Welcome to the APN Australian Regional Media Digital Solutions provided to you by APN Newspapers Pty Ltd (ABN 21 009 657 943) of Level 3, 33 Park Road, Milton, Queensland, 4064 Australia (acting for itself and as agent for any of its related bodies corporate who own any copyright in the website templates) (“ARM”, “we”, “our” or “us”).
These Digital Solutions Terms and Conditions govern the sale of all products and services as set out in the Order Form (“Services”). By completing and signing the Order Form, accessing the Service, or purchasing any Services the Customer agrees to be legally bound by:
(a) the Order Form attached as a cover page to these terms and conditions;
(b) the terms and conditions which are set out below;
(c) the APN ARM Digital Solutions Product Specifications which is incorporated here by reference; and
(collectively, the Agreement)
(a) ARM will provide the Services specified by the Customer on the Order Form and described in the APN ARM Digital Solutions Product Specifications. If the Customer requires services outside the scope of the Services set out in Order Form, the Customer may contact ARM. Additional fees will apply for such additional services and must be agreed in writing before additional services are performed.
(b) ARM will provide the Services to the Customer on the terms and conditions of this Agreement until the Agreement is terminated in accordance with this Agreement.
(c) ARM will use its reasonable endeavours to ensure that any website hosted as part of the Services is available at all times. However, as the Services depend on the internet, ARM cannot and does not warrant that the Services will be continuous, fault free or available 24 hours a day [or that any fault will be corrected within a specified timeframe. Customer agrees that it will back up all Content and other material hosted as part of the Services.
(a) The Customer acknowledges that delivery dates provided by ARM in the Order Form are provided as estimates of expected delivery only and various factors, including your assistance, may affect the actual delivery date. ARM will provide you with notice of any changes to the delivery dates. You agree ARM is not liable for failure to deliver by an expected delivery date. ARM reserves the right to deliver the Services in instalments.
4. FEES AND PAYMENT TERMS
(a) In consideration for provision of the Services the Customer will pay ARM the Digital Solutions Setup Fee and the Website and/or Video Licensing, Support and Hosting Fee (together “the Fees”) as set out in Order Form.
(b) Customers that do not have an existing ARM account
will be required to pay: (i) the Digital Solutions Setup Fee (as set out in the Order Form) by direct debit at the time of signing this Agreement; (ii) the Website and/or Video, Licensing, Support & Hosting Fee monthly in advance on an automatic debit basis. The automatic debit payments begin on the date the Customer’s website is published on the internet and continue to be automatically debited on the same date each month until this Agreement is terminated in accordance with its terms. New Customers will receive a Tax Invoice for all payments.
(c) For existing ARM Customers the Digital Solutions Setup Fee and the Website and/or Video, Licensing, Support & Hosting Fees will be invoiced monthly in advance and will be paid within 7 days of receipt of a valid Tax Invoice. Unless otherwise set out in this Agreement or required by law, fees charged on a prepay basis are non-refundable.
(d) If the Customer does not pay any amount due under this clause 4 within the required time, ARM may charge a late fee on that amount at the Late Fee Rate calculated daily for each day that the amount remains unpaid. Failure to make a payment within 30 days of its due date may result in your website, videos and/or emails being suspended.
(e) If Tax is required to be deducted from any payment made to ARM the payment shall be increased by such amount as is necessary to provide ARM with an amount (after the deduction of Tax), equivalent to the amount payable to ARM under this agreement before any such deduction of Tax.
(f) ARM reserves the right to change prices of the Services from time to time. Change in price will not apply to any prepayments made by a Customer that have been accepted by ARM. The changes will apply to any new Services requested by a Customer on and from the date of the change, and will apply to existing Services 30 days after the change is notified to Customers in writing.
(g) If ARM is required to employ the services of a debt collector to pursue any overdue balance payment, an administration fee will be passed on to the customer and added to the customer's invoice.
(h) If the Customer’s website has been terminated due to cancellation, expiry or termination of this Agreement other than as a result of fault on the part of ARM, and the Customer wishes to have the website reinstalled, ARM can reinstall the website at a cost of $195AUD + GST and providing the client has a backup of the website and asks for it to be reinstalled within 12 month months of the website being terminated.
5. CUSTOMER RESPONSIBILITIES AND OBLIGATIONS
(a) The Customer must provide ARM with information and other assistance as reasonably required by ARM within 7 days of ordering the Services to enable ARM to provide the Services within the required timeframe. During the creation phase of a Customer’s project, if the Customer does not sign off on their website design, video script or draft copywriting within a 3-day period from the date of receipt of such sign off requests, the project will be deemed automatically signed off and the website will be published.
(b) The Customer must:
(i) be responsible for ensuring all content on their website is accurate and up-to date;
(ii) be responsible for any data owned or provided by the Customer that is stored on the ARM system or any data transmitted or caused to be transmitted on the Customer’s website or over the Internet;
(iii) comply with the licence terms and conditions of any software supplied to the Customer by ARM;
(iv) keep its password and user account details confidential and not disclose same to any other party; and
(v) comply with all relevant legislation or regulations (including without limitation the Competition and Consumer Act 2010 (Cth)).
(c) The Customer must not:
(i) upload, download, copy or store any malware or other malicious software or otherwise interfere with the Service provided by ARM or disrupt any other user, service or equipment of ARM;
(ii) use the Services in unauthorised or dangerous purpose;
(iii) upload, download, copy, store or publish any material unless Customer is the Intellectual Property Right owner of such material or has the authority of the owner to do so;
(iv) engage in, foster, or promote illegal, abusive, or irresponsible or abusive behaviour;
(v) publish, display or transmit via the data centres’ network and equipment any content or links to offensive content; or
(vi) publish any pornography, nudity and sex-related goods and services of any sort, including links to websites containing such material.
(d) The Customer acknowledges that ARM does not and cannot monitor or control the content and information accessed via the Internet and shall not hold ARM responsible in any way for any content or information accessed via the Internet.
6. ARM RIGHTS
ARM may in its sole discretion, without notice or giving any reason or incurring any liability for doing so:
(a) suspend the Service and shut down the website if the Customer is in breach of this Agreement, including but not limited to clause 4 (b) ];
(b) delete any material found on its equipment or systems and/or refuse to publish any material which is, in ARM’s opinion: unauthorised, illegal or possibly illegal, unlawful, obscene, infringes any Intellectual Property Right of any third party, defamatory or excessive in volume;
(c) take action if it suspects that malicious, illegal or unacceptable usage of the Services is occurring or has occurred.
7. EXCLUSIONS AND LIMITATION OF LIABILITY
You may have rights and remedies under the Australian Consumer Law and similar laws in relation to the supply of the Service. This clause 7 is subject to and does not exclude or limit any of those rights or remedies.
(a) Your access or use of the Service is at your own risk. As the Services rely on the internet, we do not give any commitment in relation to the security, reliability, timeliness and performance of the Services and any of its functions. You acknowledge that nothing in this agreement constitutes an express or implied warranty or guarantee that:
(i) the Service will be error free or uninterrupted;
(ii) that the Services will be free from viruses or persons having unauthorised access (hackers) to the services or systems of ARM or its subcontractors.
(b) To the extent permitted by law, ARM is not responsible for, without limitation:
(ii) any interruption to the Services due to, without limitation, equipment or software failure of the Customer;
(iii) the supply or maintenance of the Customer’s equipment or software, which continues to be the Customer's responsibility;
(iv) monitoring, controlling or ensuring the accuracy, appropriateness of content of any information or material on the Customer’s website and does not do so;
(v) errors, defects, omissions, delays in operation or transmission, or any other failure of performance of the website, servers or the software;
(vi) loss of data caused by factors outside our reasonable control;
(vii) any failure by ARM to perform the Services caused by acts beyond the reasonable control of ARM; and
(viii) links to any third party sites.
(c) To the extent permitted by law, ARM is not liable to the Customer or any other person, and the Customer releases ARM and its officers, employees, subcontractors and related bodies corporate for any costs, loss, liability or claim whether direct, indirect or consequential arising out of this agreement and any items listed in paragraph (b) of this clause.
(d) To the extent permitted by law and subject to 7.1(c), the Customer further agrees that the aggregate liability of ARM for any damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) shall not exceed the actual dollar amount paid by the Customer for the Service which gave rise to such damages, losses and causes of actions.
(e) Where ARM cannot exclude liability under this Agreement but can limit that liability, APN’s liability is, to the extent permitted by law, limited to any one or more of the following (at APN’s option):
(i) in the case of the supply of goods under these Terms and Conditions (if any): (A) the replacement of the goods or the supply of equivalent goods or the payment of the cost of replacing the goods or acquiring equivalent goods;
(B) the repair of the goods or the payment of the cost of having the goods repaired; or
(ii) in the case of the supply of services under these Terms and Conditions:
(A) the supplying of the services again; or
(B) the payment of the cost of having the services supplied again.
(f) The Customer indemnifies ARM and its officers, employees, advisers and related bodies corporate against all liability, claim, action, suit, demand, loss, cost or expense arising out of: (a) a breach of this Agreement by the Customer; (b) the use of the Services in combination with any other material; or (c) the Customer’s Content infringing any Intellectual Property Right of a third party or being defamatory or illegal in Australia.
(g) ARM holds the benefit of the release in this clause 7 for each of its officers, employees, advisers and related bodies corporate from time to time.
8. DOMAIN NAMES
If the Order Form indicates that ARM will obtain domain name on behalf of the Client, ARM does not guarantee that the requested domain names are available or are able to be registered. Accordingly, the Customer should take no action in respect of the requested domain name(s) until the Customer has been notified that the requested domain name has been registered in the Customer’s name.. The Customer agrees and acknowledges that it is responsible for the renewing their domain name and any associated renewal fees.
(a) Subject to this Agreement, the Customer may upload Content to the Services in connection with the use of the Services. Subject to clause 10 (Intellectual Property), all intellectual property rights in Content provided by the Customer.
(b) The Customer grants ARM a non-exclusive, irrevocable, worldwide, perpetual, royalty-free and fully paid up licence with the right to sub-license: (i) to copy, distribute, transmit, publicly display, publicly perform, communicate to the public, transmit and reformat the Content solely to deliver the Services to the Customer] for other APN websites, documentation, statements, presentations, releases or other material created by APN, its related bodies corporate and contractors.
10. INTELLECTUAL PROPERTY RIGHTS
(a) All Intellectual Property Rights in any subject matter developed or supplied by or on behalf of ARM in the course of providing the Products (including but not limited to those subsisting in the computer programs, databases, software, website templates, and documentation) and all modifications, improvements or adaptations to any of them are owned by ARM, or a person nominated by ARM (“ARM Intellectual Property Rights”). In the event that the Customer has any right, title or interest in any of the ARM Intellectual Property Rights, by this Agreement the Customer assigns all such right, title and interest absolutely to ARM and must execute all documents and do all things necessary or reasonable to give full effect to such assignment if requested by ARM.
(b) The Customer acknowledges and agrees that ARM owns all website templates and intellectual property rights in the website templates used to provide the Services. The Customer acknowledges that their website may look like websites provided to other ARM customers who have chosen the same website template and photos as the Customer.
(c) ARM grants the Customer a personal, non-exclusive, non-transferable, royalty-free licence to use the subject matter delivered by or on behalf of ARM pursuant to these terms and conditions including, but not limited to the ARM Intellectual Property Rights, for the purposes of its website(s). For the avoidance of doubt, Customer must not sub-license or commercialise any Intellectual Property Rights of ARM.
11. THIRD PARTY SOFTWARE AND PHOTOGRAPH USAGE
(a) All third party software provided to the Customer or used by the Customer to use the Services is provided subject to the license agreement terms of such software, notified by ARM to Customer from time to time. The Customer is bound by the license agreement on using the software. Any warranty and technical support provided on third-party products purchased through the third party product provider.
(b) If the Customer requests ARM procure photographs from third party suppliers to be used on their website, the Customer must comply with any licence terms that accompany such photographs and must not copy, modify or adapt such photographs or use such photographs other than on the website designed and built by ARM in accordance with the Services unless otherwise approved in writing by ARM.
12. STORAGE AND USE OF INFORMATION
(a) ARM retains the right to create reasonable limits on the use of Content such as limits on file size, storage space, processing capacity, time frames for retention of Content and similar limitations as set out in the APN ARM Digital Solutions Product Specifications or otherwise reasonably determined by ARM and notified in writing to Customer. If use of Content exceeds the limits set out in the APN ARM Digital Solutions Product Specifications, the Customer agrees that it may be required to purchase additional data or disk space, and a failure to do so may result in the Services being suspended or ceasing to function or the Customer being unable to upload any additional Content.
13. TRANSFER HOST PROVIDER AND DOMAIN NAME
The Customer may to transfer their website to another host provider or transfer ownership of the website, subject to all Fees being paid by the Customer. The Customer must contact their ARM account manager if they wish to transfer their website to another host or transfer ownership of the domain name. The Customer agrees that an administration fee may apply to a transfer of host.
A party may not disclose the provisions of this agreement or Confidential Information about the other party except:
(i) after obtaining the written consent of the other party;
(ii) on a confidential basis to an officer, employee or subcontractor; or
(iii) as required by any applicable law,
and must use its best endeavours to ensure all permitted disclosures are kept confidential by the party to whom the disclosure was made.
(a) ARM may collect your personal information, including your name, address, billing and delivery information, email address, and credit card details.
16. DISPUTE RESOLUTION
(a) If any dispute or difference arises between the parties in connection with any aspect of this agreement the parties undertake with each other to use all reasonable endeavours, in good faith, to settle the dispute or difference by negotiation.
(b) If the parties or their representatives do not settle the dispute by negotiation within 14 days, each party must appoint a senior executive to participate in the negotiations to settle the dispute or difference. If the dispute is not resolved within one month after referral of the dispute to the senior executives or such longer period as agreed between the parties, then any party may exercise any other rights they may have.
(a) Any consideration or payment obligation in this agreement is exclusive of GST unless stated otherwise.
(b) A party who receives consideration, whether monetary or otherwise, for a taxable supply under this agreement, must give the other party a tax invoice in a form which complies with the GST Law.
18. RELATIONSHIP BETWEEN THE PARTIES
(a) This agreement does not create a relationship of employment, agency or partnership between the parties.
(b) Neither party is authorised to, or may undertake to bind the other party in any way by any warranty, agreement, contract, representation or other written or oral or by any instrument or action of any kind.
(a) Either party may cancel the provision of Services and thereby terminate this Agreement by giving 30 days written notice to the other party.
(b) Either party may terminate this Agreement immediately by giving written notice to the other party, if:
(i) the other party breaches a material obligation under this agreement and does not remedy that breach within 28 days after receipt of written notice requiring it to do so; or
(ii) an Insolvency Event occurs in relation to the other Party.
(c) ARM may terminate this agreement immediately by giving written notice to the Customer if the Customer does not pay any amount due under this agreement or any amount due under any other agreement or arrangement between ARM and the Customer. .
(d) On termination of this agreement:
(i) each party must immediately return to the other party all the other party’s confidential information its possession or control; and
(ii) the Customer must immediately pay all outstanding amounts owing under this agreement as at the date of termination.
The Customer acknowledges and agrees that ARM may engage subcontractors to assist in the provision of the Services to Customers.
21. ALTERING TERMS AND CONDITIONS
(a) ARM reserves the right to change the terms of this Agreement at any time. [Notice of material changes to this Agreement and their effective date will be published on the ARM’s webpage, which will not be less than 30 days after Customer is notified by email of such changes.
(b) The amended Agreement will apply to the Service and any order you place from the effective date of the change.
(a) Any notice or other communication, given under this agreement must be in English and is deemed to be received by the addressee in accordance with clause 14 (b).
(b) A notice is deemed to be received:
(i) if sent by hand, when delivered to the addressee;
(ii) if by post, on delivery to the addressee;
(iii) if by facsimile transmission, on receipt by the addressee; or
(iv) if sent by email, on receipt by the addressee,
but if the delivery or receipt is on a day which is not a Business Day or is after 4.00 pm (addressee's time) it is regarded as received at 9.00 am on the following Business Day.
(c) The laws of Queensland govern this agreement. Each party submits to the exclusive jurisdiction of the courts of that State.
(d) A party may not assign this agreement or otherwise transfer the benefit of this agreement or a right or remedy under it, without the prior written consent of the other party.
(e) This agreement constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.
(f) Each party must do all things necessary to give full effect to this agreement and the transactions contemplated by this agreement.
(g) ARM may use a related body corporate to perform any of its obligations or otherwise do anything required or permitted of ARM under this agreement.
(h) If any provision of this agreement is held to be ineffective, unenforceable or illegal for any reason, that decision will not affect the validity or enforceability of any or all of the remaining proportions.
(i) Either party’s failure on any occasion to insist on the strict performance of any term or condition of this agreement will not constitute a waiver of compliance with the particular term or condition or a waiver of any default.
(j) This agreement may only be amended by a written document signed by the parties.
(k) The party who signs the agreement on behalf of the Customer warrants that it has the authority and power to enter into this Agreement. If for any reason this Agreement is not enforceable by ARM against the Customer, in whole or in part, the party who signs this Agreement on behalf of the Customer will indemnify ARM against all loss, including all money which would have been payable by or recoverable from the Customer had this Agreement been enforceable against the Customer.If the Customer has any query about the progress of the Services you ordered, please contact us your local ARM account manager or email firstname.lastname@example.org and quote your account no and details.
DICTIONARY AND INTERPRETATION
Part 1 – Definitions
In this agreement:
Business Day means a day on which banks are open for business in New South Wales excluding a Saturday, Sunday or public holiday.
Content means any material that is uploaded to a website and/or accessed by the browser, including (without limitation) text, images, video, audio, documents, games, application, metadata.
Confidential Information includes:
(a) all trade secrets, ideas, concepts, know how, technology, operating procedures, processes, knowledge, pricing and other information which is not in the public domain;
(b) all notes and reports incorporating or derived from information referred to in paragraph (a); and
(c) all copies of the information, notes and reports referred to in paragraphs (a) and (b).
Dollars, A$ and $ means the lawful currency of Australia.
GST means good and services tax under the GST Law, as that expression is defined in A New Tax System (Goods and Services Tax) Act, 1999.
Insolvency Event means the occurrence of any one or more of the following events in relation to any party:
(a) an application is made to a court for an order that it be wound up, declared bankrupt or that a provisional liquidator or receiver or receiver and manager be appointed;
(b) a liquidator or provisional liquidator or an administrator is appointed;
(c) it enters into an arrangement or composition with one or more of its creditors, or an assignment for the benefit of one or more of its creditors;
(d) it ceases to carry on business or threatens to do so; or
(e) anything occurs under the law of any jurisdiction which has a substantially similar effect to any of the above paragraphs of this definition.
Late Fe Rate means, at any time, 2% per month calculated daily, compounded monthly.
Intellectual Property Rights means all intellectual property rights at any time protected by statute or common law, including but not limited to:
(a) patents, patent rights, copyrights, rights in circuit layouts, registered designs, design rights, trade marks, trade names, licenses, utility models, logotypes and service marks and any right to have confidential information kept confidential; and
(b) any application or right to apply for registration of any of the rights referred to in (a).
Services has the meaning set out in the Order Form.
Tax mans a tax, levy, charge, impost, fee, deduction, withholding or duty of any nature, including, without limitation, stamp and transaction duty, which is imposed or collected by a government agency.
Part 2 - Interpretation
(a) In this agreement unless the context otherwise requires:
(i) words importing the singular include the plural and vice versa;
(ii) words which are gender neutral or gender specific include each gender;
(iii) other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning;
(iv) an expression importing a natural person includes a company , partnership, joint venture, association, corporation or other body corporate and a Government Agency;
(v) a reference to a thing (including, but not limited to, a chose-in-action or other right) includes a part of that thing;
(vi) a reference to a clause, party, schedule or attachment is a reference to a clause of this agreement, and a party, schedule or attachment to, this agreement and a reference to this agreement includes a schedule and attachment to this agreement;
(vii) a reference to a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by law judgment, rule of common law or equity or a rule of an applicable stock exchange and is a reference to that law as amended, consolidated or replaced;
(viii) a reference to a document includes all amendments or supplements to that document, or replacements or novations of it;
(ix) a reference to a party to a document includes that party's successors and permitted assigns;
(x) an agreement on the part of two or more persons binds them severally
(b) Where the day on or by which something must be done is not a Business Day, that thing must be done on or by the following Business Day.
(c) Headings are for convenience only and do not affect the interpretation of this agreement.
(d) This agreement may not be construed adversely to a party just because that party prepared the agreement.
(e) A term or expression starting with a capital letter:
(i) which is defined in this Dictionary, has the meaning given to it in this Dictionary; and
(ii) which is defined in the Corporations Law but is not defined in this Dictionary, has the same meaning as in the Corporations Law.