Terms & Conditions of Service
1. Provision of Services
1.1 DIGITAL DEALER. Mailing address PO BOX 2265, TOOWONG QLD 4066 AUSTRALIA - ABN 37 098 105 965 will provide you with the services set out in your confirmed Digital Marketing Proposal. Only those services mentioned will be provided by DIGITAL DEALER and any amendments, add ons or schedule changes must be agreed to in writing. This and the following clauses are the General terms and conditions on which those services are supplied and together with proposal form the total agreement between us.
1.2 By posting updated versions of the Terms & Conditions of Service on the Digital Dealer website, or otherwise providing notice to you, Digital Dealer may modify the terms of this Terms & Conditions of Service and may discontinue or revise any or all other aspects of the Services at its sole discretion. All such changes shall become effective upon posting of the revised Terms & Conditions of Service on the Digital Dealer website. Your continued use of the Services will constitute your acceptance of the variation to the Terms & Conditions of Service. Digital Dealer will use reasonable efforts to make you aware of any changes to the terms of this Terms & Conditions of Service. If you elect to discontinue using the Services due to any changes to the Terms & Conditions of Service made under this section 1, please let us know immediately.
1.2. Restrictions and Responsibilities
1.2.1 This is an Agreement of Service for the Services, and you are not granted a licence to any software under this Terms & Conditions of Service (except to the extent required for you to use the Services). Except to the extent that applicable laws prevent Digital Dealer from doing so, you will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services or any software, documentation, or data related to the Services (“Software”); remove any proprietary notices or labels from the Services or any Software; reproduce or copy the Software or the Services or any part thereof; modify, translate, or create derivative works based on the Services or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software. The Services shall be used for your business (which includes civic or charitable) purposes only and you shall not use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party. The prohibition against modifying, translating, reverse engineering, decompiling, disassembling or creating derivative works based on the Services or the Software does not affect your rights under any legislation implementing the Legal Protection of Computer Programs or the Australian Copyright Act 1968 (Cth).
1.2.2 You acknowledge and agree that the Services, the Software, the Digital Dealer company names and logos and all related product and service names, design marks and slogans, and all other material comprising the Software or the Services, are the property of Digital Dealer or its affiliates or suppliers (collectively, the “Marks”). Unless stated otherwise, all Marks are protected as the copyright, trade dress, trademarks and/ or other intellectual properties are owned by Digital Dealer or by other parties that have licensed their material to Digital Dealer. You are not authorised to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of Digital Dealer. Your use of the Services confers no title or ownership in the Services, the Software or the Marks and is not a sale of any rights in the Services, the Software or the Marks. All ownership rights remain in Digital Dealer or its third party suppliers, as the case may be.
2. Warranties, Dislcaimer and Remedies
2.1 USE OF THE SERVICES AND ANY RELIANCE BY YOU UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, Digital Dealer DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ACCURATE OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND TO THE EXTENT PERMITTED BY LAW Digital Dealer DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Your sole and exclusive remedy for any failure or non performance of the Services shall be for Digital Dealer to use commercially reasonable efforts to adjust or repair the Services, or where such adjustment or repair is not feasible, for Digital Dealer to either (at its discretion) perform the Services again or provide you with a refund for the amount you actually paid to Digital Dealer for the relevant Services.
2.2 You acknowledge that websites and other digital marketing productions cannot be guaranteed to be 100% error free in construction and/or 100% secure, and acknowledge that the existence of errors falling short of a complete failure of consideration in the site shall not constitute a reason to terminate this agreement.
2.3 LIMITATION OF LIABLIITY: TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL Digital Dealer OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS “Digital Dealer “) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS OR DAMAGE (INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF DATA, OR FAILURE TO REALISE ANTICIPATED SAVINGS OR BENEFITS OR BUSINESS OPPORTUNITIES), OR FOR ANY CLAIM BY ANY OTHER PARTY.
Digital Dealer’S EXCLUSION OF LIABILITY APPLIES WHETHER THE CLAIM IS IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE) OR EQUITY AND EVEN IF Digital Dealer HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
YOU AGREE THAT Digital Dealer’S LIABILITY TO YOU AT LAW WILL BE REDUCED BY THE EXTENT, IF ANY, TO WHICH YOU CONTRIBUTED TO THE LOSS.
IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, Digital Dealer IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), TO THE FULLEST EXTENT PERMITTED BY LAW THE LIABILITY OF Digital Dealer TO YOU WILL BE LIMITED TO:
(A) IN THE CASE OF GOODS, NIL; AND
(B) IN THE CASE OF SERVICES, THE SUPPLYING OF THE SERVICES AGAIN OR REFUND OF FEES ACTUALLY PAID FOR THE SERVICES.
3. Intellectual Property
3.1 All creation files and works authored by Digital Dealer and its contractors remain the property of Digital Dealer.
3.2 Digital Dealer retains the Copyright in and the right to use all artwork and source code created in advancing the profile of Digital Dealer and to be recognised for artwork and source code created by Digital Dealer.
3.3 Digital Dealer shall be free to reproduce, use, disclose display exhibit, transmit, perform, create derivative works, and distribute any item from your Web Page unless specifically agreed otherwise. Further, Digital Dealer shall be free to use any ideas concepts know-how or techniques acquired in construction of sites for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products and other items incorporating such information unless specifically agreed otherwise.
3.4 Any works authored by Digital Dealer, including but not limited to code, artworks, graphics, digital advertisements, developed by Digital Dealer or our contractors including HTML markup, Flash and multi media including audio and video, database design and development, data collection and web based administration are licensed to the client for use in their own single website or other digital marketing campaign. It cannot be copied, reused or resold without the written permission of Digital Dealer. Graphics created for use in the proposed website cannot be re-used in any other website or for other promotional media including brochures, press or other advertisements without our express written permission and/or additional fees.
3.5 The licensing for any server side programs and scripts, scripts and data to be held on a web server and run by an approved Digital Dealer web hosting supplier, such scripts are strictly the copyright of Digital Dealer and all rights are reserved.They must not be edited, copied or transferred to another server without the express written permission of Digital Dealer.
4.1 Digital Dealer may discontinue services if an amount payable to Digital Dealer is overdue or take down a website permanently in any case where an amount payable is overdue by more than 50 days. In any such event, you remain liable for the total cost of the contract including all disbursements; unless otherwise agreed between the parties.
4.2 If you down the track decide you no longer wish to work with Phase, the implications are:
• We ask that you give us at least 1 month’s notice.
• Digital Dealer retains all intellectual property rights, including but not limited to the source and object codes of the software in any websites (Code) in relation to anything we produce in the course of our engagement. You will have a non-exclusive, royalty free licence to use the Code on your website as long as you remain our client. You may not make any amendments and/or modifications to the Code at any time, including during the licence period. If you wish to use another web developer’s services or web hosting service, we will negotiate in good faith to expand the terms of your licence to retain for you the right to use, but not modify or amend the Code.
4.3 You may terminate this Terms & Conditions of Service at any time by contacting us or by sending written notice to Digital Dealer. Correspondence must include your first name, last name, and your Company name.
4.4 Digital Dealer may terminate this Terms & Conditions of Service or the Services at any time with or without cause, and with or without notice. Digital Dealer shall have no liability to you or any third party because of such termination.
4.4 Digital Dealer may delete any of your archived data within 30 days after the date of termination. Any statutory retention requirements with respect to your business correspondence remain your responsibility. All sections of this Terms & Conditions of Service which by their nature should survive termination will survive termination, including, without limitation, ownership, warranties, disclaimers and limitations of liability.
5. Digital Marketing
5.1 You represent, covenant, and warrant that you will use the Services only in compliance with this Terms & Conditions of Service and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation). You agree that you will not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited email to any third party. You hereby agree to indemnify and hold harmless Digital Dealer against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise arising from or relating to your use of the Services. You acknowledge that you are responsible for the content of any emails or messages sent using the Services. Although Digital Dealer has no obligation to monitor the content provided by you or your use of the Services, Digital Dealer may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.
5.2 The Services may only be used for lawful purposes. Transmission or solicitation of any material that violates Australian or other laws that may apply in your local area is prohibited. This may include material that is obscene, threatening, harassing, libelous, or in any way a violation of intellectual property laws or a third party’s intellectual property rights.
5.3 Digital Dealer will not use any of your subscriber lists or any other customer information for any other purposes than those related to the Services. Your customer information will not be shared with any other parties. In addition, Digital Dealer will not use your customer information for the purpose of sending unsolicited commercial email.
5.4 You will adopt and maintain a policy that complies with all applicable privacy laws. You acknowledge that all personal information that you provide to us has been collected with the relevant individual’s consent, and that you have informed the individual of the purpose for which that information was collected, and that you may provide this information to us for the purposes of use in relation to the Services. You acknowledge that we may store the personal information that you provide to us on servers, and you warrant that you have obtained the consent of the relevant individuals to the storage and transmission of their personal information in this manner.
5.5 You must not use the Services to distribute illegal contests, pyramid schemes, chain letters, multi-level marketing campaigns, or any other prohibited material.
5.6 You must not use the Services to send email campaigns that link to or display nudity, obscene content, gambling related content, pharmaceutical related content, illegal software, viruses, or to distribute any other content that we deem inappropriate.
5.7 You must not use the Services for the sending of unsolicited email (sometimes called “spam”). See our Anti-Spam Policy (which forms part of this Terms & Conditions of Service) for further information.
5.8 It is understood that Digital Dealer makes no guarantee that HTML messages will be rendered properly on all recipients’ email programs, due to the wide variety of HTML generation tools available. Digital Dealer makes every reasonable attempt to make sure that all email messages sent follow email standards, but we cannot guarantee that messages will look consistent across all email platforms due to the number of different HTML composition tools available.
5.9 The Services may contain materials produced by third parties or links to other websites. Such materials and websites are provided by third parties and are not under Digital Dealer’s direct control and Digital Dealer accepts no responsibility or liability in respect of any such third party materials or for the operation or content of other websites (whether or not linked to the Services). You acknowledge that Digital Dealer is entitled to require you to remove any link from another website to the Services which you install without obtaining Digital Dealer’s prior written consent.
5.10 Compliance rules for sending email (and your spam indemnity)
All Digital Dealer customers must follow the rules of the Australian Spam Act 2003 (Cth) (and equivalent anti-spam legislation in all applicable countries) and Digital Dealer’s Anti-Spam policy when sending emails through the Services. We require the following (among other things) of all email messages sent through the Services:
5.10.1. All emails must contain an “unsubscribe” link or other mechanism that allows subscribers to remove themselves from your mailing list. Each such link must remain operational for a period of thirty (30) days after the date on which you send the message, and must be in form and substance satisfactory to Digital Dealer. You acknowledge and agree that you will not remove, disable or attempt to remove or disable either link. Digital Dealer scans every campaign for the existence of an unsubscribe link. If an unsubscribe link is not detected, you will be informed and required to include an unsubscribe link before continuing.
5.10.2. All emails must contain non-Internet contact information of the sender or the entity on whose behalf the email was sent, such as that entity’s address or phone number.
5.10.3. All emails must state the reason the recipient is receiving the message. For example, “You are receiving this message from ABC Company because you signed up for our email list at www.abc.com.”
5.10.4. All emails must be compliant with any disclosure requirements that apply to the sender.
These 4 guidelines will help ensure that Digital Dealer maintains its reputation and white-listing status with a number of major ISPs and whitelisting programs. If at any time your campaign is flagged as spam by a recipient, Digital Dealer reserves the right to cancel your account without notice. For further information in relation to spam, please read our Anti-Spam Policy (which forms part of this Terms & Conditions of Service, including your spam indemnity).
5.11 Email and Permission Practices
Please see the ACMA website for further information.
5.11.1 You agree to import, access or otherwise use only permission-based lists (note: purchased lists may not be used).
5.11.2 You cannot mail to distribution lists, newsgroups, or spam email addresses.
5.11.3 You are responsible for monitoring, correcting, processing unsubscribe requests within 5 days, and updating the email addresses to which messages are sent through your Digital Dealer account.
5.11.4 Emails that you send through the Services may generate abuse complaints from recipients. You are responsible for ensuring that your email campaigns do not generate a number of abuse complaints in excess of industry norms. Digital Dealer, in its sole discretion, shall determine whether your level of abuse complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Terms & Conditions of Service.
5.11.5 Digital Dealer, at its own discretion, may immediately cease the Services without refund if Digital Dealer believes in its sole discretion that you have violated any of the email and permission practices listed above, or our Anti-Spam Policy.
6. Website and Email Hosting
6.1 Website and Email hosting is done by external companies for all material developed by Digital Dealer.
6.2 Please note that Digital Dealer accepts no responsibility for delays or down time, breakdowns or data loss caused by Internet Service Providers (ISPs)
7.1 If any of these terms and conditions (or part of them) is void or unenforceable, it is taken to be removed and no longer forms part of the Agreement between us. The remaining terms and conditions remain in full force and effect.
7.2 Written communications between us may take the form of letters, formal documents, faxes or emails.
7.3 Use of the Services: You will not violate or attempt to violate the security of our website or the Services. You will not hack into the website, Digital Dealer’s computer systems or the computer systems of other users of the Services. Hacking means unauthorised access, malicious damage and/or interference and includes, without limitation, mail bombing, propagating viruses, worms or other types of malicious programs, deliberate attempts to overload a computer system, broadcast attacks or any other method designed to damage or interfere with the operation of a computer system or website.
7.4 Website and Services availability: From time to time down-time, either scheduled or unscheduled, may occur. Digital Dealer will work within reason to ensure this amount of down-time is limited. Digital Dealer will not be held liable for the consequences of any down-time. Digital Dealer cannot guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used. You assume all risk of use of all programs and files associated with the Services, and you release Digital Dealer entirely of all responsibility for any consequences of its use.
7.5 Force Majeure: Digital Dealer will not be liable by reason of the failure in the performance of obligations under this Terms & Conditions of Service by reason of strikes, riots, fire, explosions, acts of God, war, governmental action, or any other cause which is beyond Digital Dealer’s reasonable control.