Terms and Conditions
These Terms and Conditions will apply to the supply of Services of Mobile Data Solutions Pty Ltd t/a Lawson Digital (ABN 52 091 624 396). Lawson Digital reserves the right to vary these terms by mutual agreement in writing between both parties.
1. PROVISION OF SERVICES
1.1 Provision and Acceptance of Estimates
1.1.1 Provided that we receive an acknowledgement and order confirmation of an Estimate within 30 days of receipt by you, we will provide the Services in accordance with the Estimate.
1.1.2 Subject to clause 1.1.1, following confirmation of our engagement, we will have no obligation to perform any task or Services on your behalf unless it is expressly set out in the Estimate or otherwise agreed in writing by us.
1.2 Content Ownership and Security
1.2.1 We retain ownership of any content, and the intellectual property and rights attaching to same, developed by us on your behalf, until such time as payment of all amounts owed to us as set out in the applicable Estimate are received. Upon receipt of such amounts, all right, title and interest in any content developed by us on your behalf will automatically be assigned from Lawson Digital to you, including source files and codes developed by Lawson Digital on your behalf.
1.2.2 You will be responsible for maintaining backups of your website and any customer data which is generated from your website marketing.
1.2.3 You will be the owner of, and responsible for, all images purchased and displayed on your website (with the exception of content developed by Lawson Digital ownership of which shall be dealt with in accordance with clause 1.2.1).
1.3 Search Engine Optimisation (SEO)
1.3.1 Subject to clause 1.1.1, while we will try to improve the position of your website in Search Engine results in response to a search request, we do not warrant that this effort is in any way guaranteed. You acknowledge that our SEO services are focused primarily on achieving improvements in the position of your website when undertaking certain key word searches using the Google Search Engine.
1.3.2 You acknowledge that, unless the Estimate provides for exclusive dealing, Lawson Digital may at its discretion offer SEO services to businesses in competition with you and/or businesses in the same or a similar industry as you.
1.3.3 We do not guarantee, warrant or represent that a higher ranking of your website in Search Engine results will result in increased traffic to your site and/or increased sales.
1.3.4 We use paid and free methods in an attempt to raise the ranking of your website in Search Engine results. We disclose, and you acknowledge, that without notice Search Engines, in particular Google, can devalue a particular method which may lead to a lower ranking of your website in Search Engine results. We cannot be held responsible for a lower ranking of your website in Search Engine results.
1.4 Pay Per Click Advertising (PPC)
1.4.1 Subject to clause 1.1.1, we will manage your PPC budget
1.4.2 Payment of the PPC budget will be made by you directly to the Search Engine provider, in particular Google, and you indemnify us from all such claims.
1.4.3 We do not guarantee, warrant or represent that PPC will result in increased traffic to your website and/or increased sales.
1.4.4 We will not be responsible for any errors or miscalculation of fees made by Google or other Search Engines.
1.4.5 To terminate your PPC campaign you must provide us with at least two (2) working days notice in writing. You will be liable for any fees incurred during the notice period.
1.4.6 We will not be responsible for any loss of your PPC budget due to downtime of your website or hosting provider.
1.5 Social Media
1.5.1 Subject to clause 1.1.1, if requested we shall assist you to promote your brand through social media platforms such as but not limited to Facebook, Instagram, Twitter, YouTube, Pinterest or LinkedIn.
1.5.2 Payment of social advertisements will be made directly to the specific social platform and you indemnify us from all such claims.
1.5.3 We will also provide Advertising Management as per the Estimate.
1.5.4 We do not guarantee, warrant or represent that Social Media Services will result in increased traffic to your website and/or increased sales and/or increased media reach.
1.5.5 We will not be responsible for any errors or miscalculation of fees made by any social media platform.
1.5.6 To terminate our Social Media Services you must provide us with at least thirty (30) working days’ notice in writing.
1.6 Conversion Rate Optimisation (CRO)
1.6.1 Subject to clause 1.1.1, we shall seek to optimise the conversion rate of your website.
1.6.2 You acknowledge that while we try to optimise the conversion rate of your website, we do not warrant that this effort is in any way guaranteed unless expressly stated within the Estimate.
1.7 Email Marketing
1.7.1 Subject to clause 1.1.1 we will provide Email Marketing Services and will ensure that in the provision of Email Marketing Services:
a) the services including any emails prepared by us will comply with all applicable laws, and codes of practice governing the use of internet and related services, including, without limitation, data privacy and spam laws;
b) we will keep secure any of your Confidential Information and will notify you immediately of any known or suspected unauthorised use of or access to your Confidential Information, or any or suspected breach of security related to the Services.
1.8 Marketing Strategy
Subject to clause 1.1.1, we will use our best endeavours to develop a suitable marketing strategy for you, however, unless expressly stated in any Estimate, we do not guarantee, warrant or represent that our marketing strategy will result in increased traffic to your website and/or increased sales and/or in you achieving any marketing or other goals you may have.
2. EXCLUSION AND LIMITATION OF LIABILITY
2.1 With the exception of any warranties that are unable to be excluded either at law or under Statute, all conditions and warranties, whether express or implied and whether arising under legislation or otherwise, as to the condition, suitability, quality or fitness of the Services are expressly excluded.
2.2 Without limiting the generality of clause 2.1, we expressly provide no warranty in relation to:
a) the Services will be error free or free from interruption failure; and
b) system and/or service availability, accessibility or performance.
2.3 The liability of Lawson Digital is:
a) for a breach of a condition or warranty implied by law, Statute or otherwise, and which cannot be excluded; and
b) in respect to any other Losses suffered or incurred by you or any person or entity related to or associated with you arising out of or in connection with performance of the Services; will be limited to any one of the following as determined by Lawson Digital:
c) the supplying of the Services again; or
d) the payment of the cost of having the Services supplied again.
2.4 In relation to the supply of Services pursuant to this Agreement, these Terms and Conditions will not be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying all or any of the provisions in Chapters 2 and 3 of the Competition and Consumer Act 2010 – Schedule 2; or any other provisions of that Act; or any other Act of the Commonwealth of Australia; or of any State or Territory of the Commonwealth of Australia which by law cannot be excluded, restricted or modified.
2.5 You indemnify, on a full indemnity basis, and agree to keep indemnified, Lawson Digital from all Losses suffered by Lawson Digital directly arising as a result of the provision of the Services including but not limited to any Losses arising from any action, claims, demands or suits commenced or made against Lawson Digital by any third party.
3. GENERAL TERMS AND CONDITIONS
We shall use reasonable endeavours to provide continuing availability of the Services but we shall not, in any event, be liable for Service interruptions.
3.2 Property Rights and other consents
You are solely responsible for obtaining any and all necessary consents and authorisations in relation to all material, images and content whatsoever that appears on or is used in your website including without limitation in respect of your proposed domain name, logos, pictures, text, merchant services agreements and any other information you provide to us.
3.3.1 Subject to any fixed term as set out in the Estimate, either party may terminate this Agreement by giving thirty (30) days written notice to the other party. In the event you terminate this Agreement without cause, this Agreement is terminated by us pursuant to either clause 3.3.2 or 3.3.3, during a fixed term period, then you will be liable to pay us on demand the aggregate of:
a) all unpaid fees pursuant to the Estimate to the date of the termination of this Agreement together with any monies which are payable to Lawson Digital pursuant to the Terms and Conditions hereof and;
b) the balance of fees payable from the date of the termination to the end of the initial term which would have been payable had the Agreement not be terminated. You acknowledge the monies payable under this sub clause 3.3.1 represents a true and accurate assessment of our liquidated damages arising from any termination of this Agreement (as set out in this clause) during the fixed term period.
3.3.2 We may terminate this Agreement immediately by notice in writing to you if you fail to make payments in regards to the Services to us as and when they fall due and you fail to rectify the failure to pay within five (5) working days from receipt of notice from us requesting rectification.
3.3.3 We may terminate this Agreement immediately by notice in writing to you if you:
a) are in breach of any of these Terms and Conditions and you fail to rectify such breach within five (5) working days from receipt of notice from us
requesting rectification of same; or
b) you are in breach of clause 3.6 of these Terms and Conditions; or
c) if you are a company and you go into liquidation, administration or receivership; or
d) if you are a person and you are declared bankrupt.
3.4.1 Subject to any increase in accordance with clause 3.4.2, all fees payable by you to us for the Services shall be as outlined in the Estimate and shall be due and payable within seven (7) days of receipt of our invoice in relation to such Services. For the purposes of clause 1.2.1, the payment of your final instalment as set out in your Estimate will trigger the automatic assignment from Lawson Digital to you of the right, title and interest in all the intellectual property and content contained on your website as provided for in 1.2.1.
3.4.2 We reserve the right to increase our fees for provision of the Services from time to time by giving you a minimum of thirty (30) days written notice, provided that should such notice be given during a fixed term period you will be entitled to terminate this Agreement by giving thirty (30) days written notice and should you not agree to the increased fees.
3.4.3 The provision, or continued provision, by us of the Services is contingent upon our receipt of payment in full from you in accordance with the applicable Estimate. Without prejudice to any other rights and remedies we may have, we reserve the right to suspend the provision of the Services to you in the event of late payment of any amounts owed by you to us.
3.4.4 In the event that any amount has not been paid by you as it falls due in accordance clause 3.4.1 (“Due Date”), interest on the outstanding amount will be payable by you in accordance with this clause
3.4.5. Such interest shall accrue on the outstanding amount from time to time at the rate of ten percent (10%) per annum from the Due Date until the outstanding amount is paid to Lawson Digital in full, such interest to be calculated on a daily basis and paid monthly in arrears. For the avoidance of doubt, the first of such interest payments will be due one month after the Due Date, or as otherwise directed by Lawson Digital.
3.4.6 In addition to interest payable pursuant to clause you will be liable, and you agree to immediately reimburse Lawson Digital upon demand, for any costs incurred by Lawson Digital in relation to collection of any outstanding amounts owed by you to us including but not limited to legal costs.
3.4.7 In addition, to the extent of any outstanding amounts, you grant us a security interest over your business assets (defined as personal property in the Personal Property Securities Act 2009) pursuant to the interest created by these Terms and Conditions.
3.4.8 Unless otherwise stated in the Estimate the Customer is required to pay any GST payable by Lawson Digital in respect of the Services at the same time payment to Lawson Digital is required for its fees.
3.5 Consent to Link to Website
Unless you expressly request otherwise, Lawson Digital may free of charge insert a hyperlink on your website to a website hosted by Lawson Digital which describes the services provided by Lawson Digital and you consent to such hyperlink being inserted on your website.
If any clause of these Terms and Conditions is held to be invalid and/or unenforceable in whole or in part, the invalid or unenforceable shall be deemed to be omitted.
The benefit of the Agreement may be assigned by us. You may not assign the Agreement or otherwise transfer the benefit of this Agreement or a right or remedy under it, without our prior written consent. Such consent not to be unreasonably withheld or delayed.
3.8 Change to Terms
We may change the Terms and Conditions at any time by providing you thirty (30) days notice in writing setting out details of the change, provided that should such change be notified during a fixed term period and you should be entitled to terminate this Agreement with thirty (30) days notice should you not agree to the amendment.
3.9 Entire Agreement
These Terms and Conditions together with the Estimate, constitute the entire agreement with you, and supersede all prior agreements, understandings representations whether oral or written. No oral explanation or information given by any party shall alter the interpretation of these terms and conditions.
3.10 Governing Law
This agreement shall be governed by the laws in force in the state of Victoria, Australia. Both parties hereby submit to the exclusive jurisdiction of the Courts of that State.
In the event of any inconsistency between the Terms and Conditions found herewith and those contained in the Estimate, the Terms and Conditions of the Estimate will prevail.
Any failure or delay to exercise a power or right by us under these Terms and Conditions does not operate as a waiver of that power or right unless it is signed in writing.