TERMS OF SERVICE
These terms and conditions regulate the business relationship between you and us. This Agreement sets out the general terms and conditions on which we supply our services to our clients. By purchasing a Service from us, you indicate your acceptance of these Terms of Service.
No person under the age of 18 years may purchase Services. If you are under 18, please ask an adult for help with your purchase.
References throughout these Terms and Conditions to “we”, “us”, “our”, ‘App Media” or “10X Media” means 10X Media Proprietary Limited ABN 54 139 073 395 or any employee or agent of App Media or 10X Media responsible for dealing with you.
References throughout these Terms and Conditions to “you”, “your” or “the client” means a visitor to any website owned by us and/or a customer of ours, and will include any agent or representative of you having actual or ostensible authority to act for you.
1: DEFINITIONS AND INTERPRETATION
In this Agreement:
Agreement includes the Service/s you have purchased from our website or any Scope of Work for customised Service/s you have purchased, the General Terms, and any additional service specific Terms and Conditions that have been specified;
Scope of Work means all Services and items requested by you that are to be provided by us to you under, or in connection with, this agreement as specified in the project Scope of Work, or as agreed from time to time;
The Project means Services or Scope of Work.
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in New South Wales, Australia;
Charges means any fees or charges set out in this Agreement and which are applicable to your Services, and any other amounts charged by us in connection with our provision of the Services to you, as varied by us in accordance with this Agreement from time to time;
Claim includes a claim, notice, demand, action, proceeding, litigation, prosecution, arbitration, investigation, judgement, award, damage, loss, cost, expense or liability howsoever arising, whether present, unascertained, immediate, future or contingent, whether based in contract, civil, common law, tort (including negligence) or statute and whether involving a party to this Agreement, third party or otherwise;
Commencement Date means the earlier of:
- the date on which we commence providing Services to you on your request; or
- the date you accept the terms and conditions of this Agreement (which means either at time of online purchase on Our Website, or in writing, via email acceptance, verbally or otherwise);
Confidential Information means the commercial terms of this Agreement, all trade secrets, financial information, technical information, ideas, concepts, know-how, technology, processes and knowledge of us in connection with our business which is confidential or of a sensitive nature and all other information belonging or relating to us that is not generally available to the public at the time of disclosure other than by reason of a breach of this Agreement or which you know, or ought reasonably to be expected to know, is confidential to us;
Consumer means any natural person who, in connection with this agreement, is acting for purposes which are outside his/her business;
Client Content means any material provided by you to us or made available to us for the purpose of us providing the Services to you, including any content (such as data, videos, images, scripts, text, apps, links and any other information) to be published on or made available from your Website (if applicable) or Mobile Application or Social Media networks or 3rd party websites where your content is published in relation to our services. Client Content also includes any amendments or changes we make to material provided by you or made available to us for editing, style, presentation, social media or search engine optimisation purposes;
End User means you or your employee, agent or contractor, or any other person who accesses, uses or receives any direct or indirect benefit of the Services, including your customers;
General Terms means the terms and conditions set out in this Agreement;
Insolvency Event includes an event where a receiver or receiver and manager is appointed over any of your property or assets, an administrator, liquidator or provisional liquidator is appointed to you, you enter into any arrangement with your creditors, you become unable to pay your debts when they are due, you are wound up or become bankrupt, or any other analogous event or circumstance occurs under the laws of any jurisdiction;
Intellectual Property Rights means any and all intellectual and industrial property rights throughout the world, whether subsisting now or in the future, including rights of any kind in or relating to:
- inventions, discoveries and novel designs, whether or not registered or registrable as patents, innovation patents or designs, including developments or improvements of equipment, technology, processes, methods or techniques;
- literary works, dramatic works, musical works, artistic works, cinematograph films, television broadcasts, sound broadcasts, published editions of works and any other subject matter in which copyright (including future copyright and rights in the nature of or analogous to copyright) may, or may upon creation of the subject matter, subsist anywhere in the world;
- registered and unregistered trademarks and service marks, including goodwill in the business concerned in the relevant goods and/or services;
- trade, business or company names;
- website designs;
- mobile app designs and
- internet domain names,
whether created or in existence before or after the date of this Agreement and includes anything, whether tangible or intangible, which incorporates, embodies or is based on any of the things referred to in points (1) to (6) inclusive of this definition;
International Clients refers to clients of 10X Media who do not reside or have their business, company or corporate offices located in Australia;
Intervening Event means an event beyond our reasonable control which interferes with and prevents us from providing the Services to you; such events include any act or omission of our suppliers outside our reasonable control, any disruption to our network or our suppliers’ networks, infrastructure and equipment, failure of any electrical power supply, changes to any laws or regulations, lack of availability of resources, strike or other industrial action and acts of God, lightning strikes, earthquakes, floods or other intervening natural event;
Mobile Application means your iPhone app, iPod app, iPad app, Android app, Windows app, or HTML5 Web App (if any) hosted by us or created under this Agreement;
Australian Consumer Law means the Australian Consumer Law as set out in the Competition and Consumer Act 2010 (Cth);
Personal Information means any information about a person, whether recorded in a material form or not, whose identity is apparent or can be reasonably ascertained from the information or opinion, and includes information relating to a person’s name, billing address, street address, email, phone number and any other relevant details;
Personnel means our employees, contractors, agents or other third parties;
Privacy Act means the Australian Privacy Act 1998 (Cth);
Professional Services means any one-off, periodic or ongoing Services performed for you by our personnel involving particular expertise or skill;
Regulator includes the Australian Communications and Media Authority, the Australian Competition and Consumer Commission, the Telecommunications Industry Ombudsman, Communications Alliance Limited, and any other relevant government or statutory body or authority;
Services means any of the services we offer for sale on our Website and any services we provide to you under, or in connection with, this agreement as specified in your online Order Confirmation, or as agreed from time to time. This includes generally available updates and support services so far as specified for each service;
Supplier means a “Carrier” or “Carriage Service Provider” as defined in the Telecommunications Act 1997 (Cth), another telecommunications service provider, a wholesale supplier of telecommunications services, third party provider or supplier as nominated by us from time to time from which we source the Services or any part of the Services to resupply to you;
Telecommunications Act means the Australian Telecommunications Act 1997 (Cth);
Term means the service period which commences on the Commencement Date and continues until terminated in accordance with its terms.
Website means your website (if any) hosted by us or created under this Agreement;
In this Agreement, unless the context requires otherwise:
- the singular includes the plural and vice versa;
- other grammatical forms of defined words or expressions have corresponding meanings;
- a reference to a document includes the document as modified from time to time and any document replacing it;
- if something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day;
- the word “month” means calendar month and the word “year” means 12 months;
- the words “in writing” include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient;
- a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re-enacted or replaced from time to time;
- a reference to a government agency means any government or any public, statutory, governmental (including a local government), semi-governmental or judicial body, entity, department or authority and includes any self-regulatory organisation established under statute;
- wherever “include” or any form of that word is used, it must be construed as if it were followed by “(without being limited to)”; and
- money amounts are stated in Australian Dollars (AUD) currency unless otherwise specified.
2: OUR CONTRACT WITH YOU
These terms and conditions apply:
- So far as the context allows, to you as a visitor to Our Website; and
- In any event to you as a buyer or prospective buyer of our Services.
- We shall accept your order by e-mail confirmation. That is when our contract is made. Our message will also confirm details of your purchase receipt.
- This Agreement commences on the Commencement Date and continues until terminated in accordance with its terms.
- We cannot guarantee that every Service advertised on our website is available. If at any time a Service for which you have paid becomes unavailable, we will immediately refund any money you have paid. Our refund will cover the period of unavailability and not any period for which Services have been available.
- We may change these terms from time to time. The terms that apply to you are those posted here on Our Website on the day you order Services.
- If in future, you buy Services from us under any arrangement which does not involve your payment via Our Website, these terms still apply so far as they can be applied.
- If we owe you money (for this or any other reason), we will credit your credit or debit card as soon as reasonably practicable but in any event no later than 7 days from the date of your order.
3: ACCEPTABLE USE POLICY OF OUR WEBSITE
3.1 Your Use of Our Website
As a condition of your use of Our Website, you agree to comply with these provisions:
- You agree that you will not, and will not allow any other person to violate or attempt to violate any aspect of the security of Our Website.
- You may not use any software tool for the purpose of extracting data from our website.
- You understand that any such violation is unlawful in many jurisdictions and that any contravention of law may result in criminal prosecution.
- You will not use or allow anyone else to use the Web Site to post or otherwise publish:
- copyright works;
- commercial audio, video or music files;
- any Material which violates the law of any established jurisdiction;
- unlicensed software;
- software which assists in or promotes: emulators, phishing, hacking, password cracking, IP spoofing;
- links to any of the material specified in this paragraph;
- pornographic Material;
- any Material promoting discrimination or animosity to any person on grounds of gender, race or colour.
- You will not use the Services for spamming. Spamming includes, but is not limited to:
- The bulk sending of unsolicited messages, or the sending of unsolicited emails which provoke complaints from recipients;
- The sending of junk mail;
- The use of distribution lists that include people who have not given specific permission to be included in such distribution process;
- Excessive and repeated posting off-topic messages to newsgroups;
- Excessive and repeated cross-posting;
- Email harassment of another Internet user, including but not limited to, transmitting any threatening, libelous or obscene Material, or Material of any nature which could be deemed to be offensive;
- The emailing of age inappropriate communications or content to anyone under the age of 18.
3.2 Use of Your Email Address
You represent that any username or email address selected by you, when used alone or combined with a second or third level domain name, does not interfere with the rights of any third party and has not been selected for any unlawful purpose.
You acknowledge and agree that if we believe such selection does interfere with the rights of any third party or is being selected for any unlawful purpose, we may immediately suspend the use of such name or email address, and you will indemnify us for any claim or demand that arises out of your selection.
You acknowledge and agree that we shall not be liable to you in the event that we are ordered or required by a court or judicial authority, to desist from using or permitting the use of a particular domain name as part of a name or email address.
4: SUPPLY OF SERVICES
We agree to provide, and you engage us to provide, the Services on the terms of this Agreement.
4.2 Obligation to supply
Nothing in this Agreement requires us to provide any Services to you at any time when:
- you have not paid for Services previously provided by us for which payment is then due; or
- there has been a breach of this Agreement by you that has not been duly remedied.
4.3 Professional Services
If the Services you order in your Scope of Work require us to perform Professional Services for you, the following provisions will apply:
- We will use appropriately trained and qualified Personnel to perform the Professional Services;
- Our Personnel will use due care when providing the Professional Services; and
- We may subcontract or outsource the performance of any Professional Services, as needed, and without obtaining your consent.
4.4. Your use of the Services
You acknowledge and agree that you accept full risk and responsibility for your use and your end users’ use of the Services.
- When using the Services, you must comply with and must ensure that your end users comply with:
- the terms of this Agreement;
- any reasonable guidelines or directions we may issue from time to time; and
- any applicable laws, regulations, standards and industry codes, and with the requirements or directions of any Regulator.
- You must not, and must ensure that your end users do not, directly or indirectly, use the Services:
- to breach the rights, including the intellectual property rights, of any person, or infringe or adversely impact on the rights of any person;
- in a manner which is misleading or deceptive;
- in a manner which results, or could result, in damage to property or injury to any person;
- in any way which damages or interferes with our provision of Services to other clients or exposes us to liability;
- You must not, and must ensure that your end users do not:
- reverse engineer or in any other way copy, access or utilise any software (or any part of software) that we provide you in connection with the Services other than in accordance with the terms of this Agreement;
- attempt to use, or allow use, of the Services in a way which may impede our ability to provide the Services or other services to you or any other person or entity;
- make or receive transmissions or communications of any type or quantity that adversely affect our operation or jeopardise the use of the Services or other services, or their performance by you or any other person or entity;
- act in a way that may waste resources or prevent others from using or receiving the full benefit from the Services or other services;
- or resell or resupply the Services to any third party.
5: PRICE, PAYMENT AND SERVICE PROVISION
- Upon becoming a subscriber to the Services, you agree to pay for the Services received from 10X Media via Visa, MasterCard, American Express credit, Electronic Wire Transfer, or Paypal, in advance of the time period during which such Services are provided.
- Payment will be made at time of purchase on our website unless the service/s you are purchasing requires us to send you an invoice, whereby you will make payment based on the terms of that invoice, for this refer to clauses 6.2 and 6.3 below.
- It is possible that the price may have increased from that posted on our Website. If that happens, we will not provide the Services until you have confirmed that you wish to order at the new price.
- You agree to pay the monthly charge for the Services, from the PayPal account or credit card, information for which you have or will have supplied to us. You authorise us to arrange withdrawal of funds on this card each month without further reference to you.
- Payments are billed in advance on the same day as your initial order each month.
- Our Services may be provided by email / made available for you to download / in the way we have explained in our Website.
- If we are not able to provide your Services within  days of the date of your order, we shall notify you by e-mail to tell you the likely provision date.
- Once Service provision has started, you may cancel the Services at any time on giving us 21-days notice. Payment will be due until the expiry of the notice period.
- We may change the nature or provision of the Services at any time. We may tell you about any such change by email or by posting details on Our Website.
- If we change the nature or provision of the Services, you may terminate this contract.
- If a change we make in the provision of the Services, involves action on your part, and you do not take that action, we are entitled to terminate the Services to you without notice.
- You may not share or allow others to use the Services in your name.
- We will do our best to maintain Our Website so that you have constant use, but there will be times when your use may be interrupted. Interruption to the Services for reasonable periods for maintenance or causes beyond our control is not a ground for repayment of money you have paid. When we are aware of the likelihood of down time, we will tell you in advance.
- You may request a variation to the Services by written application or email to us. Where you seek a variation of the Services and we accept that variation (which may be subject to conditions or additional cost), the Charges shall automatically be revised to take into account the variation of the Services.
- Any additional Services not specified in the Design and development proposal will require an additional quotation
6.1 Invoiced Services
- We will invoice you the charges incurred by you. The timing, delivery and format of our invoice may vary depending on the Services ordered by you and our internal billing practices.
- If you are receiving Services for which we are invoicing you on a monthly basis, Charges that do not appear on your invoice for the current billing period may appear on future invoices due to processing procedures.
- We may send invoices to you via the email address you have indicated on this Agreement or to your billing address as indicated on this Agreement. It is your responsibility to ensure that you provide us with your most up to date address and billing information.
- Unless otherwise stated on an invoice, you must pay us the amount invoiced within 30 days of the date of that invoice.
6.2 Payment of Invoices
- You may pay your invoice by any one of the payment methods set out on your invoice.
- If you have nominated to pay your invoice by automatic direct debit by signing a direct debit authority form, your bank account or credit card will be debited on or around the due date specified on the invoice. Your payment by direct debit is subject to the terms and conditions of the direct debit authority form.
- If you pay your invoice by direct debit or cheque and your payment is not honoured (for example, there are insufficient funds in your account or your cheque is dishonoured) we may charge you a payment dishonour fee and recover from you any fees charged by our bank which result from the dishonoured payment.
- If you do not pay your Charges when they fall due, we may suspend your Services and/or suspend your access to Client Content or Project assets.
6.3 Overdue accounts
If you do not pay off any amounts payable under this Agreement by the due date, we may execute one or more of the following:
- Suspend or terminate all or part of your Service until the amount outstanding is paid in full;
- Charge you a late payment administration fee
- Charge you interest on all overdue amounts at 2% per calendar month, calculated daily and compounded monthly;
- Engage a debt recovery agent to recover the amounts outstanding;
- Institute legal proceedings against you to recover the amounts outstanding; or
- If you have elected to pay by direct debit, you authorise us to deduct any unpaid amount (or part thereof) from your credit card or bank account nominated on the direct debit form.
- If you do not pay us the invoiced amount for any Services payable under this agreement, within the time stipulated in the tax invoice, you agree that we may recover the outstanding amount specified in the invoice together with the interest, our legal costs, bank fees and charges, any other expenses incurred in attempting to recover the debt and any fees and commissions or other amounts we pay to any collection agency to act on our behalf.
- If you default in the payment of any amounts payable under this Agreement, we may use or disclose any Personal Information collected and recorded in relation to you to a third party to assist us in the process of debt recovery.
7: GST, FOREIGN TAXES, DUTIES AND IMPORT RESTRICTIONS
7.1 If you are not in Australia, we have no knowledge of, and no responsibility for, the laws in your country.
7.2 You are responsible for purchasing Services which you are lawfully able to import or use and for the payment of import duties and taxes of any kind levied in your country.
In this clause 6:
- the expressions Consideration, GST, Input Tax Credit, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999; and
- Supplier means any party treated by the A New Tax System (Goods and Services Tax) Act 1999 as making a Supply under this Agreement.
7.4 Consideration is GST exclusive
Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under or in accordance with this Agreement are exclusive of GST.
7.5 Payment of GST
- If GST is imposed on any Supply made under or in accordance with this Agreement, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply at or before the time of payment.
- Payment of the additional amount must be made at the same time and in the same way as payment for the Taxable Supply is required to be made in accordance with this Agreement.
- Australian customers and clients will pay the Australian rate of GST.
7.6 Reimbursement of expenses
If this Agreement requires a party (the First Party) to pay for, reimburse, set off or contribute to any expense, loss or outgoing (Reimbursable Expense) suffered or incurred by the other party (the Other Party), the amount required to be paid, reimbursed, set off or contributed by the First Party will be the sum of:
- the amount of the Reimbursable Expense net of Input Tax Credits (if any) to which the Other Party is entitled in respect of the Reimbursable Expense (Net Amount); and
- if the Other Party’s recovery from the First Party is a Taxable Supply, any GST payable in respect of that Supply, such that after the Other Party meets the GST liability, it retains the Net Amount.
8: MAKING COMPLAINTS
8.1 If for any reason you are not completely happy with your purchase or you have any complaints in connection with the Services (including complaints about your invoice), you agree to immediately contact us first to resolve the complaint via the contact details available on our website at 10x.media or appmedia.com.au.
8.2 When you contact us, tell us:
- exactly why you think we have failed;
- the date, if relevant, of the failure;
- when and how you discovered the failure;
- the result of the failure;
- your suggestion as to action we should take to resolve the situation and restore your faith in us.
8.3 We will handle your complaint in accordance with our complaints procedure. Information on our complaints procedure may be obtained by contacting us.
9: VARIATIONS TO THIS AGREEMENT
- This Agreement, including the Charges, and any terms and conditions of this Agreement relating to the Charges, may be varied, altered, replaced or revoked by us at any time (Variations):
- without notice to you, if the Variation is likely to benefit you or have a minor or neutral detrimental impact on you;
- or by giving you 21-days notice of the Variation prior to the date the Variation is to take effect, if the Variation could be reasonably expected to adversely affect you. We may provide such notice in writing, via email or by publishing a notice on our website.
- Where a Variation could be reasonably expected to adversely affect you, or have more than a minor detrimental impact, and we have notified you of such Variation under clause 9.1 we will offer you the right to terminate your Agreement by giving us notice in writing within 21 days from the date of our notice to you without incurring any fees or charges, other than any Charges incurred up to the date on which your Agreement is terminated.
- Any Variations implemented by us will take effect:
- in respect of Charges for the Services which are billed on a monthly basis, from your next billing cycle 21 days after we have notified you of such Variations; or
- in respect of all other amendments, 21 days after we have notified you of such Variations.
- If you have requested changes to the Charges for your Services, and we have accepted those changes in writing, these changes will only apply from the following billing cycle after we have agreed to such a change.
10: INTELLECTUAL PROPERTY RIGHTS
10.1 Use of our Website and Services
- You agree to keep safe the Confidential Information and not to disclose or make available for disclosure to any person, any part of it.
- We will defend the intellectual property rights in connection with our Product and Our Website, including copyright in the Content whether provided by us or by any other content provider (including copyright in: text, graphics, logos, icons, images, audio clips, digital downloads, data, and software).
- We also claim copyright in the designs and compilation of all Content of Our Website. Title, ownership rights, and shall remain the sole property of us and / or the other content provider. We will strongly protect those rights in all countries.
- Except as set out below, you may not copy, modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of the Content, in whole or in part.
- You may not use our name or logos or trademarks or any other Content on any website of yours or that of any other person.
- Subject to the other terms of this agreement, you may download or copy Content only for your own personal use, provided that you maintain all copyright and other notices contained in it. You may not store electronically any significant portion of any Content.
10.2 Completed Services
You acknowledge and agree that:
- Upon receipt of full payment, you will be granted a license to use the design, content and source code that we provide for your Project only. In addition, you shall have the right to use assets supplied by us only for The Project unless otherwise agreed to in writing.
- The html files, image files, animations, JAVA scripts, CGI programs, source code and related assets supplied by us may not be used by you apart from there use on The Project unless otherwise agreed to in writing.
- We retain the right to make portfolio use of The Project or parts thereof after The Project has been released to the Client.
- We may use your name and trademarks, your details and details of the duration and value of this Agreement in our lists of customer references and marketing materials or otherwise on our website and entering into this Agreement is deemed to be your consent for us to so act.
- Nothing in this Agreement transfers or any way affects, impacts on or infringes the Intellectual Property Rights in any material owned by any third party.
- Where you provide us with any Client Content, you:
- grant to us a non-exclusive, royalty-free, worldwide licence to use, modify, communicate and adapt that Client Content for the purpose of providing the Services to you;
- represent and warrant that you have the rights and capacity to grant the licence for any Client Content that you provide.
- You must not disclose our Confidential Information without our prior written consent.
- You must not use any of our Confidential Information except in connection with using the Services in accordance with the terms of this Agreement.
- The obligations of confidentiality do not apply to any information that:
- is generally available to the public (other than by reason of a breach of this Agreement);
- already in your possession other than through a breach of this Agreement; or
- is required to be disclosed by any applicable law.
12: PERSONAL INFORMATION
12.1 You agree that you have provided, and will continue to provide accurate, up to date, and complete information about yourself. We need this information to provide you with the Services.
12.2 If you use the website, you are responsible for maintaining the confidentiality of your account and password and for preventing any unauthorised person from using your computer.
12.3 You agree to accept responsibility for all activities that occur under your account or password. You should tell us immediately if you believe some person has accessed your account without your authority and also log in to your account and change your password.
12.4 Collection of Personal Information
- We or our agents may collect Personal Information about you and your end users for the primary purpose of providing the Services to you.
- You must ensure that your end users are informed of and consent to our right to collect Personal Information about the end user.
- If you do not provide Personal Information to us, we may not be able to provide you with the Services.
12.5 Use and disclosure of Personal Information
- We may use and disclose your Personal Information and the Personal Information of end users for purposes relating to the supply of the Services to you. This includes billing and account management purposes, product and service development, managing your relationship with us, and marketing our services to you.
- We may use and disclose your Personal Information and the Personal Information of End Users to or from:
- a credit provider or credit reporting agency;
- a law enforcement agency or government agency to assist in the investigation of crime or the enforcement of any laws;
- to contracted service providers which we use to perform administrative services on our behalf, including but not limited to billing providers or IT providers. Such contracted service providers may be located in a jurisdiction other than Australia; and
- any third party as otherwise required or permitted by law.
12.6 Using your Personal Information for marketing related and communication purposes
- Unless you have requested not to receive marketing material, you acknowledge that we may send you from time to time any communication in the form of telephone calls, written correspondence, letters, brochures or emails from us or our related parties to enable you to keep up-to-date with our Services and other matters relating to internet security, viruses, useful tools, promotions and sites of interest. This communication does not constitute spam as we have a business relationship with you.
- If you do not wish to receive such communications, you may opt-out of receiving marketing material at any time by contacting us. This will not affect any communications we send to you which are account-related or legally required.
12.7 Access and Correction of Personal Information
If you are an individual, you may request:
- access to any of your Personal Information held by us; or
- correction to any of your Personal Information held by us, in accordance with our and the Privacy Act.
13.1 Our warranties to you
Subject to any of your rights under the Australian Consumer Law, which contains consumer guarantees that may not be able to be excluded, we do not warrant that:
- the Services provided under this Agreement will be uninterrupted or error free;
- the Services will meet your requirements, other than as expressly set out in this Agreement or as made known to us as being the particular purpose for which the services are acquired;
- the Services will be free from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to our services or systems; or
- you will receive any increase in revenue, profit, goodwill or website usage as a consequence of your use of the Services.
13.2 Your warranties to us
- You warrant and represent that:
- if you are a corporate entity, you have full corporate power to own your assets and to carry on your business;
- you have the power to enter into and perform this Agreement;
- the entry into and performance of this Agreement by you does not constitute a breach of any obligation (including but not limited to any statutory, contractual or fiduciary obligation), or default under any agreement or undertaking, by which you are bound;
- you are not subject to an Insolvency Event; and
- you are not entering into this Agreement as trustee of any trust or settlement
- You warrant and it is a condition of this Agreement that:
- any Client Content you provide to us will not infringe the Intellectual Property Rights or other rights of any third party;
- you will conduct such tests and computer virus scanning as may be necessary to ensure that any content (including Client Content) uploaded by you or End Users onto or downloaded by you or End Users from our server does not contain any computer virus and will not in any way, corrupt the data or systems of any person; and
- you will keep secure any passwords used relating to the Services.
14: LIABILITY AND INDEMNITY
14.1 Our liability to you
- Nothing in this Agreement affects your rights under the Australian Consumer Law that cannot be excluded.
- Any representation, warranty, condition or undertaking that would be implied in this Agreement by legislation, common law, equity, trade, custom or usage is excluded to the fullest extent permitted by law.
- Subject to clauses 14.1, our liability to you under this Agreement, your End Users or any person who may utilise the Services in any circumstances, however arising, whether in contract, statute, tort (including negligence) including any liability arising from any representation, warranty, condition or undertaking that would be implied in this Agreement by law, trade, custom or usage, is excluded to the maximum extent permitted by law.
- Except where we fail to comply with any applicable consumer guarantee under the Australian Consumer Law, we will not be liable for any special, incidental or consequential loss or damage and in particular, any loss of revenue, profits, data, actual or potential business opportunities, contracts or anticipated savings of profits, or any indirect or economic loss.
14.2 Your liability to us
- You indemnify us for any loss or damage we may suffer in connection with any Claim relating to:
- your breach of this Agreement;
- you or your End User’s use or misuse of the Services;
- the publication of defamatory, offensive or otherwise unlawful material on any web site forming part of your Service (whether such material was published by you or an End User);
- any Claim made by a third party that our use of any Client Content or other material you have provided us infringes that party’s Intellectual Property Rights; and
- any Claim made by you and/or a third party in relation to any Client Content or part of the Client Content.
- Your obligations under this clause survive termination of this Agreement.
15: SUSPENSION OF THE SERVICES
15.1 Suspension of Services
We may suspend your Services at any time, without liability and immediately if:
- during any technical failure, modification or maintenance involved in the Services, provided that we will use reasonable endeavours to procure the resumption of the Services as soon as reasonably practical;
- you breach a material term of this Agreement, which includes any term relating to your use of the Services and any term of our Acceptable Use Policy;
- you are the subject of an Insolvency Event;
- we reasonably suspect that you, an End User or any person in connection with the Service has committed fraud, is engaged in fraudulent activity or where evidence suggests illegal conduct in relation to the Services;
- you are a natural person (and not a company) and you die;
- there is an emergency;
- we are required to do so to comply with any law or any direction of a Regulator or government agency;
- an Intervening Event occurs; or
- we are otherwise entitled to do so under this Agreement.
15.2 Consequences of suspension
- If we suspend the Services under clause 15.1, you will still remain liable for all Charges payable to us under this Agreement during the period of suspension.
- If your Services have been suspended by us for reasons which are reasonably attributable to you, and we reactivate the Services, a fee may be payable by you to reactivate the Services.
- We will use reasonable endeavours to reactivate your Services once the cause of the suspension is rectified to our reasonable satisfaction.
- If we have taken any action in accordance with clause 15.1, we may delete any or all of your information, material, software, date or other content stored on our systems at our sole discretion.
16.1 Termination of ongoing Services by you
- Subject to clause 16.1.2, if we have specified in the Agreement to provide ongoing Services (such as webhosting Services), you may cancel your Services by providing us with 30-days written notice. For purposes of security and protection of your interests we will not accept cancellation notices other than in writing from you.
- If you have specified in your Application to receive ongoing Services on a fixed term basis, on termination under clause 16.1.1 you must pay us all Charges that would be payable during that fixed term.
16.2 Termination of ongoing Services by us
- Unless otherwise stated, this Agreement may be terminated by us by giving you 30-days notice in writing. Such notice may be sent by email to the email address supplied by you.
- We may terminate this Agreement, without liability to you, immediately and without notice to you where:
- you breach a material term of this Agreement, which includes any terms relating to your use of the Service and any term of our Acceptable Use Policy, and:
- that breach cannot be remedied; or
- that breach can be remedied, but you do not remedy that breach within 7-days of receipt of a notice from us requiring the breach to be remedied;
- you are the subject of an Insolvency Event;
- we reasonably suspect that you, an End User or any person in connection with the Service has committed fraud, is engaged in fraudulent activity or where evidence suggests illegal conduct in relation to the Service; or
- you are a natural person (and not a company) and you die.
- you breach a material term of this Agreement, which includes any terms relating to your use of the Service and any term of our Acceptable Use Policy, and:
16.3 Process for cancellations – Cooling Off Period
- 10X Media Limited in its absolute discretion may accept a cancellation for Services strictly subject to the following terms:
- you give written notice to 10X Media of your request to cancel in writing within 14 days from the Commencement Date;
- you pay all Charges for all work performed to the date of cancellation, which at a minimum is deemed to be at least one third of the deposit Charges that have been specified and invoiced to commence work.
- You agree that any Charges for Services that you have paid are non-refundable.
16.4 Consequences of termination
On termination of this Agreement:
- you must pay all outstanding Charges immediately; and
- we may delete all of your data (including Client Content) from any storage facilities after termination.
17: COMPLETION TIME-FRAMES
- You understand, agree, and acknowledge that 10X Media does not guarantee a time frame for completion of any Services. This is in part because it is difficult to complete Services without design involvement, approvals and participation coming in a timely and efficient way from you, the client. In addition, if you continue to submit additional content throughout the development process, or request additional modifications to The Project, the completion time frame is increased.
- Other factors that may influence the completion date of The Project and associated Services include, but are not limited to, complexity of your Project(s), availability of 10X Media personnel, payment status of your account, or other Intervening Event.
- If you do not respond to 10X Media communications and, as a result, 10X Media is not able to start or complete the Services, you are still responsible for all fees incurred including, but not limited to, design purchase price, set-up fees, enhancements purchased and any monthly hosting charges that begin accruing according to this Agreement.
18: CLIENT APPROVAL
- You understand and agree that if you do not respond within 30-days to 10X Media’ request for approval of the Project, or part thereof, that the Scope of Work Item/Project awaiting approval by you will be deemed completed and approved.
- You are responsible for testing the functionality of The Project, or part thereof, upon 10X Media’ request for approval, and notification that The Project or Scope of Work Item has been completed. This includes, but is not limited to, functionality of all website pages, interactive content, static content, dynamic content, database(s), e-commerce store, payment functions, galleries, forums, and anything else as specified in the Scope of Work.
19: CLIENT CONTENT
Without limiting any of the General Terms:
- We are not in any way responsible for the Client Content;
- You are liable and remain liable for the Client Content in all respects
- We are under no obligation to provide, source, monitor or edit Client Content. You are wholly responsible for providing, sourcing, approving, maintaining and editing Client Content for The Project.
- You agree to perform all further acts necessary to perfect any of the above rights granted by you to us, including the execution of deeds and documents, at our request.
- You represent and warrant that:
- you own the rights to all of the Material that you post;
- any fact stated in your Material is accurate;
20: ACKNOWLEDGEMENTS RELATING TO MOBILE APPLICATIONS
The Client acknowledges and agrees that:
- with regards to Services relating to Mobile Applications, we have no control over the policies of the Phone Manufacturers and their Application Distribution Channels (Apple App Store, Google Play Store, Amazon App Store, Windows App Store or other App Stores relating to The Project) with respect to the type of application and/or content that they accept now or in the future.
- we make no warranty that the phone applications developed for you will be accepted for Sale on the Phone Manufacturers Application Distribution Channels. If a Phone Manufacturer rejects the application any cost incurred to make the application saleable on the respective App Stores will be your responsibility.
- we are bound by the Developer Agreements for each Phone Manufacturers Platforms and subsequently any services provided by us are subject to you accepting those terms and conditions.
- we make no warranty that The Project will generate sales, increase business activity, profits or any other form of improvement for your business or any other purpose.
21: ACKNOWLEDGMENTS RELATING TO SOCIAL MEDIA MARKETING SERVICES
The following Service Specific Terms and Conditions are applicable if you are receiving Social Media Marketing Services from us.
In addition to the General Terms definitions, the following definitions also apply to these Service Specific Terms and Conditions:
- Social Media Account means an account created in your name with a Social Media Site;
- Social Media Marketing Services means any social media marketing services ordered by you, including, but not limited to, Facebook Advertising Campaigns, Facebook Account & Facebook Page Management, Twitter Advertising, YouTube Advertising, LinkedIn Advertising, or any other marketing services that we implement as part of your Social Media Marketing Services order;
- Social Media Page means a webpage on a Social Media Site created via a Social Media Account;
- Social Media Site means one or more of:
- Facebook at facebook.com;
- Twitter at twitter.com;
- LinkedIn at linkedin.com;
- Google+ at google.com;
- YouTube at youtube.com; or
- Google Places at google.com,
- Instagram at instagram.com
- as specified in your Scope of Work or as agreed from time to time.
- Supplied Content means all data, media or content provided by you to us for the purpose of receiving the social media marketing Services;
- Supplied Details means all information supplied by you, to us, for the purpose of receiving the social media marketing Services from us.
We will use reasonable efforts to provide to you the Social Media Marketing Services, including:
- setting-up Social Media Pages for you on the Social Media Sites as agreed in your Scope of work;
- setting-up a Social Media Account for you on the Social Media Sites as agreed in your Scope of Work (if required); and
- uploading your Supplied Content onto your Social Media Pages.
21.3. Information required
You agree to provide us with all information to enable us to provide the Social Media Marketing Services to you, and warrant that all Supplied Details are true and correct, and belong to you. You acknowledge that any failure by you to provide such requested information will be detrimental to our ability to provide the Service, and we will not be responsible for any resultant failure in delivering the Service.
21.4. Appointment as agent
You appoint us to act as your agent in providing the Social Media Marketing Services, including, but not limited to:
- access and utilise the Social Media Sites for the purposes of providing the Social Media Marketing Services;
- use your Supplied Details and Supplied Content for the purposes of providing the Social Media Marketing Services;
- enter into all applicable Social Media Site terms and conditions you are required to accept and agree to in using and accessing the Social Media Sites on your behalf; and
- if you are receiving ongoing Social Media Marketing Services from us as part of our Services to you, you agree for us to provide these services on an ongoing basis for the period you are receiving Services from us.
21.5. Password security
You will at all times keep your Social Media Account and Social Media Page passwords and log-in details secure. You agree that you are entirely responsible for when and how your Social Media Account or Social Media Page is used, including use by us in providing the Social Media Marketing Services in accordance with the Agreement.
21.6. Responsibility for content
You agree that you are solely responsible for all Supplied Information and Supplied Content and any use of it by us in providing the Service in accordance with this Agreement.
21.7. Licence to Supplied Details and Supplied Content
You grant us a licence to use, modify and adapt your Supplied Details and Supplied Content for the purpose of providing the Social Media Marketing Service to you and you agree to your Supplied Details and Supplied Content being published on your Social Media Pages.
21.8. Your use of the Service
You agree that:
- you are the owner of, or have the appropriate licences to, all Supplied Content;
- all Supplied Details belong to you, and are true and correct;
- you are responsible for all content displayed on your Social Media Page, and that we have no connection or responsibility either to you or any third party for any content displayed;
- you are solely responsible for your Social Media Page;
- your use (and our use on your behalf) of the Social Media Sites is at your own risk;
- unless you have opted to receive ongoing Social Media Marketing Services from us as part of our Services, our association with your Social Media Accounts or Social Media Pages is limited to our creation of your Social Media Accounts (if required) and Social Media Pages as your agent. Our association with your Social Media Accounts or Social Media Pages will cease immediately once your Social Media Accounts (if required) and Social Media Pages have been created and you have been notified of the same; and
- you have read, understood and agree to all applicable terms and conditions relevant to the Social Media Sites.
22: SUPPORT SERVICES
The following Service Specific Terms and Conditions are applicable if you are receiving website support services from us.
In addition to the General Terms definitions, the following definitions also apply to these Service Specific Terms and Conditions:
Support Services means any ongoing Services ordered by you or otherwise requested by you, or as specified in this Agreement, including, but not limited to; website support, mobile application support, content management support, social media support, email support, and on-going online marketing campaign management and support services.
- All Charges for Support Services provided by us are payable monthly in advance on the terms of our invoice issued to you, or as otherwise specified on the invoice.
- If you do not pay your Charges when they fall due, we may suspend your Support Services in accordance with this Agreement.
- If you do not wish to renew your Support Services at the end of any fixed period for provision of those Services, you must notify us 10 days prior to the end of that period (or end of the month if you have agreed to a month by month contract).
- If you do not notify us in accordance with clause 22.2(3), your Support Services will be automatically renewed for a further fixed contract period (of the same length as your initial period) at the end of the term and we will invoice you for the Charges associated with this renewal. You agree to pay the Charges set out in the invoice when they fall due.
- We may assign or novate all or part of our rights and obligations under this Agreement without your consent, provided that such assignment or novation is on terms no less favourable to you than the terms of this Agreement in existence immediately prior to assignment or novation.
- You cannot assign or novate all or part of your rights and obligations under this Agreement unless we agree to the assignment or novation in writing.
- When we communicate with you we do so by email. You agree that email communications are contractually binding in the same way as properly signed and dated paper sent by post.
- Where we provide goods or services without specific charge to you, then it (or they) is deemed to be provided free of charge, and not to be associated with any other goods or service for which a charge is made. Accordingly, there is no contractual nor other obligation upon us in respect of those goods or service.
- Nothing in this agreement or on Our Website shall confer on any third party any benefit or obligation.
- If any of these terms is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.
- In the event of a dispute arising out of or in connection with these terms or any contract between you and us, then you agree to attempt to settle the dispute by engaging in good faith with us in a process of mediation before commencing arbitration or litigation.
- We are not liable for any breach of our obligations resulting from causes beyond our reasonable control including strikes of our own employees.
- We may give any written notice to you in connection with, or as required by this Agreement, by sending the notice to you via email, post or fax or as otherwise indicated and service in any of these ways of notice is deemed to be effective. You must notify us in writing of any change to the address you have specified in your contact details provided to us.
- You may give any written notice to us to you in connection with, or as required by this Agreement, by sending the notice to:
- Email: [email protected]
- Or by mail: ATTN: 10X Media Pty Ltd, Suite 3, Level 27, 1 Farrer Place, Governor Macquarie Tower, Sydney, New South Wales 2000, AUSTRALIA
23.2 Governing law
This Agreement is governed by and must be construed in accordance with the laws applying in Australia. You and we submit to the exclusive jurisdiction of the courts of Australia. This agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
23.3 No waiver
A failure, delay, relaxation or indulgence by us in exercising any power or right conferred under this Agreement (such as a right that we have under this Agreement due to your breach of this Agreement) does not operate as a waiver of the power or right.
By using our website to make a purchase you agree to have read and understood 10X Media’s Terms of Service, and you agree that they form part of the contract between us. If you are under the age of 18 years, you confirm that you have brought these terms and conditions to the notice of your parent or guardian, and that person has agreed that you may buy our Services.
This website is the property of 10X Media Limited © 2009-2016. All rights reserved. All third-party trademarks are property of their respective owners. The display of third-party trademarks should not be taken to imply any relationship or license between 10X Media and the owner of the trademark(s), or to imply that 10X Media endorses the goods, services, or business of the owner of the trademark(s). The entire content of this website is copyrighted by 10X Media. Use of these trademarks and of the images and content on this website is prohibited unless otherwise authorized in writing by 10X Media.