9. General

 

9.1 No delay or failure by The Digital Embassy Pty Ltd, or the Client, to enforce any provision of the Contract will be deemed a waiver or create a precedent or will prejudice our rights.

9.2 A notice must be sent by e-mail or prepaid post to your or our last known address.

9.3 These Terms of Service, the agreed (revised) Project Specification and the (revised) Quotation comprise the entire Contract and supersede all prior understandings, agreements or representations between the parties that concern provision of the services.

9.4 The laws of South Australia govern the Contract. You submit to the non-exclusive jurisdiction of the South Australian Courts.

9.5 If any term of the Contract is or may become for any reason invalid or unenforceable at law, the validity and enforceability of the remainder will not be affected.

 

10. Guarantee

 

Unless otherwise stated in writing by us The Digital Embassy Pty Ltd will guarantee that its services upon handover and delivery to the client to be reasonably fit for purpose for which they were supplied and performed with due care and skill. Any concerns with the services provided by The Digital Embassy must be brought to our attention within 14 calendar days from delivery.

For Clients who contract The Digital Embassy Pty Ltd to provide Content Management System solution for their website, the Client upon handover will be given Content Management System (CMS) access to administer and control their website where requested. In providing access, unless stated otherwise in writing the Client will have control of their website content, features and setting, and therefore be able to modify, change or delete work performed by The Digital Embassy Pty Ltd without notice or permission of The Digital Embassy Pty Ltd.  The Client accepts that The Digital Embassy Pty Ltd will not be held responsible for the website, or extend the Client a guarantee, or provide warranty once the handover and administrative access has been provided to them.

Unless otherwise stated in writing by us The Digital Embassy does not warrant and provide a guarantee that services it provides will remain fit for purpose after they have been supplied, and after 14 calendar days has lapsed. We do however reserve the right to repair or rectify any work performed by The Digital Embassy engineers at our own cost.

Exclusions to our guarantee will apply were The Digital Embassy has specified in writing an agreed period of time for which our services are guaranteed such as those covered under a Service Level Agreement or OPTiMUM™ Support Agreement.

Exclusions to the guarantee may occur if originally supplied work or services are believed at The Digital Embassy’s discretion to be accessed and modified, hosted, edited or tampered with by another party outside the control of The Digital Embassy Pty Ltd. The Client accepts that this action may breech the conditions of The Digital Embassy guarantee including all service level and support agreements offered to be determined at The Digital Embassy’s discretion.

The Digital Embassy Pty Ltd does not provide a guarantee or warranty on any pre-existing applications not designed, built and/or hosted by The Digital Embassy. This will include errors or faults that may arise within the pre-existing application both during and after The Digital Embassy’s involvement. The client accepts that all work performed by The Digital Embassy under these circumstances cannot be guaranteed, or have a warranty extended due to the nature of the work performed and the environment in which the result of the work resides. As a result of The Digital Embassy implementing work on the Clients behalf, the Client accepts full responsibility for the outcome of this work including its potential impact on any existing systems, supporting architecture and infrastructure.

The Digital Embassy Pty Ltd does not provide a guarantee or warranty on any errors, unwanted changes and faults that could not have been reasonably foreseen by us prior to and throughout the consultancy. These can include, but are not limited to the introduction of future internet browsers; changes to search engines that affect the outcome of services; changes to third party tools that affect the outcome of services; changes to accessibility standards; changes to specification; upgrades to hardware and software as part of the provision of web hosting facilities; integration or update of software and technologies and changes to content that may exceed original design parameters.

While every reasonable effort will be made to ensure the management, production and the delivery process of your services runs smoothly and is error free The Digital Embassy Pty Ltd does not provide warranty or a guarantee for this purpose while conducting these services and in conjunction with third party suppliers.

Remediation work covered under our guarantee is carried out during normal operating business hours only. Where possible The Digital Embassy will attempt to carry out all remediation work covered under our guarantee immediately, however depending on the size and nature of the work required, a turnaround of 1 to 5 business working days should be expected. Where remediation work requires a significant amount of time, The Digital Embassy will consult with the client to develop a schedule that is mutually agreeable.

 

11. Contractors

 

Depending on the circumstances we reserve the right to use outsource contractors where required to assist in the production and delivery services. The Digital Embassy Pty Ltd will be responsible for the management of contractors that are appointed by our company to perform works on behalf of our clients. Clients that do not wish for The Digital Embassy to use outsource contractors must advise us in writing prior to accepting these terms and conditions and commencing work with The Digital Embassy Pty Ltd.

 

12. Intellectual property

 

12.1 The Client understands that even though they have commissioned The Digital Embassy Pty Ltd to design and develop work on their behalf, they are issued with a license only for the use, or implementation of that work for the original purpose intended. There is no additional cost for this other than what is outlined in the contract.

12.2 Excluded from license is access to development files, data or code, or third party software and hardware used for the project’s development. If a Client wishes to reuse this Intellectual Property (excluding resale), or gain access to any, or all development files created to produce the project, additional charges will apply based on 25% of the full relationship value following the add back of any discounts or concessional rates. The full relationship value is calculated on the full standard hourly rate which applies to the relevant services ranging from $230 to $270 excluding GST. Access to any, or all development files created will only be provided once full payment to The Digital Embassy has been received.

12.3 By taking possession of intellectual property including source code and/or development files the Client acknowledges that:

(a) The effort to supply of intellectual property is not included as part of the scope of initial estimate of works

(b) The Digital Embassy Pty Ltd is entitled to charge fees associated with supplying Intellectual Property to the Client in an appropriate form, as agreed by the parties

(c) The Digital Embassy Pty Ltd’s obligations under the agreement have been fulfilled

(d) The Client accepts full responsibility over the control, operation and integrity of the work developed by The Digital Embassy Pty Ltd for the purposes of fulfilling the contract

(e) While The Digital Embassy Pty Ltd has supplied the source code for use for its intended purpose the rights to the source code will remain vested in the respective agreements that these have provided

(f) The Digital Embassy Pty Ltd may at its discretion make arrangements to store or back up a copy of the work after its completion and implementation. This will be carried out on the understanding and condition that the sole responsibility for the storage and back up of both commissioned work and files remain with the Client at all times.

(g) This license does not permit the resale of work produced as part of a project, nor does it permit for our copyright and any intellectual property to be reproduced, copied, disassembled, decompiled, reverse engineered or modified in any way without our written permission.

12.4 The Digital Embassy Pty Ltd reserves the right to use in part or full ‘license or royalty free’ third party code of software in the development of the project and that the unlimited or royalty free license rights and terms would be extended to include the Client. The Digital Embassy Pty Ltd warrants that it has all the necessary rights to use any third party applications or tools which it intends to use in the provision of the work.

12.5 All content provided by the Client to be used to carry out this consultancy will be published at the responsibility of the Client. With the acceptance of our services the Client indemnifies The Digital Embassy Pty Ltd of any legal action taken in regards to the use of any unauthorised content.

12.6 Nothing in the Contract is intended to transfer ownership of the Client’s or The Digital Embassy Pty Ltd’s background intellectual property.

 

13. Project delays

 

Should a project’s progress be delayed or span over a longer duration than specified outside The Digital Embassy Pty Ltd’s control, The Digital Embassy Pty Ltd reserves the right for payment of work ‘done to date’ unless otherwise stated as part of a contractual agreement. By accepting this proposal the client agrees that it would be acceptable for The Digital Embassy Pty Ltd to request payment for any work completed at that time and after a 14 day period without activity, or alternatively with continued development during the consultancy. These time lines are negotiable before project acceptance.

 

14. Scope deduction or cancellation

 

If at no fault of The Digital Embassy Pty Ltd should the Client reduce or fail to complete the original and agreed scope of works commissioned to The Digital Embassy Pty Ltd without our consent, and within a reasonable time frame (1 month or less), unless agreed otherwise in writing The Digital Embassy Pty Ltd is entitled to claim payment from the Client on a quantum meruit basis for the cost of preparation, implementation and delivery of services provisioned on the Clients behalf to fulfil the contractual obligations.

 

15. Independent security audits

 

Where security is critical, The Digital Embassy Pty Ltd recommends the use of an Independent Security Auditor to conduct independent security audit assessments periodically on the Clients website and related infrastructure. The Digital Embassy Pty Ltd will cooperate and work with the security auditor during this audit process; however this work is considered to be out of scope of the service level and support agreements that maybe in place. The Digital Embassy Pty Ltd reserves the right to charge the Client additional fees for work performed and time used as part of an independent security audit.

 

16. Software maintenance

 

Dynamic software dependant websites that do not have up to date software and programed maintenance support with The Digital Embassy Pty Ltd are considered a high risk. Depending on the level of risk as determined by The Digital Embassy we reserve the right to suspend, or terminate further The Digital Embassy Pty Ltd services, hosting and support, effective immediately and without notice in the event that continuing to provide these services poses an unacceptable risk to The Digital Embassy Pty Ltd and other clients. The Client accepts that all work performed on their website that has no formal software and programmed maintenance support will be performed solely at the Clients risk. The Digital Embassy Pty Ltd accepts no liability for websites that have no formal software and programed maintenance support as provided by The Digital Embassy Pty Ltd.

 

17. Security and system vulnerabilities

 

During the clients OPTiMUM™ Support Agreement term, The Digital Embassy Pty Ltd will research and apply what we believe to be the most suitable system patches and upgrades available as provided by their respective third party vendors (i.e. DotNetNuke Corporation, Kentico, WordPress, Sitecore etc). These system patches and upgrades applied by The Digital Embassy are intended to fix temporarily or permanently, or reduce the severity of system vulnerabilities that have been identified by us. Where patches and updates incur a charge by a third party vendor The Digital Embassy Pty Ltd reserves the right to pass on this charge to the Client at cost.

Under an OPTiMUM™ Support or Service Level Agreement The Digital Embassy does not warrant, or provide guarantees that system updates and patches applied will prevent malicious attacks from occurring or compromising the system of which those updates and/or patches have being applied. Should an unexpected result be experienced through the application of system updates or patches The Digital Embassy Pty Ltd has implemented we will work with the Client to rectify all issues and respond with an appropriate level of severity (1-4) while the OPTiMUM™ Support Agreement or Service Level Agreement remains valid. Depending on the nature of the work required The Digital Embassy reserves the right to charge additional fees for services not covered by the scope of the agreement.

 

18. Third party services

 

Except as expressly provided to the contrary all third party services implemented within the Clients website or web application covered by a The Digital Embassy service level and support agreement will be the Client’s responsibility to make available in the appropriate and required operational state. These services can include, but are not limited to SSL Security Certificates, Hosting, Domain Names, Third Party Applications, Email and Payment Gateway services that are required to be renewed periodically and may not be within reasonable control of The Digital Embassy Pty Ltd.

Should The Digital Embassy Pty Ltd manage these services on the Client’s behalf as agreed in writing, the Client must ensure that these services are renewed before their date of expiry and paid in full within the payment terms of The Digital Embassy Pty Ltd in order to avoid service faults or disruptions. The Digital Embassy Pty Ltd does not accept liability for service faults, delays or disruptions due to issues related to third party providers.

 

19. Services disruptions

 

The Digital Embassy Pty Ltd understands the importance of having your website and online services accessible and operating 24/7. Despite our best efforts to ensure your services remains operating and accessible at all times we do not warrant or provide a guarantee that this will be achieved under a service level and support agreement or at any other time. Please refer to sections ’After Hours Support’ in relation to accessing The Digital Embassy’s after hours support response services.

 

20. Confidentiality

 

The Digital Embassy Pty Ltd, employees and sub-contractors are open to signing confidentiality agreements if required upon request. These agreements will need to be supplied by the client. The Digital Embassy Pty Ltd has put in place reasonable measures to protect Client confidential information including employee agreements and internal process policies. The Client accepts that confidential information is provided to The Digital Embassy Pty Ltd at their own risk. It is the Client’s obligation to advise The Digital Embassy Pty Ltd if any confidential information provided is of a highly sensitive nature so to allow us to adequately prepare for this circumstance, or accept and reject this information.

 

21. Site credits

 

On completion of a web services consultancy, The Digital Embassy Pty Ltd may choose at the commencement and periodically to add to the footer of your website a minor statement (e.g. Website by The Digital Embassy) with a hyperlink to its own website(s). While there may be benefits to both the Client and The Digital Embassy Pty Ltd in terms of search engine ranking, Clients that prefer not to have this site credit and link should advise their The Digital Embassy Pty Ltd representative, prior to approving the consultancy. Periodic maintenance of The Digital Embassy’s site credit may be conducted by The Digital Embassy without charge to the client, or notice that it has been carried out.

 

22. After hours support

 

The Digital Embassy does not operate as a 24/7 enterprise and therefore does not extend any guaranteed turnaround response times outside of normal business hours. We do however extend a commitment to Clients that have an OPTiMUM™ Support Agreement to ensure the best possible response is made subject to the availability of staff outside normal business hours (8:30 am to 5:00 pm, Monday to Friday excluding SA public holidays).
Clients on an OPTiMUM™ Support Agreement will be offered 24/7 remediation services which will be charged in addition to the fixed annual fee at the standard after hours support rate. The minimum time chargeable for each after-hours service is three hours unless the service adjoins normal business hours.

Work conducted under warranty or guarantee conditions must be performed during normal business hours only (8.30 am to 5.00 pm, Mon- Fri). All emergency and afterhours support services will be charged at after-hours service rates.

The Digital Embassy staff must be afforded appropriate meal breaks and minimum 10 hour break for every 12 hours worked. Wherever practical The Digital Embassy will brief and provide rotating shifts of its staff for ongoing support issues. The Digital Embassy will endeavour to have staff available for rotating shifts however provides no guarantee of availability.

The Digital Embassy staff must be accompanied at all times to ensure their safety and according to our Occupational Health and Safety requirements. If a Client staff are not able to attend, The Digital Embassy may be able to provide a second staff member after-hours at the Clients cost to satisfy safety OH&S requirements, subject to availability. The Digital Embassy reserves the right to refuse attendance of a lone staff member.

 

23. Website accessibility & browser compatibility standards

 

The Digital Embassy’s commitment is to meet all Level A requirements of the W3C Web Content Accessibility Guidelines 2.0 (WCAG 2.0) for website development projects unless stated otherwise. The Digital Embassy also aim to meet as many Level AA and Level AAA requirements of the WCAG 2.0 as possible.

At the time of approval of the Project Management Plan your website will be built to support desktop browsers either current release or release – 1 browser configurations at time of approval of this Plan, of Edge, Firefox, Chrome, Safari. Only the most current version of Internet Explorer available will be supported. For mobile Devices – Apple iPhone/iPad – native Safari on current and previous version of iOS, Android (Android browser is relevant to the phone operating system) – native browser and Chrome are supported.

We will support all Australian nominated releases, this means we will support the device as it is launched in Australia. We will ensure graceful degradation takes place where applicable to ensure that users who do not have the most up-to-date browsers will not face significant impediments to using the website. Incompatibilities with other browsers or browser versions can be addressed at additional charges.

 

24. Purchase of print management services

 

Printing utilising  The Digital Embassy Print Management service is based on using independent print suppliers to The Digital Embassy that have claimed to support various levels of environmental best practice in their own right. Supporting evidence of this practice can be supplied by the print supplier prior to commencing any services upon request. The Digital Embassy does not accept any liability, claims or provide any guarantee in this regard and supports its own environmental policy in its commitment to good environmental business practice. The Digital Embassy’s environmental policy and commitment can be found on The Digital Embassy website: http://www.thedigitalembassy.co/Company.aspx

Press checks are required to be pre-booked and approved. While the majority of press checks will be conducted during normal business hours, after hours press checks where required may incur additional chargers. The client will be solely responsible for all errors or emissions once our digital and/or printed proofs supplied have been approved by them. While every effort is made to ensure the production and delivery process of your printing runs smoothly and is error free, The Digital Embassy does not provide warranty or a guarantee for this purpose.

Clients that wish to manage their own printing of any artwork we create on their behalf will be solely responsible for all errors, emissions or reproduction issues once digital and/or printed proofs supplied and approved by them.

 

25. Purchase of resold products and services

 

The Digital Embassy is a registered partner and/or reseller for the following entities:

  • Interspire Pty Ltd, providing services resold as Mail:Control
  • Freshview Pty Ltd (“Campaign Monitor”), providing services resold as Mail:Control Plus

As a reseller and/or partner of the above named entities we offer clients the opportunity to purchase products and services provided by said entities including those provided under The Digital Embassy’s own brands. All Clients that purchase and accept these products and services are bound by the terms and conditions outlined by these entities.

The Client is required to read and accept the related terms and conditions of use before ordering, renewing and using the associated The Digital Embassy product or service. By ordering or renewing a The Digital Embassy product or services the Client agrees to the associated terms and conditions of use of the named entity. A copy of these terms can be found at the following locations:

  • Mail:Control: https://www.interspire.com/licensing.php
  • Mail:Control Plus: http://www.campaignmonitor.com/terms/

The Digital Embassy does not accept liability, or provide warranty or a guarantee of hosting, maintenance, software and all other related products and services that it resells to Clients. All applicable liability, warranty or guarantee lies directly with the listed entities, their suppliers and their subsidiaries as outlined in their associated terms and conditions. The Digital Embassy reserves the right to provide, and reasonably charge for support services to the Client in addition to any maintenance and support which these entities contractually provides as part of their product and service offering.

 

26. Purchase of ‘resold’ hosting products and services

 

The Digital Embassy may offer Clients the opportunity to purchase Third Party Provider products and services such as shared and dedicated hosting solutions and domain name registration and management. All Clients who purchase and accept these products and services are bound by Third Party Providers Standard Terms and Conditions. The Client is required to read and accept these Terms and Conditions before ordering, renewing and using these services. By accepting these services (including renewals of services) the Client agrees to the Third Party Providers Terms and Conditions. A copy of these terms can be provided upon request.

The Digital Embassy does not accept liability, or provide warranty or a guarantee of hosting, domain name and all other related services that it’s resells to Clients other than those that The Digital Embassy host directly (See Purchase of The Digital Embassy shared hosting services). All applicable liability, warranty or guarantee lies directly with the Provider, its suppliers and its subsidiaries as outlined in their Terms and Conditions.

The Digital Embassy reserves the right to provide hosting support services to the Client in addition to the support which the Provider is contractually delivering to as part of its product and service offering.

 

27. Purchase of shared and dedicated hosting services

 

The Digital Embassy provides both shared and dedicated hosting services which are not a resold offering to the general public. They are instead specifically tailored to support solutions designed and configured by The Digital Embassy to ensure the best possible performance. The Digital Embassy limits the level of access to its managed shared and dedicated hosting services to ensure the best possible performance and security of its server environment is maintained. Access features such as File Transfer Protocol (FTP) and installation of frameworks in all circumstances is either prevented or tightly controlled.

Where The Digital Embassy agrees to provide FTP access, it is provided on the condition that the Client accepts full responsibility for the management, protection and integrity of files and data (including web applications) which is accessible, and transferable through this channel while FTP access is provisioned. FTP access may incur additional fees to be individually quoted upon request at [email protected]. If accepted, the Client will be required to pay these fees in advance before FTP access is provided.

The Digital Embassy shared hosting services resides within a fully virtualised hosting environment managed by our Providers. Clients that purchase and accept these services are bound by The Digital Embassy’s Standard Web Hosting Terms and Conditions. The Client is required to read and accept The Digital Embassy’s Standard Web Hosting Terms and Conditions before ordering, renewing and using these services. By accepting these services (including renewals of services) the Client agrees to The Digital Embassy’s Standard Web Hosting Terms and Conditions.

 

28. Purchase of content delivery network (cdn) services

 

Where Content Delivery Network services are provided the client acknowledges that these services are provided by a third party service provider CloudFlare Incorporated for the benefit of The Digital Embassy clients. By authorising these services the clients is bound by CloudFlare’s terms of use. https://www.cloudflare.com/terms.

 

29. Digital marketing services

 

29.1 Our digital marketing services provided under a monthly program have a minimum contract period of 3 months (unless specified otherwise in writing). During this time all monthly fees as proposed in the contract will remain fixed unless additional services are requested by you.

29.2 Post the initial 3 month period you may choose to continue your digital marketing services on a monthly basis, opt out, or adjust the contract anytime by providing 30 days written notice sent to [email protected]. We reserve the right to adjust its monthly fees and services after the initial 3 month period and give you 30 days written notice to this effect.

29.3 With the exception of the initial 3-month minimum period, you may choose to temporarily postpone your digital marketing monthly services with us for 1 month by providing 14 days written notice sent to [email protected] . In doing this, you must advise us of the date you wish to postpone and restart their service.

29.4 If at no fault of The Digital Embassy™ you reduce, or fail to complete the agreed scope of works commissioned to us without our consent, and without reasonable notice (1 month or less), we will request and claim payment from you on a quantum meruit basis for the cost of preparation, implementation and delivery of services provisioned on the clients behalf to fulfill the contractual obligations.

29.5 We will take all reasonable measures to ensure we satisfy and meet your digital marketing expectations, however, we do not extend a warranty or guarantee to this effect.

 

30. Block hour bundles and retainers

 

The Digital Embassy provide both ad hoc (Block Hours) and reoccurring services and support (Retainer) to our clients. Bundles and Retainers are sold in blocks of hours limited to the delivery of a set of service types as specified below:

(a) Consulting & Analysis – This includes services: Strategic & Project Consulting, Planning, Analysis, User & Technical Training

(b) Service Implementation – This includes services: Development, Maintenance, Support, Graphic & Digital Design, Digital Marketing implementation, Copywriting

(c) Data Entry & Migration – This includes services: Data entry and migration, content population (excludes data manipulation and modification)

The Digital Embassy may offer custom configured Bundles and Retainers, combining a mix of services types which will be made available to the Client for their use as described in the agreement. Custom configured Bundles and Retainers are bound by the same terms and condition as regular retainers.

Both Block Hour Bundles and Retainers incorporate a provision of up to 10% of time purchased which may be applied against the bundle or retainer for a project coordination resource. This provision is to cover the coordination of services resources requested by the Client. Should more coordination time be needed, the Client will be notified by The Digital Embassy for approval, prior to use.

 

Block Hours Bundles

Block Hour Bundles can be purchased ad-hoc at a discounted rate in advance and must be redeemed within 6 months. Bundles can be purchased as required and combined with other services where permitted.

 

Retainers

Retainers are purchased on a month by month basis with a minimum 3 months and can be cancelled with 30 days’ notice thereafter by email [email protected]. At the end of the minimum 3 months term, retainers will be subject to review.

Clients using retainers can roll over up to 30% of any unused hours purchased to the following month while their retainer remains valid. Where requested by the Client, a valid Retainer many be topped up in hours using an ad-hoc Block Hour bundles.

Clients on valid retainers are given scheduling priority where possible over ad-hoc services.

 

31. Web Services

 

The Digital Embassy may choose to utilise web services to deliver functionality or enhance the performance of our solutions, in the interest of providing a better or more cost effective solution. These web services may: be provided under licence, and or connected to a hosted subscription model, included in the contract for services you have entered into with us. The rights of these services resides with The Digital Embassy. In the event that you choose to transfer all or some of your services away from The Digital Embassy your solution may be affected. If you wish to continue to use these web services a revised service fee for their ongoing use will apply.

 

 

License Agreement – Mobile Applications

 

The Digital Embassy Pty Ltd (ABN 89 083 227 276)

This licence agreement (Licence) is a legal agreement between you (Licensee or you) and The Digital Embassy PTY Ltd (The Digital Embassy), (whose registered office is at Level 2, 15 Leigh St Adelaide 5000 SA Australia) (Licensor, us or we) for:

  • Mobile App(s) and associated media (Application); and
  • Associated documentation (Documentation).

We licence use of the Application and Documentation to you on the basis of this Licence. We do not sell the Application or Documentation to you. The Digital Embassy remain the owners of the Application and Documentation at all times.

  • BY ENTERING INTO A PURCHASE CONTRACT WITH The Digital Embassy FOR A MOBILE APPLICATION DELIVERED UNDER LICENCE, YOU AGREE TO THE ADDITIONAL TERMS OF THIS LICENCE WHICH WILL BIND YOU.

 

License fees

 

The Application you have purchased is a The Digital Embassy Pty Ltd (“The Digital Embassy”) service. License fees are charged monthly by The Digital Embassy for use of the Application. License fees are due prior to the commencement of the applicable month. The license fees paid by you are paid in consideration of the license granted under this Agreement. License sales are final and The Digital Embassy does not refund license fees unless in breach of this Agreement.

 

Customisation charges

 

An Up-front fee is applied to cover the costs associated with any customisations and deployment expenses to the Application as agreed in the Proposal or Quotation. There may be further customisations agreed over the course of time. These will be scoped, agreed and charged separately to License fees.

 

Term and termination

 

This Agreement is effective upon your acceptance of the Agreement, or acceptance of a Proposal or Quotation from The Digital Embassy. This Agreement shall continue in effect until expiration or termination as provided herein (the “Term”). The Term is defined as 12 months from the deployment of the Application to most recent “Store” (for example Google Play or Apple App Store). Term-based licenses terminate upon the expiration of the term, unless you have paid all applicable fees to extend the term. Without prejudice to any other rights, this Agreement will terminate automatically without notice to you if you breach or fail to comply with any of the limitations or other requirements described herein, including the payment of any applicable fees, and you agree that in any such case The Digital Embassy may, in addition to any other remedies it may have at law or in equity, remotely disable the Application. You may terminate this License Agreement at any time by providing written notice of your decision to terminate the Agreement to The Digital Embassy, via email to [email protected], and paying the residual Term fees owing and any related termination costs. Upon any termination or expiration of the Agreement for any reason, The Digital Embassy agree to remove the Application from any Store it has been uploaded to.

 

Restrictions

 

Except as expressly set out in this Licence or as permitted by any local law, you undertake:

  1. not to copy the Application or Documentation except where such copying is incidental to normal use of the Application;
  2. not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Application or Documentation;
  3. not to make alterations to, or modifications of, the whole or any part of the Application, nor permit the Application or any part of it to be combined with, or become incorporated in, any other programs;
  4. not to disassemble, decompile, reverse engineer or create derivative works based on, the whole or any part of the Application nor attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Application with another software program, and provided that the information obtained by you during such activities:
    1. is used only for the purpose of achieving inter-operability of the Application with another software program; and
    2. is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
    3. is not used to create any software which is substantially similar to the Application;
  5. if you are a business, to supervise and control use of the Application and ensure that the Application is used by your employees and representatives in accordance with the terms of this Licence;
  6. not to remove our copyright notice or other intellectual property notices from the Application and/or Documentation;
  7. not to provide or otherwise make available the Application in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person without prior written consent from us.

 

 

 

Standard Managed Web Hosting Terms and Conditions

 

The Digital Embassy Pty Ltd (ABN 89 083 227 276)

These are the standard terms and conditions of supply of the The Digital Embassy web hosting and other related products and services offered from time to time on the The Digital Embassy web site at www.thedigitalembassy.co  or www,thedigitalembassy.com.au (“the Service”). These terms apply to you as a user of the Service (“Client” or “you”). Please read these terms and conditions carefully.

 

1. Terms and amendment procedure

 

1.1 These are the terms upon which we agree to provide the Service to the Client. In addition to these terms, you must also comply with:

  • Any specific Product Terms for products or services you acquire;
  • The Digital Embassy’s Pty Ltd Standard Terms of Service

1.2 The agreement made between us on these terms commences on the date when your order for Services was accepted by The Digital Embassy and will continue until terminated in accordance with these terms.

1.3 If you have chosen a fixed contract period (a contract period other than a month to month contract) for your Service, your account will be automatically rolled over for a further fixed contract period at the end of the term. You must give us 30 days written notice before the end of the term if you wish to cancel or alter your Service.

1.4 You must ensure that your contact details with us are current at all times. We will use those contact details to notify you of anything which affects the Services and do not take any responsibility for any loss, damages or expenses you incur if we have been unable to contact you because you have not kept your contact details up-to-date.

1.5 We may vary these terms, the price we charge for any Service (excluding Services supplied under a fixed contract period), or the terms of the operation of the Service, at any time by notice in writing. We will give at least 30 days’ notice in writing of the change, and the new terms or prices will apply 30 days after the end of that period. If you use the Services after expiry of the 30 days’ notice, your use will constitute an acceptance of the amended price or terms. In the event you do not accept the new price or term, you may terminate the Contract at any time during the 30 days’ notice with termination to be effective on expiry of the 30 days’ notice.

1.6 If you decide to remove your The Digital Embassy Pty Ltd built website, intranet, extranet or application from our hosting environment, where applicable, you may breech the conditions of your Service Level Agreement or OPTiMUM™ Support Agreement with us.

1.7 These terms constitute the agreement in its entirety and supersede prior agreements.

1.8 We may from time to time run promotions and make special offers of limited time duration (“Promotions”). All Promotions are offered subject to their terms and may be withdrawn or altered at The Digital Embassy’s discretion. The terms of a promotion will override these terms to the extent of any inconsistency.

 

2. Service

 

2.1 We must perform scheduled maintenance to servers from time to time. We will attempt to perform all scheduled maintenance at times which will affect the fewest clients. If scheduled maintenance requires the service to be offline for more than 1 hour we will attempt to advise affected customers via email of the scheduled maintenance at least 24 hours in advance of the maintenance.

2.2 We may need to perform unscheduled maintenance. If unscheduled maintenance requires the Service to be offline for more than 1 hour, we will we will attempt to advise affected Clients via email after the maintenance has been completed.

2.3 We will archive your data onto backup mechanisms on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, we will restore from the last known good archive. In the event of corruption of all of our archives, or in the event that an old archive is used to restore data, you should be prepared to upload your data to your website. You must maintain a recent copy of your data at your premises at all times which we will provide to you upon each request and at a minimum cost of $500 excluding GST. We will not be liable for incomplete, out-of-date, corrupt or otherwise deficient Client data recovered from our backups.

2.4 We will offer and provide at additional cost Dedicated Managed Hosting Services (opposed to Standard Managed Shared Web Hosting) where the Client requires to be on the only user of their virtual server environment, therefore mitigating the risk of the unscheduled removal or migration of the Clients website, intranet, extranet or application from this environment.

2.5 You agree to The Digital Embassy’s use of spam and virus filters as provided by our hosting partner which may require us to use third party equipment or services to monitor and filter email traffic between our equipment and the Internet. You agree that we will not be liable for any loss or damage resulting from the use of spam or virus filters.

2.6 The Digital Embassy will determine in its absolute discretion from time to time the data centre location from which your Service is provided. The Digital Embassy reserves the right to migrate your website to a new operating system platform if our operating system supplier ceases to provide support for the legacy operating system, or if the server from which the service is provided fails or, in The Digital Embassy’s opinion becomes unreliable or vulnerable. The Digital Embassy does not take any responsibility for website failure if you have not checked the operation of your website post-migration and notified us of any required changes to the website configuration. Should changes be necessary The Digital Embassy will assist the Client to carry out any work required and charge for this service on a time and materials basis.

2.7 In contracting with The Digital Embassy for Services, the Client obtains no rights to the hardware and other infrastructure and facilities used by The Digital Embassy or its hosting suppliers or partners to deliver the Service.

2.8 If your website’s data transfer exceeds the allocated amount per month, an additional fee of $0.10 per extra MB per month is charged.

2.9 The server space that is included with this plan is calculated by adding the monthly average of your website storage and the monthly average of storage of all your mailboxes under this account.

2.10 Once your server space exceeds the allocated limit, an additional fee of $0.10 per extra MB per month is charged.

2.11 POP mailboxes are provided at no additional cost as part of your hosting plan and are not subject to any service levels.

 

3. Payment

 

3.1 You must pay for the Service as notified to you by The Digital Embassy in accordance with The Digital Embassy’s published prices for Services from time to time. If you elect to pay your fees on a yearly basis, and fail to make payment within 30 days of invoice, you will not be entitled to receive the yearly fee discount where applicable.

3.2 You must pay all Service charges, traffic and/or storage charges and other amounts incurred by you or any designated users or incurred as a result of any use of your password (whether authorised or not) in accordance with the billing option selected and in advance. Where a billing option does not specify otherwise, all Service charges are payable within 7 days of the date of invoice.

3.3 Prices published on our website and in documentation provided to you are exclusive of any government taxes or charges unless otherwise noted, and exclusive of any registration or delegation charges imposed by domain name authorities.

3.4 In addition you must provide and pay for:

  • the installation and use of telephone lines and all other equipment needed to access the Service; and
  • all government taxes, duties and levies (if any) imposed on either you or us in respect of the Services or any other service or goods supplied.

3.5 You must pay all amounts billed in accordance with your billing option.

3.6 Where hosting is part of a development project, charges will apply from the start of the project development phase.

 

4. Customer warranties and indemnities

 

4.1 You accept and warrant that:

  • if you are not the Client, you have the power and authority to enter into this agreement on behalf of the Client and will indemnify The Digital Embassy for any breach of this agreement by the Client; at the time of entering into this agreement you are not relying on any representation made by us which has not been stated expressly in this agreement, or on any descriptions or specifications contained in any other document, including any catalogues or publicity material which we have produced;
  • you will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by you onto or downloaded by you from the Server does not contain any computer virus and will not in any way, corrupt the data or systems of any person; you will keep secure any passwords used with the Service; and,
  • you hold and will continue to hold the copyright in the Client Data or that you are licensed and will continue to be licensed to use the Client Data.

4.2 You are solely responsible for dealing with persons who access the Client Data, and must not refer complaints or inquiries in relation to such data to us.4.3 You indemnify us against all costs, expenses, loss or liability that we may suffer (directly or indirectly) resulting from:

  • your breach of these terms;
  • your use or misuse of the Service;
  • the use or misuse of the Service by any person using your account; and,
  • publication of defamatory, offensive or otherwise unlawful material on any web site forming part of your service.

4.4 If your use of our Services involves storage, processing or transmission of or access to any credit cardholder data, you warrant that the tools, programmes, processes and technologies you use to do so comply with the Payment Card Industry Data Security Standard (“PCI Standard”) which is available at https://www.pcisecuritystandards.org. If you breach this warranty, The Digital Embassy may terminate this agreement immediately upon written notice to you (which may be delivered by email to the person identified as your authorised contact, or by logged job), and without prejudice to any other rights it may have under this agreement or at law.

4.5 Your data and assets supported by our hosting services reside in a shared (others Clients websites & data residing on the same server) environment and is exposed to a potential risk of being adversely affected by others sharing this environment. By using The Digital Embassy shared hosting services you indemnify us against all costs, expenses, loss or liability that you may suffer (directly or indirectly) resulting from your information being affected by software or changes made to another Clients website or data.

4.6 In the unlikely event that your website(s) is removed from our Standard Managed Shared Web Hosting environment we will provide you with 30 days’ notice of its removal where possible. Where this happens we will make all reasonable efforts to advise you via email either prior to or directly post removal, as well as work with you to trouble shoot and rectify any issues which caused it to be removed. These service are at additional cost to you if not covered under an existing Support Agreement with us. In the event of a website removal fees related to the storage, supply, back up and/or migration of your data will be borne by you. Exceptions may occur in emergency or unscheduled situations where the server(s) upon which your website resides experiences problems caused by your website and/or unauthorised external access such as a cyber-attack, and is identified by us as a high security and/or performance risk. In this event it will trigger the following course of action:

  • We will immediately shut down your site to prevent disruption to other users
  • We will contact you to discuss your options. Any work required to perform tasks to your site will incur charges at a minimum cost of $230 excluding GST per hour.

 

5. Domain names

 

5.1 If you have requested that The Digital Embassy register, renew or redelegate a .com, .net, .org, .biz, or .info domain name (TLDs or Top Level Domains) on your behalf, you agree that you have read and accept the TLD Policy applicable to .com, .net, .org, .biz and .info domain names issued by our registrars WebCentral Pty Ltd,  MelbourneIT Ltd and NetSol.

5.2 You agree that in the event of a dispute about a TLD, you will submit to and are bound by the Uniform Domain Name Dispute Resolution Policy (UDNDRP) and the Rules for UDNDRP.

5.3 If you have requested that The Digital Embassy register, renew or redelegate a .com.au, .id.au, .net.au or .org.au domain name (2LDs or Second Level Domains) on your behalf, you agree that you have read and accept the published policies applicable to 2LDs issued by the registrar, MelbourneIT.

5.4 You agree that in the event of a dispute in registering a 2LD or about a 2LD after registration, you will submit to and are bound by the .au Dispute Resolution Policy (auDRP) and any variations to it from time to time bind The Digital Embassy.

5.5 In registering, renewing or redelegating a domain on your behalf, The Digital Embassy is acting as a reseller of the registrars, WebCentral Pty Ltd, MelbourneIT and NetSol.

5.6 You agree that by maintaining the registration of a domain name after changes or modifications to the applicable policies become effective, you are confirming your continued acceptance of these changes and modifications.

5.7 The Digital Embassy makes no representation and gives no warranty about your chosen domain name being available for registration, renewal, redelegation or use by you.

5.8 In respect of 2LDs, you acknowledge that The Digital Embassy is not able to renew your domain name and is not liable for any loss or damage resulting from non-renewal of your domain name if you do not provide any warranty required and confirm to us that the domain name should be renewed.

5.9 The Digital Embassy may NOT renew your domain name where you have unpaid invoices or if you are in breach of any terms of your use of The Digital Embassy’s services.

5.10 You expressly authorise and direct The Digital Embassy, if The Digital Embassy is able to do so, to: (a) be nominated as authorised billing contact for your domain name with the domain name registrar; and (b) subject to receipt of your confirmation in respect of 2LDs, renew your domain name registration upon receipt of renewal notification from the domain name registrar and invoice you for the relevant charge in accordance with The Digital Embassy’s list price from time to time.

5.11 If you close your account with The Digital Embassy but do not remove The Digital Embassy as the reseller of your domain name with the domain name registrar, you agree that we may contact you after account closure to remind you of domain name renewals and to provide marketing material in respect of our services.

5.12 You indemnify The Digital Embassy against all claims arising out of your registration and use and renewal of registration of your chosen domain name, unless and to the extent that the claim arises out of The Digital Embassy’s breach of this contract, or its negligent act or omission.

 

6. Miscellaneous

 

6.1 The Client grants to The Digital Embassy a license to use and reproduce all Client Data in order to fulfil its obligations under this agreement. In this agreement “Client Data” means all information, data, text, logos, images, audio, movie clips and/or content in any form that forms part of the Client’s websites or emails.

6.2 A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.

6.3 The law in force in South Australia governs this agreement and the transactions contemplated by this agreement.

6.4 You may not resell Services or assign your rights and obligations under this agreement without our prior written consent.

 

7. Cancellation

 

7.1 Unless otherwise stated in your agreement, the notice for Termination for The Digital Embassy Managed Web Hosting monthly and fixed term services is 30 days and should be made in writing to [email protected]. Early cancellation fees and charges, and file supply charges may apply (if applicable).

7.2 For fixed term Web Hosting services if the effective date of termination is before the end of the minimum contract period, you must pay The Digital Embassy any applicable early cancellation fees and charges owing. The early cancellation charges owing including all costs that would have otherwise been paid by you for the remaining term of your fixed term services agreement. The early cancellation charges owing will be based on the most current agreement costs and terms prior to termination.

 

 

Standard Managed Web Hosting Service Level Agreement

 

Item 1 – Application

 

(a) The Service Levels are provided in respect of The Digital Embassy’s Dedicated Servers used in the provision of the Services (as opposed to individual sites on servers).

(b) The Digital Embassy’s performance with regard to the Service Levels will be measured according to monthly averages, generated for each full calendar month the Services are provided to the Client.

(c) Service Levels apply only to the functions and responsibilities of The Digital Embassy expressly identified in Item 2.

(d) The remedies set out in the Service Level Rebate section of each Service Level are the sole remedies available to Client for breach of Service Levels.

 

Item 2 – Service Levels

 

Network availability

 

A. Service level

(a) The Digital Embassy guarantees that Network Availability will be at least 99%.

(b) The Digital Embassy defines Network Availability as the total percentage of time during which network paths between the core routers and the internet are available for unhindered traffic flow. The Digital Embassy does not include specific services such as Email or Web in this definition; such services may potentially be affected by a single server’s downtime, which is not representative of the network as a whole. The calculation of network availability excludes downtime resulting from scheduled maintenance performed during scheduled maintenance window (1:00am – 6:00am AEST).

(c) Network Availability is monitored via an ICMP ECHO response (ping) test conducted between a test server on the provider’s network and one or more of their core routers.

B. Service level rebate

Remedy for performance below 99% Network Availability is via a percentage rebate off the monthly hosting fees, as set out below.

Network Availability Percentage rebate off monthly hosting fee
98.9% to 97.9% 5%
97.8% to 96.9% 10%
96.8% to 95.9% 15%
Less than 95.9% 20%

 

Server availability

 

A. Service level

(a) The Digital Embassy guarantees that Server Availability will be at least 99%.

(b) The Digital Embassy defines Server Availability as the total percentage of time the Server Availability Monitoring returns an appropriate response for the Client’s Server.

(c) Clients’s Server is defined as the The Digital Embassy dedicated server(s) covered by the web hosting agreement.

(d) Server Availability Monitoring is via an ICMP ECHO response (ping) test conducted between a test server on the provider’s network and the Client’s Server.

B. Service level rebate
Remedy for performance below 98.5% Server Availability is via a percentage rebate off the monthly hosting fees, as set out below.

Server Availability Percentage rebate off monthly hosting Fee
98.9% to 97.9% 5%
97.8% to 96.9% 10%
96.8% to 95.9% 15%
Less than 95.9% 20%

 

Server backup

 

(a) The Digital Embassy guarantees that it will:

(i) Ensure daily backups of the Customer’s data every evening;

(ii) Keep daily backups for 1 week in storage onsite at Provider’s Data Centre;

(b) No Service Level Rebate will apply for breach of this Service Level.

 

 

Item 3 – Service Level Rebate Conditions

 

(a) If, in any calendar month, a The Digital Embassy Service is unavailable such that The Digital Embassy fails to meet the Service Levels, then upon written application by Client to be given within 14 days after the end of the month in which the relevant Service was Unavailable (“Claim Period”), The Digital Embassy will refund to Client a percentage rebate of the Hosting Fees for the relevant Service in that month. Rebates are available only in respect of Services set out against the relevant Service Levels in Item 2 (“Service Level Rebate”). The Digital Embassy will not be liable for payment of Service Level Rebates for claims received after expiry of the Claim Period. For the purposes of calculating the Service Level Rebates for a given Calendar month the percentage rebate referred to in the Table indicated shall be applied to the amount of Hosting Fees paid in respect of the affected Service for that month.

(b) The Service Level Rebate in any month will not exceed in aggregate 25% of the total Service Fees otherwise due for the affected Services in the relevant month.

(c) The Digital Embassy must deduct the Service Level Rebates from the next invoice following the end of the month in which the Service Level Rebate request is received and approved by The Digital Embassy, or from other amounts due to The Digital Embassy.

(d) Clients in default in payment of Service Fees at the time of a particular service outage will not be entitled to claim Service Level Rebates for that service outage.

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