Terms of Service
You must read these terms of service (“Terms of Service”) and all other Policies (as defined below) before using our Services. By using our Services, you agree to these Terms of Service and all Policies.
1. DEFINITIONS & INTERPRETATION
1.1 Definitions
In these Terms of Service unless inconsistent with the context or subject matter:
(a) "Agency" means Reddrop Group PTY LTD trading as Reddrop Media ABN 70 626 690 622;
(b) “Client” means a person who engages us to provide Services;
(c) “Information” means any information relating to a Client that is provided by the Client to the Agency in connection to the Services;
(d) “Content” includes any material, text, pictures, sound, graphics, video and other data whether in written form or otherwise;
(e) “Fee” means the amount quoted by us to provide you with the Services, plus GST (unless otherwise stated);
(f) “GST” has the meaning given to that term in the GST Law and includes any other goods and services tax, or any tax applying to a transaction contemplated by these Terms of Use in a similar way;
(g) “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(h) “GST Law” has the meaning given to that term in the GST Act and any associated Commonwealth legislation, regulations and publicly available rulings;
(i) “Intellectual Property” means all intellectual property rights, including without limitation inventions, patents, copyright, rights in circuit layouts, designs, trade marks, know-how, processes, concepts, the website developed or designed by us for you, the system or operations developed by us and used on any website owned by you and the source code for that system and any application or right to apply for registration of any of the these rights throughout the world whether registered or unregistered. For the avoidance of doubt the Intellectual Property includes without limitation:
(i) the code in respect of any website developed or designed by us for you;
(ii) any assets we develop;
(iii) any plugins/modules/functionality we develop;
(iv) any domain names, SSL certificates or software subscriptions we purchase, whether on our own behalf or on your behalf; and
(v) any other similar digital items not listed above.
(j) “Loss” means any loss, liability, cost, charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses, expenses, or lost or stolen programs or other data (howsoever arising or caused, including, without limitation, negligence);
(k) “our”, “us” and “we” means the Agency;
(l) “Policy” means any policy of the Agency in place from time to time including without limitation any policy relating to privacy, fees, refunds and service;
(m) "Related Entity" has the meaning given to it in section 9 of the Corporations Act 2001 (Cth);
(n) “Services” means any website development, design, search engine optimisation or other services provided by us to you, as well as the provision of the Website;
(o) “User” means any person who uses the Website for any purpose whatsoever;
(p) “Website” means reddropmedia.com.au;
(q) “you” and “your” means a Client or a User as the case may be.
1.2 Interpretation
In these Terms of Service, unless inconsistent with the context or subject matter:
(a) a reference to a person includes any other legal entity;
(b) a reference to a legal entity includes a person;
(c) words importing the singular number include the plural number;
(d) words importing the plural number include the singular number;
(e) the masculine gender must be read as also importing the feminine or neuter gender;
(f) a reference to a party includes the party's heirs, executors, successors and permitted assigns;
(g) headings are for reference purposes only and must not be used in interpretation, with the exception of where a subheading of Client, User and/or Provider is used, in which case clauses under that subheading relate to the party referred to in the subheading;
(h) where any word or phrase is given a defined meaning any other part of speech or other grammatical form concerning the word or phrase has a corresponding meaning;
(i) a reference to a statute includes all regulations and subordinate legislation and amendments;
(j) references to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail and fax;
(k) a reference to a monetary amount is a reference to an Australian currency amount;
(l) an obligation of two or more parties binds them jointly and each of them severally;
(m) an obligation incurred in favour of two or more parties is enforceable by them severally;
(n) references to time are to local time in Ballarat, Victoria;
(o) where time is to be reckoned from a day or event, the day or the day of the event must be excluded;
(p) a reference to a business day means any day on which trading banks are open for business in Ballarat, Victoria;
(q) if any time period specified in this agreement expires on a day which is not a business day, the period shall expire at the end of the next business day;
(r) a reference to a month means a calendar month; and
(s) a reference to data includes metadata.
2. USER ELIGIBILITY
2.1 Our Services are available only to, and may only be used by, persons who can form legally binding contracts under applicable law. Without limiting the foregoing, our Services are not available to persons under 18 years of age. If you do not qualify, please do not use our Services.
3. YOUR OBLIGATIONS
3.1 You must use our Services in accordance with these Terms of Service and our Policies. You must also ensure that you comply with all clauses of these Terms of Service and all Policies and all terms and policies included by reference in those documents.
3.2 Your use of our Services, and the Information you provide to us, must not:
(a) be false, inaccurate or misleading;
(b) be fraudulent or deceptive;
(c) infringe any third party’s copyright, patent, trademark, trade secret, intellectual property or other proprietary rights or rights of publicity or privacy;
(d) violate any applicable law;
(e) be defamatory, trade libelous, unlawfully discriminatory, threatening or harassing;
(f) be obscene, pornographic or indecent or contain adult material or vulgar, profane, discriminatory, offensive or racist language;
(g) contain comments of a religious, political or social nature;
(h) contain any viruses, trojan horses, worms, time bombs, trap doors, back doors, easter eggs, spiders, robots, screen scrapers, data aggregation tools or other devices or other computer programming routines that may or are intended to damage, modify, delete, interfere with, surreptitious intercept, access without authority or expropriate any system, data or personal information or otherwise affect the integrity, operation or security of our Services;
(i) create liability for us or cause us to lose (in whole or in part) the services of our internet service provider or other Clients or suppliers;
(j) damage the credibility or integrity of the Agency;
(k) breach or violate any Policy;
(l) link directly or indirectly to or include anything that:
(i) you do not have a right to link to or include;
(ii) could cause us to violate any applicable law, statute, ordinance or regulation.
4. FEES & SERVICES
4.1 Unless otherwise agreed by us in writing, you must pay 30% of the Fee to us immediately on the acceptance of a quote provided by us in respect of the Services. For the avoidance on doubt, a binding contract in respect of the provision of the Services and the payment of the entire Fee by you is formed as soon as you communicate your acceptance of a quote provided by us in respect of Services. You must pay us the remainder of the Fee within 7 days of completion of the Services we agreed to provide to you under the quote.
4.2 You must pay us the entire Fee without set-off or claim under any circumstances, including if a dispute exists in relation to the Services provided.
4.3 The Fee must be paid into the bank account nominated by us or by any other means specified by us.
4.4 To the extent permitted by law, our Fee is non-refundable.
4.5 Unless otherwise stated, our Fee and any other amounts payable by you to us is increased by any goods and services tax payable on the supply of the Services.
4.6 You acknowledge and agree the only Services we are required to provide to you are those listed in the quote document provided by us.
5. DELIVERY DATES
5.1 We will use our best endeavours to meet the time-frames for delivery agreed to with you, however we make no warranty, representation or guarantee that such time-frames will actually be met and you will hold us harmless from any Loss suffered by you as a result of our failure to comply with any time-frames agreed by us for completion of the Services (or any part of it).
6. BREACH
6.1 Without limiting other remedies available to Agency at law, in equity or under these Terms of Service or any other Policy or otherwise, we may, in our sole discretion, immediately issue a warning, temporarily suspend, indefinitely suspend or terminate the provision of the Services to you if:
(a) you breach these Terms of Service or any Policy or the terms and policies those documents incorporate by reference; or
(b) we are unable to verify or authenticate your Information; or
(c) we believe that your actions may cause legal liability for us or other Clients; or
(d) in our sole opinion, your conduct, acts or omissions threaten, interfere or impact upon the integrity or credibility of our Services or the Agency; or
(e) we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise in our sole discretion) have engaged in fraudulent or deceptive activity.
7. NO WARRANTY AND DISCLAIMERS
7.1 We provide our Services on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. To the extent permitted by law, we specifically disclaim any implied warranties including in relation to title, merchantability, fitness for a particular purpose and non-infringement. Furthermore we do not guarantee continuous, uninterrupted or secure access to our Services or your Information, and the operation of your website or applications may be interfered with by numerous factors outside our control.
7.2 For the avoidance of doubt, and without limitation to clause 7.1, we do not warrant or represent that our Services will result in increased sales, revenues, profits or customers, specific lead or traffic generation, sales, profitability or any other outcomes.
7.3 You warrant that you have not relied upon any representations, warranties or conditions offered or made by or on behalf of the Agency except to the extent expressly set out in these Terms of Service.
7.4 To the extent that the Agency and its Related Entities are able to limit the remedies available under these Terms of Service, and subject to clause 8, the Agency and its Related Entities expressly limit their liability for breach of a non-excludable condition or warranty implied by virtue of any legislation or law to the amount of $10.00 or the costs of providing the Services again, whichever is the lesser.
7.5 No data transmission over the internet can be guaranteed as totally secure. Whilst we strive to protect your Information, we do not warrant and cannot guarantee the security of your Information which you transmit to us or through your website. Accordingly, your Information which you transmit is transmitted at your own risk. We cannot guarantee the confidentiality or security of your Information, and we will not be responsible or liable for any Loss incurred in this regard. You must inform the Agency immediately of any breaches of security or unauthorised use of your Information.
8. LIABILITY
8.1 In no event shall the Agency or its Related Entities, officers, directors, employees agents, contractors or suppliers be liable for any Loss arising out of or in connection with:
(a) any failure or performance, error, omission, interruption, defect, delay in operation or transmission of your website or applications, including any Loss caused by any failure or performance, error, omission, interruption, defect, delay in operation or transmission arising out of or in connection with the Services;
(b) line or system failure or the introduction of a computer virus or other technical sabotage; or
(c) our Services, even if we or our employees or representatives are advised of the possibility or likelihood of such Loss.
8.2 You agree to accept sole responsibility for the legality of your actions under the laws which apply to you. You agree that the Agency and its Related Entities, officers, directors, employees, agents, contractors and suppliers have no responsibility for the actions of other Clients (including the legality of such actions).
8.3 Without prejudice to clause 7 and notwithstanding any other provision of these Terms of Service and except to the extent permitted by law:
(a) our total liability arising out of or in connection with these Terms of Service, and the liability of our suppliers, to you or any third parties in any circumstance is limited per event to the amount of $10.00; and
(b) the Agency shall not be liable for any Loss, including loss of contract, loss of profit or revenue, contractual claims of third parties, economic loss, loss of production, business interruption, loss of data, production stoppage, or consequential or indirect loss or damage.
8.4 The limitation and exclusion of liability in this clause applies whether the liability claim is based on breach of contract, under a warranty or an indemnity, tort (including negligence), under statute, in equity or otherwise.
8.5 Notwithstanding any other term in these Terms of Service, nothing in these Terms of Service is intended to limit or exclude any liability on the part of Agency or its Related Entities, officers, directors, employees, agents, contractors or suppliers where and to the extent that any applicable law prohibits such exclusion or limitation.
9. INDEMNITY
You agree to indemnify and hold us and our Related Entities, officers, directors, agents, employees, contractors and suppliers harmless from and against any actions, claims, demands, proceedings, Loss of every kind and nature, known and unknown, including legal fees (on a solicitor and own client basis) and claims made by third parties, due to or arising out of your breach of these Terms of Service or any Policy or the terms and policies they incorporate by reference, or your violation of any law or the rights of a third party, or otherwise in arising in connection with the Services including without limitation any third party hosting failures or incorrect marketing campaigns. For the avoidance of doubt you agree to indemnify us in respect of any legal fees (on a solicitor and own client basis) or other fees incurred by us recovering non-payment of the Fee.
10. INTELLECTUAL PROPERTY
10.1 You acknowledge and agree that:
(a) the Agency owns the Intellectual Property and no right, title or interest in any of the Intellectual Property is transferred or granted to you. For the avoidance of doubt, you acknowledge that the payment of the Fee entitles you to be provided with the Services. It does not entitle you to ownership of the Intellectual Property;
(b) you will not copy, reproduce, alter, modify, create derivative works, or publicly display (other than on the website designed or developed by us) any of our Intellectual Property without our prior written consent;
(c) following completion of the Services, you may host your website with us for a fee notified by us, and no licence fee in respect of the ongoing use of the Intellectual Property by you will be payable. Website designs are developed on a proprietary content management system and can NOT be transferred to another host. Upon cancelation of services all design assets will be lost.
10.2 The information, names, text materials, graphics, logos, button icons, images, video and audio clips, trade marks (whether registered or not), advertisements, layout, arrangement, graphical user interface, look and feel, and control features of the Website (the "Content") is protected by Intellectual property rights. You acknowledge that the Agency is the owner of these rights, with our affiliates or other third party licensors (if applicable).
10.3 You acknowledge and agree that no right, title or interest in any of the Intellectual property rights in the Content or the Website is transferred or granted to you.
10.4 You agree that:
(a) any intellectual property rights created, formulated or discovered by you through the use or access to the Website will be the sole and exclusive property of the Agency;
(b) you will promptly sign all documents and do all things necessary to register, vest or transfer any interest or ownership in the Intellectual property rights created hereunder to the Agency.
10.5 The Agency’s logo and name are owned by us, and may not be used as part of your business or in connection with any goods or services without the prior written consent of the Agency which shall be given, given with conditions or withheld at the Agency's absolute discretion.
10.6 You hereby grant Reddrop Media a non-exclusive irrevocable licence to feature your name and logo on the Website in the “Our Clients” or any similar section.
10.7 You acknowledge and agree that we will suffer significant Loss in the event you use our Intellectual Property in breach of this clause 10, which we will recover pursuant to clause 9. In the event of breach of this clause 10, we will estimate the extent of the Loss suffered by us which shall be recoverable by us immediately on demand as a debt due and owing, despite any pending litigation.
11. ACCESS
11.1 Your use of the Website is by non-exclusive licence granted by the Agency strictly in accordance with these Terms of Service.
11.2 You acknowledge and agree with the Agency that you will not, as a result of being granted a non-exclusive licence, acquire any rights (including without limitation Intellectual property rights) in the Website other than the non-exclusive rights granted in accordance with these Terms of Service.
11.3 The Website is available only to, and may only be used by, individuals who can form legally binding contracts under their applicable law.
11.4 In order to use this Website, you require the equipment and connections necessary to access the World Wide Web. Without limitation, you are responsible for:
(a) the provision of any such connection or access to the World Wide Web;
(b) the payment of any fees associated with such connection or access (such as those charged by an internet service provider or other online service); and
(c) the provision of all equipment necessary for you to make any such connection to the World Wide Web, including a computer and a modem.
11.5 The Website is controlled and operated by us from our offices in the Australia. We have used our best endeavours to ensure that the Website complies with Australian laws.
12. SYSTEM INTEGRITY & USER CONDUCT
12.1 You acknowledge and agree that you must not:
(a) use the Website for any purpose other than the purpose for which it was designed and intended;
(b) commit or permit any act which may interfere with the use of the Website by any other user;
(c) tamper with, hinder the operation of or make unauthorised modifications to the Website or any part thereof;
(d) damage or modify the Website or any part thereof;
(e) reverse engineer, decompile or disassemble the Website or any part thereof; or
(f) copy, republish, frame, download, transmit, rent, lease, loan, sell, distribute, licence or sublicense the Website or any part thereof.
12.2 You must not without prior written consent of the Agency which shall be given, given with conditions or withheld at the Agency's absolute discretion affix or otherwise display your name or logo on the content of the Website or any other website in a way that suggests a direct or indirect association with the Agency and/or the Website.
13. LINKS & ADVERTISING
13.1 This Website may contain links to third party websites. Those websites are not under the control of the Agency and the Agency is not responsible for the content of the links contained in those websites or any webcasting or other transmission received from any such websites.
13.2 Neither the Agency nor its officers, directors, employees, agents, or related bodies corporate recommend or endorse the content of any third party websites which may be linked to or from the Website, our Services or the services of any third party organisations mentioned or described on the Website. You acknowledge that you enter any third party websites at your own risk.
13.3 The Website may contain advertisements for third parties' goods and/or services. The third party advertisers are responsible for the accuracy of all representations made in those advertisements. Neither the Agency nor its officers, directors, employees, agents or related bodies corporate recommend or endorse the goods or services that may be advertised on the Website, nor do they offer the goods or services for sale or make any other representation whatsoever about them. If you choose to order services advertised by a third party on the Website, you do so at your own risk.
13.4 You must not link the Website from any other website not owned or operated by the Agency without the prior written consent from the Agency.
14. MISCELLANEOUS
14.1 Use of our Services is done so at your own risk.
14.2 These Terms of Service are governed by the laws of Victoria and the Commonwealth of Australia which are in force in Victoria and the parties submit to the jurisdiction of the Court of Victoria, relevant Federal Courts and Courts competent to hear appeals from them.
14.3 These Terms of Service shall be for the benefit of and binding upon the parties and their heirs, executors, successors and permitted assigns.
14.4 If a clause of these Terms of Service are void or unenforceable it must be severed from these Terms of Service and the clauses that are not void or unenforceable are unaffected by the severance.
14.5 You agree that these Terms of Service may be assigned by Agency, in our sole discretion, to Related Entities or third parties. You may not assign these Terms of Service without Agency’s express prior written consent.
14.6 Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
14.7 Agency's failure to act with respect to a breach by you or others does not constitute a waiver of that breach or waive our right to act with respect to that breach or subsequent or similar breaches.
14.8 You agree that these Terms of Service may not be construed adversely against us solely because we prepared them.
14.9 These Terms of Service and the Policies comprise the entire understanding and agreement between you and us with respect to the subject matter hereof and any oral or other written agreements between the parties that are inconsistent with these Terms of Service and the Policies shall be negated.
14.10 Nothing in these Terms of Service establishes or creates a joint venture, partnership, consortium, franchise, employment or agency relationship between the parties including in particular between the Agency and Clients.
14.11 Any provision capable of surviving termination of these Terms of Service shall survive any termination or expiration of these Terms of Service.
14.12 Should a dispute arise in connection with these Terms of Service which cannot be resolved by good faith negotiations between us and you, Agency may at its sole discretion refer the dispute to mediation or to arbitration. At all times we reserve the right to instigate legal proceedings prior to negotiation, arbitration or mediation against any person including any individual or entity (incorporated or otherwise), who in our opinion has acted in breach of these Terms of Service.
14.13 The contra proferentem rule and other rules of construction will not apply to disadvantage a party whether that party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.