1. Definitions
1.1 – “InBlue” shall mean InBlue Web Media Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of InBlue Web Media Pty Ltd.
1.2 – “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by InBlue to the Client.
1.3 – “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 – “Goods” shall mean Goods supplied by InBlue to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by InBlue to the Client.
1.5 – “Services” shall mean all Services supplied by InBlue to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 – “Price” shall mean the price payable for the Goods as agreed between InBlue and the Client in accordance with clause 3 of this contract.
2. Acceptance
2.1- Any instructions received by InBlue from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by InBlue shall constitute acceptance of the terms and conditions contained herein.
2.2 – Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 – Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of InBlue.
2.4 – The Client shall give InBlue not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by InBlue as a result of the Client’s failure to comply with this clause.
3. Price And Payment
3.1 – At InBlue’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by InBlue to the Client in respect of Goods supplied; or
(b) InBlue’s quoted Price (subject to clause 3.2) which shall be binding upon InBlue provided that the Client shall accept InBlue’s quotation in writing within thirty (30) days.
3.2 – InBlue reserves the right to change the Price in the event of a variation to InBlue’s quotation.
3.3 – At InBlue’s sole discretion a deposit may be required.
3.4 – At InBlue’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment for approved Clients shall be made by instalments in accordance with InBlue’s payment schedule.
3.5 – Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
3.6 – Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and InBlue.
3.7- GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4. Delivery Of Goods
4.1 – At InBlue’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at InBlue’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by InBlue or InBlue’s nominated carrier).
4.2- At InBlue’s sole discretion the costs of delivery are:
(a) in addition to the Price; or
(b) for the Client’s account.
4.3 – The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then InBlue shall be entitled to charge a reasonable fee for redelivery.
4.4 – Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
4.5 – The failure of InBlue to deliver shall not entitle either party to treat this contract as repudiated.
4.6 – InBlue shall not be liable for any loss or damage whatever due to failure by InBlue to deliver the Goods (or any of them) promptly or at all.
5. Content Of Web Pages And Undertakings
5.1 – The Client is solely responsible for the content of the web page. InBlue is not responsible for proofreading any content unless specifically agreed in writing. Any spelling errors wil be the sole responsibility of the client.
5.2 – InBlue makes no representations to the Client on the functionality or content of the Web site.
5.3 – The Client is solely responsible for dealings with persons accessing the data or webpage and the Client warrants that they will not refer complaints or inquiries to such data to InBlue.
6. Web Hosting
6.1- If the Client selects to organise their own web hosting arrangements, final exported sites will be uploaded to your preferred host company or supplied on disc as per the quoted price. Construction files of the site can supplied on request and at InBlue’s sole discretion may incur a fee.
6.2- InBlue accepts no responsibility for down times, delays, breakdowns or data loss caused by Internet Service Providers.
7. Risk
7.1- If InBlue retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
8. Title
8.1 – InBlue and Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid InBlue all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to InBlue in respect of all contracts between InBlue and the Client.
8.2 – Receipt by InBlue of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then InBlue’s ownership or rights in respect of the Goods shall continue.
8.3 – It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until InBlue shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from InBlue to the Client InBlue may give notice in writing to the Client to return the Goods or any of them to InBlue. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) InBlue shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to InBlue then InBlue or InBlue’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as InBlue has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for InBlue; and
(f) the Client shall not deal with the money of InBlue in any way which may be adverse to InBlue; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of InBlue; and
(h) InBlue can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that InBlue will be the owner of the end products.
9. Client’s Disclaimer
9.1- The Client hereby disclaims any right to rescind, or cancel any contract with InBlue or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by InBlue and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgement.
10. Defects
10.1- The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify InBlue of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford InBlue an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which InBlue has agreed in writing that the Client is entitled to reject, InBlue’s liability is limited to either (at InBlue’s discretion) replacing the Goods or repairing the Goods. Where the Client is a consumer as defined in the Trade Practices Act 1974 or the Fair Trading Acts, then the Client shall be entitled to either a refund, repair or replacement of the Goods.
10.2- Goods will not be accepted for return other than in accordance with 10.1 above.
11. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
11.1- Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
12. Warranty
12.1- Subject to the conditions of warranty set out in clause
12.2 InBlue warrants that if any defect in any workmanship of the web site provided by InBlue becomes apparent and is reported to InBlue within one (1) months of the date of delivery (time being of the essence) then InBlue will either (at InBlue’s sole discretion) replace or remedy the workmanship.
12.2- The conditions applicable to the warranty given by clause are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to properly maintain (ii) failure on the part of the Client to follow any instructions or guidelines provided by InBlue; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and InBlue shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without InBlue’s consent.
(c) in respect of all claims InBlue shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
13. Intellectual Property
13.1 – Where photos are purchased by InBlue from a third party for the use for either print or web it is the responsibility of the client to alert InBlue when the license falls due/expires and they are responsible for renewing this license and all fees associated with this renewal whether past or future. InBlue takes no responsibility for renewal of these images once they have expired.
13.2 – The Client warrants that all designs or instructions to InBlue will not cause InBlue to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify InBlue against any action taken by a third party against InBlue in respect of any such infringement.
13.3 – The Client warrants that all designs or instructions to InBlue will not cause InBlue to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify InBlue against any action taken by a third party against InBlue in respect of any such infringement.
14. Default & Consequences of Default
14.1 – Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
14.2- If the Client defaults in payment of any invoice when due, the Client shall indemnify InBlue from and against all costs and disbursements incurred by InBlue in pursuing the debt including legal costs on a solicitor and own client basis and InBlue’s collection agency costs.
14.3 – Without prejudice to any other remedies InBlue may have, if at any time the Client is in breach of any obligation (including those relating to payment), InBlue may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. InBlue will not be liable to the Client for any loss or damage the Client suffers because InBlue has exercised its rights under this clause.
14.4 – If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
14.5 – Without prejudice to InBlue’s other remedies at law InBlue shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to InBlue shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to InBlue becomes overdue, or in InBlue’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
14.6 – InBlue Web Media retains the right to add a link on any website it designs and builds with its wording at InBlue’s discretion with the link back to InBlue home page.
15. Security And Charge
15.1 – Despite anything to the contrary contained herein or any other rights which InBlue may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to InBlue or InBlue’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that InBlue (or InBlue’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should InBlue elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify InBlue from and against all InBlue’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint InBlue or InBlue’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause.
16. Suspension Of Services
16.1 – InBlue reserves the right to suspend services in any case where the Client fails to perform their obligations under this and any associated agreements, including but not limited to the suspension of the Client’s websites.
17. Cancellation
17.1 – InBlue Web Media may discontinue services if an amount payable to InBlue Web Media is overdue or take down a website permanently in any case where an amount payable is overdue by more than 7 days. In any such event, you remain liable for the total cost of the contract including all disbursements; unless otherwise agreed between the parties. Furthermore, InBlue Web Media will not refund ( in part or in whole) any deposits received for the commencement of work, under any circumstances unless agreed firstly in writing by InBlue Web Media. InBlue Web Media reserves the right to keep all funds from the deposit if work on a job has commenced and is terminated by either party. InBlue Web Media shall not be liable for any loss or damage whatever arising from such cancellation.
17.2 – In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by InBlue (including, but not limited to, any loss of profits) up to the time of cancellation.
18. Privacy Act 1988
18.1 – The Client and/or the Guarantor/s agree for InBlue to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by InBlue.
18.2 – The Client and/or the Guarantor/s agree that InBlue may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the credit worthiness of Client and/or Guarantor/s.
18.3 – The Client consents to InBlue being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
18.4 – The Client agrees that personal credit information provided may be used and retained by InBlue for the following purposes and for other purposes as shall be agreed between the Client and InBlue or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by InBlue, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
18.5 – InBlue may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
19. General
19.1 – If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 – These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
19.3 – InBlue shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by InBlue of these terms and conditions.
19.4 – In the event of any breach of this contract by InBlue the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
19.5 – The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by InBlue.
19.6 – InBlue may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
19.7 – InBlue reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which InBlue notifies the Client of such change.
19.8 – Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
19.9 – The failure by InBlue to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect InBlue’s right to subsequently enforce that provision.
20. The use of InBlue Web Media for a SEO service is at the Customer’s own risk
The Customer acknowledges that InBlue Web Media makes no warranty that a search engine optimisation will lead to or improve any increase in sales, profits or any other form of improvement for the Customer’s business or any other purpose.
To the fullest extent permissible by law, InBlue Web Media shall not be liable to the Customer for any damages, including without limitation any direct, indirect, special, punitive, incidental or consequential damages (including but not limited to damages for loss of business profits, business interruption, loss of programs or information, loss of profits or goodwill or loss of use of facilities or equipment), or any other damages arising whether arising from the negligence of InBlue Web Media or otherwise.
Where liability cannot be legally excluded, the liability of InBlue Web Media shall be limited to the cost of supplying the service again.
The Customer agrees to indemnify InBlue Web Media for any third party claim for damages arising out of or in any way connected with the supply of services by inblue.com.au to the Customer, including without limitation any direct, indirect, special, punitive, incidental or consequential damages (including but not limited to damages for loss of business profits, business interruption, loss of programs or information, loss of profits or goodwill or loss of use of facilities or equipment), or any other damages arising whether arising from the negligence of InBlue Web Media or otherwise.
The Customer expressly agree to indemnify and hold harmless InBlue Web Media, its subsidiaries, affiliates, officers, agents and other partners and its and their respective employees from and against all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys fees and disbursements and court costs) arising from or in connection with the Customer’s information, the Customer’s use of InBlue Web Media search engine optimisation services.
InBlue Web Media does not refund any money received from clients for any past SEO work that they have been asked to carry out. All monies received by InBlue Web Media for any SEO work will not be refunded at any stage even if the client cancels the SEO service.
21.Client Responsibilities and Obligations
You must follow all instructions provided by InBlue Web Media and provide to InBlue Web Media, in a timely manner, all information and materials requested by InBlue Web Media.
All content must be provided in the format specified by InBlue Web Media. Please note that excessive instructions, or links to content on other third party sites for retrieval will not be accepted.
InBlue Web Media will request feedback and changes at certain stages of undertaking the process of designing and developing your website. These changes and amends must be sent to InBlue Web Media in only one email. Sending excessive or multiple emails may cause important details to be missed and may result in you incurring additional charges.
As soon as your website is uploaded and made live online or handed over to you, any further work or changes will result in you incurring additional costs.
22. Project Timelines
InBlue Web Media will provide you with an estimate that your site can be designed and built.
This time frame is an estimation only.
You must make every effort to follow the instructions provided by InBlue Web Media and provide the required information to InBlue Web Media in order to facilitate delivery times and correct specifications.
Delays in providing the required information to InBlue Web Media may result in delays in product delivery and also may result in you incurring additional charges for administration time.
InBlue Web Media will make all reasonable efforts to provide the product by the estimated date but do not accept liability for any costs incurred, loss or damage (including consequential loss or damage) compensation or loss of earnings due to any failure to meet agreed deadlines.
If you require InBlue Web Media to make changes to your web site after your site is handed over to you, you will be required to pay for this work at the hourly rate. All work must be paid for upfront and will be quoted for on request.
23. Content + Design Restrictions
InBlue Web Media include a set number of rounds of changes during its website design + development phase. Any extra changes required by you may incur additional costs and such extra changes can be purchased during the sales process.
Changes must be submitted in one email and one email of changes (within the scope of the project) is considered one round of changes.
Please ensure that you limit your changes to comply with the agreed specifications. Failure to do this may result in you incurring additional costs.
InBlue Web Media may include a link to its own website at the footer of your website and, where such link is so included, you must not take any steps to remove this link. InBlue Web Media reserves the right to change any such links from time to time. If you do not want the back-link on your website we will negotiate a fee for the removal of the links.
All prices quoted are valid for 30 days only from the date of written quotation.
24. Suspension of Services
InBlue Web Media reserves the right to suspend/cancel any or all services provided to you, if:–
You have any outstanding invoices or accounts;
Your account is in dispute or the subject of a dispute resolution procedure, court order, judgment, finding or determination;
You fail to comply with any provision of these terms and conditions or any other policy, directive or requirement notified to you by InBlue Web Media.
If you have not paid for the hosting of your website( which InBlue Web Media has paid for on your behalf) InBlue Web Media reserves the right to terminate your hosting. Hosting will only resume once invoices have been paid. If the customer’s website has been terminated due to cancellation of hosting, InBlue Web Media can reinstall the website at a cost of $195 + GST providing the client has a backup of the website.
Are deemed rude, offensive, abrupt or to staff or directors of InBlue Web Media
25. Refund Policy on Website
Once we have commenced work on your project no refund is available on the 50% deposit paid for your project. Work may include, but is not limited to; contact between yourself and an Account Manager and/or website designer from InBlue Web Media, the commencement of wireframes/prototypes by InBlue Web Media for your project, the commencement of design concepts by InBlue Web Media for your project and other work undertaken by InBlue Web Media in relation to your project.
26. Browser Compatibility
InBlue Web Media will make every effort to ensure websites are designed to be viewed by the majority of visitors. WebSites are designed to work with the main browsers Internet Explorer and Mozilla Firefox latest releases. You understand that we cannot guarantee correct functionality with all browser software across different operating systems. If you require the website to comply with other browsers this may not be possible.
27. Viewing Website
Unless otherwise specified your website has been designed to be viewed on a desk top – if you require your website to be iphone, ipdad, tablet or android compatible, this will need to be quoted for separately by InBlue Web Media.
