General Terms & Conditions
This Agreement, as varied from time to time, applies to all sales of goods and the provision of all services by the Supplier to the Client pursuant to the Agreement, together with any non-excludable conditions and warranties expressed by law, constitutes the entire agreement between the parties.
• “Agreement” means these terms and conditions herewith.
• “Client” means the person and/or business described as the client within the “Client Details” area of the order form, proposal, Contract.
• “Authorisation” means the acceptance of the proposal using the online portal, making a payment or signing our paperwork / contract.
• “Business Day” means any day that is not a Saturday, Sunday or a public holiday in New South Wales;
• “Fees” means the Price together with any Additional Charges incurred by you relating in any way to this Agreement and the Services.
• “Bug” means any lack of function in the Services that is the direct result of a coding or design error by Whitecrow Digital;
• “Training” means the instruction of 1 person in the operation of the Services at Whitecrow Digital offices, at an agreed time and date.
• “Website” means your website designed, built and hosted pursuant to this Agreement.
• “Scope” means the document entitled “Scope” provided by Whitecrow Digital to the Client and which describes the Services Digital Monopoly offers to perform for the Client pursuant to this Agreement.
• A “reasonable time frame” is within 12 months however shall be extended by client requests, amends or delays.
• “Intellectual Property” means the intellectual property attaching to the Services including copyright, patents, trademarks, design rights, domain names whether registrable or not and whether registered or not.
“Confidential Information” means all the information provided by one party to the other in connection with this Agreement where such information is identified as confidential or ought reasonably be considered to be confidential based on its context, nature or the manner of its disclosure, but excluding:
• information that is in the public domain other than by a breach of this Agreement; and
• information developed independently by a third party.
Without limiting the foregoing, Confidential Information includes the terms of this Agreement and the contents of the Scope.
• “Price” means the fees outlined by Whitecrow Digital
• “You” and “Your” means the Client named within the “Client Details” area.
• “Our”, “Us”, “Whitecrow Digital” and “We” means the “Supplier” Whitecrow Digital and associated brands and businesses.
• “Notice of completion” means a notice in writing, given by Whitecrow Digital to the Client advising that the goods or services subject of the Contract have been provided completed by the Supplier.
You are engaging Whitecrow Digital to provide the Services as defined in the “Contract”.
To accept our offer to provide the Services you must accept the offer of Whitecrow Digital using the online acceptance system or sign our paperwork or pay either the agreed Deposit / Initial Payment or agree to a payment schedule (any of these acts, individually or combined is considered “Acceptance”).
If Acceptance does not take place within 28 days from the date the document is provided to you, then our offer to provide the Services will expire without further notice to you. This may be extended by mutual agreement.
Whitecrow Digital will produce the chosen services to the specifications contained in the Scope (herein referred to as “the Services’) our services offered include:
• Graphic Design / Web Design;
• Website Development;
• Search Engine Optimisation;
• Content Writing;
• iPhone App Design and Development;
• Google Adwords / PPC Services
• Conversion Tracking;
• Domain Name Acquisition;
• Technical Support;
• Conversion Tracking;
You agree to pay Whitecrow Digital the Price for the Services in accordance with the Contract.
The Supplier may, at the cost of the Client, engage the services of a debt recovery agency to assist it, if payment is more then 7 days late. The engagement of a debt recovery agency may result in your credit
file being updated, having a negative impact on your credit history.
Whitecrow Digital is retained to undertake the Services exclusively. No part of the Services may be undertaken by you or by any third party instructed by you.
All notices must be in writing and can be given by:
1. Hand delivery between the hours of 9.00am and 4.30pm AEST;
2. Registered post;
A notice is deemed to be given and received:
• If delivered in accordance with clause 1, on the next Business Day after delivery;
• If sent in accordance with clause 2, in 5 Business Days after the day of posting;
• If delivered in accordance with clause 3, on the next Business Day after sending;
A Notice of Completion will be issued upon achieving a milestone and the relevant amount is due within 7 days.
The Client will inspect the goods and services provided by the Supplier within 7 days of receipt of a Notice of Completion and must within that period:
• Give the Supplier written notice of any matter by virtue of which the Client alleges that the goods or services are not in accordance with the Contract;
• Make payment of the Balance of the price. The Supplier shall have no obligation to rectify or replace any goods or services not in accordance with the Contract where notice is not given by the Client within seven days after the date of provision.
Breach & Termination
You will breach this Agreement upon:
• failure to have provided content as required within 4 weeks of signing this agreement;
• contravention of your obligations pursuant to Warranty Indemnity & Confidentiality terms previously listed;
• termination of the Hosting;
• being unresponsive to our communication;
• failure to conduct yourself in a professional manner;
• being rude or aggressive towards the Supplier;
• referring to any of our companies, brands, staff / agents on social media, forums, reviews or websites.
Whitecrow Digital may terminate this Agreement upon the occurrence of any of the events described immediately above, where you have failed to remedy the breach within 14 days of notice.
In addition to these clauses, any party may terminate this Agreement by written notice to the other party
if any of the following events has occurred in respect to the other party:
• a material breach of this Agreement which is not remediable or if the other party has not remedied within 14 days of written notice;
• an insolvency event occurs, other than an internal reconstruction with notice to the other party.
The parties are immediately released from their obligations under this Agreement except those obligations contained within the Price, Additional Charges, Warranties & Indemnity clauses and any other obligations which by their nature survive termination within their contractual period;
• each party retains the claims it may have against the other;
• you must immediately pay any outstanding Fees.
In regards to the production of the chosen Services, Time is not of the essence. The Services will be provided within a reasonable time frame as defined above.
Nothing in this Agreement creates any relationship of partnership or agency between the parties.
If a provision is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
Each party must at its own expense do everything reasonably necessary to give full effect to this
Agreement and the events contemplated by it.
This Agreement and the Scope together form the entire agreement between the parties about its subject matter and supersedes all other representations, arrangements or agreements. Except as expressly set out in this Agreement or the Scope, no party has relied on any representation made by or on behalf of the other.
Unless otherwise expressly stated in the Contract, no waiver or relaxation in whole or in part of any of the terms and conditions of the Contract will be binding on the Supplier unless in writing and signed on by a Director of the Supplier. Any such waiver or relaxation shall be limited to the term or condition and occasion in question.
A party will not be responsible for a failure to comply with its obligations under this Agreement to the extent that its failure is caused by an event beyond the control of that party (“Force Majeure”) provided that the party so affected keeps the other party closely informed and uses reasonable endeavours to rectify the situation.
Without limiting any other right to terminate under this Agreement, if Force Majeure affects a party’s performance under this Agreement for a period of more than 30 consecutive days, the other party may immediately terminate this Agreement by written notice.
Any action or thing that falls due to be done on a day that is not a Business Day will fall due on the next Business Day.
The law of New South Wales governs this Agreement and each party submits to the jurisdiction of the courts of New South Wales.
The Client agrees that there is no cooling off period and any monies debited or received are nonrefundable.
Cancellation of any Direct Debit Authority does not affect your liability to pay the fees in full under the contract.
A party must not, without the prior written consent of the other party, use or disclose the other party’s Confidential Information unless expressly permitted by this Agreement or required to do so by law or regulatory authority.
Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party’s Confidential Information.
A party may:
• use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and
• disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for the purposes related to this Agreement but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.
Subject to the Price, all work requested by you and undertaken by Whitecrow Digital in addition to the Services will incur charges additional to the Price (“Additional Charges”).
• As at the date of this Agreement, the Additional Charges are $100 / hour + GST;
• Minimum charge is half an hour;
• Except for agreed and quoted work.
Where the Supplier, at the request of the Client, provides services in addition to those specified in the Scope of Works, and no Price for those additional services has been agreed to by the parties in writing signed by them, the Supplier’s fee for those additional services shall be the number of hours (or part thereof) spent by each employee of the Supplier in providing those services multiplied by the Supplier’s hourly rate.
You authorise Whitecrow Digital to display your Services in its portfolio, including but not limited to the portfolio displayed on https://www.whitecrowdigital.com.au, any of our partner websites, and media releases.
You also agree for a Whitecrow Digital or our partners logo to be placed on the footer of your website and hyperlinked to any of our websites with a “Do Follow” tag.
Subject to the full payment of the Price, the Intellectual Property shall be vested in you and Whitecrow Digital thereupon assigns the Intellectual Property to you.
You hereby unconditionally and irrevocably agree to indemnify and keep indemnified Whitecrow Digital, its officers, employees and agents against any and all actions, claims, demands, losses, liabilities or costs (including legal costs) that arise, or result from, or are connected in any way with the Services, the Hosting, including but not limited to the sale of any product or service via your Website, except to the extent to which it arises out of any breach by Digital Monopoly of this Agreement.
If the Client orders goods or services in its capacity as trustee of a trust, the Client warrants that it has full power and authority to accept goods and/or services under the Contract for the benefit of the trust, warrants that its right of indemnity against the trust property is unrestricted and will not be adversely affected by the Contract, agrees that it will be bound by the Contract both personally and in its capacity as trustee of the trust, acknowledges that its liability for indebtedness incurred while a trustee will apply even if it ceases to be trustee of the trust for any reason; and acknowledges that its liability will not be limited to the assets of the trust
Limitation of Liability
Whitecrow Digital excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages or loss. To the full extent permitted by law, Whitecrow Digital excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement.
Whitecrow Digital’s total aggregate liability for all claims relating to this Agreement is limited to 35% of the Price and any Additional Charges incurred by you.
Each party’s liability for any claim relating to this Agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.
The Supplier will not be liable to the Client for any loss or damage of any kind sustained by the Client as a consequence of any breach of the Supplier’s obligations pursuant to the Contract.
If failure to supply is caused by matters beyond the Supplier’s reasonable control including (without limitation) acts of God, acts of any government, war or other hostility, national or international disaster, the elements, fire, explosion, power failure, equipment failure, strikes, lockouts, inability to obtain necessary supplies and any other force majeure occurrence.
This Agreement is to be read subject to any legislation, which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions or obligations. If such legislation applies, to the extent possible, Whitecrow Digital limits its liability in respect of any claim to, at Whitecrow Digital’s option:
In the case of goods:
• the replacement of the goods or the supply of equivalent goods;
• the repair of the goods;
• part payment of the sum chargeable by Whitecrow Digital (without discount) if it supplied those goods to an unrelated third party; or
• part payment of the sum chargeable by Whitecrow Digital (without discount) if it repaired those goods for an unrelated third party, and
In the case of services:
• the supply of the services again; or
• part payment of the sum chargeable by Whitecrow Digital (without discount) if it supplied those services to an unrelated third party.
Each party warrants that:
• the execution and delivery of this Agreement has been properly authorised;
• it has full corporate power to execute, deliver and perform its obligations under this Agreement;
• this Agreement constitutes a legal, valid and binding obligation of it enforceable in accordance with its terms by appropriate legal remedy;
• this Agreement does not conflict with or result in the breach of or default under any provision of its constitution, or any material term or provision of any law or regulation to which it is a party or subject or by which it is bound;
• there are no actions, claims, proceedings or investigations pending or threatened against it or by it of which it is aware and which may have a material effect on the subject matter of this Agreement.
In addition to the warranties above, Whitecrow Digital warrants that:
• it will exercise reasonable skill, care and attention in providing the Services;
• the Services will not contain any viruses as at the date of activation;
• the Services will be compatible with Internet Explorer 9 and above, and the latest versions of Mozilla Firefox, Google Chrome and Safari.
• other than in relation to material included in the Services by you or any third party from time to time, any use of the Services by you in accordance with this Agreement will not infringe the right of any party and will not breach any applicable law.
In addition you warrant that any material which you cause to be published, displayed or contained with the provided Services will not contain any illegal or unethical material or activity. You warrant that you own copyright or have been granted copyright for all, text, images and materials used.
The relationship between the Client and Whitecrow Digital is important to ensure that the Client’s work is completed efficiently and to the Client’s satisfaction, however, if the relationship breaks down for whatever
reason Whitecrow Digital has the right to immediately cease all work on behalf of the Client without notice and without any liability whatsoever.
Having received notice of the breakdown in the business relationship the client must immediately pay all outstanding monies due to Whitecrow Digital at which point the Client will receive full title to the work completed.
Examples of when a relationship can breakdown include but are not limited to:
• Abusive and Insulting Language
• Unrealistic Demands
• Breakdown in Communication
• Poor Client Co-operation
Retention of Title
Whitecrow Digital retains title to all work carried out on behalf of the Client until paid for in full.
Website Design and Development
1. These are our terms and conditions for Website Design and Development and apply to all contracts and all work undertaken by Whitecrow Digital for its clients.
2. A 50% deposit of the total fee payable under our proposal is due immediately upon you instructing us to proceed with the website design and development work. The remaining 50% shall become due when the work is completed to your reasonable satisfaction but subject to the terms of the “approval of work” and “rejected work” clauses. We reserve the right not to commence any work until the deposit has been paid in full.
3. The 50% deposit is only refundable if we have not fulfilled our obligations to deliver the work required under the agreement. The deposit is not refundable if the development work has been started and you terminate the contract through no fault of ours.
4. You must supply all materials and information required by us to complete the work in accordance with any agreed specification. Such materials may include, but are not limited to, photographs, written copy, logos and other printed material. Where there is any delay in supplying these materials to us which leads to a delay in the completion of work, we have the right to extend any previously agreed deadlines by a reasonable amount.
5. Where you fail to supply materials, and that prevents the progress of the work, we have the right to invoice you for any part or parts of the work already completed.
6. We are pleased to offer you the opportunity to make revisions to the design. However, we have the right to limit the number of design proposals to a reasonable amount and may charge for additional designs if you make a change to the original design specification.
7. Our website development phase is flexible and allows certain variations to the original specification. However any major deviation from the specification will be charged at the rate of $100.00 per hour.
8. Any time frames or estimates that we give are contingent upon your full co-operation and complete and final content and photography for the work pages. During development there is a certain amount of feedback required in order to progress to subsequent phases. It is required that a single point of contact be appointed from your side and be made available on a daily basis in order to expedite the feedback process.
9. On completion of the work you will be notified and have the opportunity to review it. You must notify us in writing of any unsatisfactory points within 7 days of such notification. Any of the work which has not been reported in writing to us as unsatisfactory within the 7-day review period will be deemed to have been approved. Once approved, or deemed approved, work cannot subsequently be rejected and the contract will be deemed to have been completed and the 50% balance of the project price will become due.
10. If you reject any of our work within the 7-day review period, or not approve subsequent work performed by us to remedy any points recorded as being unsatisfactory, and we, acting reasonably, consider that you have been unreasonable in any rejection of the work, we can elect to treat this contract as at an end and take measures to recover payment for the completed work.
11. Upon completion of the 7-day review period, we will invoice you for the 50% balance of the project.
12. You must obtain all necessary permissions and authorities in respect of the use of all copy, graphic images, registered company logos, names and trade marks, or any other material that you supply to us to include in your website or web applications.
13. You must indemnify us and hold us harmless from any claims or legal actions related to the content of your website.
14. Once you have paid us in full for our work we grant to you a license to use the website and its related software and contents for the life of the website.
15. We do not guarantee any specific position in search engine results for your website. We perform basic search engine optimisation according to current best practice.
16. We shall not be liable for any loss or damage which you may suffer which is in any way attributable to any delay in performance or completion of our contract, however that delay arises.
17. To the full extent permitted by law, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise (other than the express provisions of these terms and conditions) relating in any way to the services we provide to you are excluded. Without limiting the above, to the extent permitted by law, any liability of Whitecrow Digital under any term, condition, warranty or representation that by law cannot be excluded is, where permitted by law, limited at our option to the replacement, re-repair or re-supply of the services or the payment of the cost of the services that we were contracted to perform.
18. We reserve the right to subcontract any services that we have agreed to perform for you as we see fit.
19. We (and any subcontractors we engage) agree that we will not at any time disclose any of your confidential information to any third party.
20. You agree to reimburse us for any requested expenses which do not form part of our proposal including but not limited to the purchase of templates, third party software, stock photographs, fonts, domain name registration, web hosting or comparable expenses.
21. You are responsible for maintaining your own backups with respect to your website and we will not be liable for restoring any client data or client websites except to the extent that such data loss arises out of a negligent act or omission by us.
22. The agreement constituted by these terms and conditions and any proposal will be construed according to and is governed by the laws of New South Wales. You and Whitecrow Digital submit to the non-exclusive jurisdiction of the courts in and of Tasmania in relation to any dispute arising under these terms and conditions or in relation to any services we perform for you.
23. By using current versions of well supported content management systems such as “Wordpress”, we endeavour to ensure that the web sites we create are compatible with all current modern web browsers such as the most recent versions of Internet Explorer, Firefox, Google Chrome and Safari. Third party extensions, where used, may not have the same level of support for all browsers. Where appropriate we will substitute alternative extensions or implement other solutions, on a best effort basis, where any incompatibilities are found.
24. You are responsible for complying with all relevant laws relating to e-commerce, and to the full extent permitted by law will hold harmless, protect, and defend and indemnify Whitecrow Digital and its subcontractors from any claim, penalty, tax, tariff loss or damage arising from your or your clients’ use of Internet electronic commerce.
Search Engine Optimisation
The following terms relate to the supply of search engine optimisation (SEO) services (“the Services”) by Whitecrow Digital (“the Company”) to you (the “Client”) for your website URL (the “Website”).
1. The Company agrees to provide the Client with the Services and is authorised to use the Key Phrases to attempt to improve the ranking of and/or positioning of the Website within the Search Engines.
2. The client acknowledges and agrees that:
a. If work is delayed through no fault of the Company, no refund or compensation will be offered.
b. This also applies in the following circumstances:
i. If changes are made to the Website by other parties that adversely affect the search engine rankings of the Website (as determined by the Company); or
ii. If the Website is offline due to a reason not caused by the Company.
3. The client agrees that this agreement shall continue for the “term” from the date of this agreement. Either party may terminate this agreement by giving each other one month’s written notice.
4. Payments may be made monthly by direct debit or invoice and terms are strictly 7 days. The first payment is required upfront for the campaign to begin.
5. There are no refunds available on services provided by the Company.
Partner Program – Referrals
“Company” Whitecrow Digital
“Affiliate” Person or Business Signed Up To Partner Program
”Company” agrees to provide website services to the clients/contacts referred by the “Affiliate”.
“Affiliate” acknowledges the following with respect to services:
The “Company” will confirm pricing, design, hosting, and website details directly with the Client/contact referred by the “Affiliate”.
The “Company” has no control over the policies of Search Engines & Third Party Marketing Systems with respect to the type of websites and/or content that they accept now or in the future.
The “Affiliate” acknowledges that the “Company” makes no warranty that the services will generate any increase in sales, business activity, profits or any other form of improvement for Client/contact referred by the “Affiliate”.
The “Affiliate” can refer the Client/contact to the “Company” only once in any 2 year period.
The “Company” will pay commission only on the first website sale of referred Client/contact.
The “Affiliate” agrees to repay the “Company”, using future commissions, if a Client/contact disputes a direct debit payment and is reimbursed by their bank after the payment date, at any time in the future.
“Company” agrees to pay a commission as advised prior to Affiliate sign up as a percentage of the actual sold Package Price amount (excluding hosting, excluding additional services) charged to the Client/contact referred by the “Affiliate”. This is payable as a lump sum at the end of month following the “Company” being paid in full.
Obligations of the “Company” & “Affiliate”.
“Company” will perform all agreed services.
“Company” will provide ongoing account support to the Client/contact referred by the “Affiliate”.
No liability whatsoever (except as provided by law) will be accepted by the “Company” for any damages or losses arising from or as a consequence of the provision of the Services or any other act or default on the part of the “Company” or of any servant, agent or contractor of the “Company” in relation to this agreement and the Services unless the same occurs because of the negligence of the “Company”, its servants, agents or contractors in which case liability is limited to supplying the services . Nothing in this agreement is intended to limit or exclude any liability on the part of the “Company” where and to the extent that applicable law prohibits such exclusion or limitation.
“Affiliate” will keep client/contract, customer data and payment details confidential.
The “Affiliate” will indemnify the “Company” against all claims, demands, liabilities, damages, costs and expenses resulting from or connected with any claim of infringement arising out of the provision of services by the “Company”
Agreement can be cancelled at any time with 1 months’ notice by either party.
This agreement is subject to the jurisdiction of the State of New South Wales, Australia and the parties irrevocably submit to the jurisdiction of the courts of the State of New South Wales.