AGREEMENT TO BE BOUND BY THESE TERMS & CONDITIONS:

By using Digital Animals services and signing up as a Client for any job, task or project, you, the Client, agree to be legally bound by these Terms & Conditions.

Please, read these terms carefully. By using the products and/or services of Digital Animals you agree to abide by these Terms & Conditions.

These T&C and any additional Terms of Sale (T.O.S.) or contract specific to a project, service, special offer or promotion set out the entire agreement between Digital Animals and the Client.

DESCRIPTION & DEFINITIONS

Digital Animals Agency Pty Ltd:

In these terms and conditions, Digital Animals Agency Pty Ltd, the Digital Animals Agency service, all services related to it, and all text, images photographs, user interface, “look and feel”, data and other content included in it from time to time (including, without limitation, the selection, coordination and arrangement of such content) are referred to as “Digital Animals”, “www.digitalanimals.com.au” “us”, “we”, “website” or “service”.

Client:

“Client” is defined as representing one business (company or entity) or person (sole trader). Client may also be referred to as “himself/herself” or “his/her” or “their” or “site owner” in this document. Client may also be referred to as the staff member, employee, agent or third party on behalf the Client.

Service:

Digital Animals provides the client various services
including, but not limited to:

  • Website Design and Development
  • Ecommerce Development and Consulting
  • Web and Internet Consulting
  • Website Maintenance and Security
  • Website and Email Hosting Service
  • SEO – Search Engine Optimisation Service
  • Digital Marketing Service
  • Google Ads / Online Advertising Service
  • Social Media Service
  • Online PR Service
  • Email Marketing Service

Deliverables:

For each project or job, Digital Animals follows a production process that is often divided into stages or steps. For each stage, specific deliverables are produced for the client which will be specified in a formal project contract or a formal job/project quote where applicable. A task, job or project will be considered completed where either the Client approves the task, job or project as being completed or where Digital Animals determines that the task, job, service or project is completed according to the project scope or the task / job definition and parameters as set out in a quote/project quote contract agreement or the relevant documentation like emails or meeting notes in the absence of a formal quote contract agreement.

Digital Animals may provide the Client with domain name registration, web and email hosting services, custom website design, website design, digital marketing services and consulting services and so on in accordance with the product and/or service the client has ordered.

Project Scope:

A document that defines and sets out what work or service or item or feature is to be included and / or completed for the project, job, task or service in question. The descriptions and definitions and parameters in a project scope document are intended to be clear to Digital Animals and to the Client as well as to any third party to judge and finalise the interpretation of any part of a project scope and the relevant task, job or project. However, there are often technical terms and technical definitions required to define the scope of any task or job or project or service as provided by Digital Animals which may then fall outside of the common comprehension of a Client without further explanation by Digital Animals or similar subject matter experts.

Estimates:

An estimate is an approximation of the hours or fees required to complete or deliver a task, job or project or service. Any final invoice or fee for the work approved by a Client based on an estimate will usually be close or similar to the estimated figure excluding variations to the project or changes in the scope. However, an estimate is not a fixed price and should not be viewed or assumed to be by a Client as such. An estimate is a guide to the final price only dependent on finalisation of any costs and/or requirements or the parameters of the scope of said job, task, project or service. 
Digital Animals will typically use an estimate during the early stages of project discussions or for ad-hoc works where Client and Digital Animals have together approved this billing / engagement model.
Digital Animals will usually follow up an estimate by providing a formal documented quote where the Client has given a general approval for the estimated fee or cost.

Any change to the requirements or the costs of a job or a project or a service will usually cause any formal quote or final invoicing to be different to an earlier estimate.

Quotes:

A quote is a specific fee or price that Digital Animals sets down for the requested task, job, project or service. A quote will include parameters or specifications and defined deliverables where practical. 
A quote will not vary in cost unless otherwise stated.

A quote forms a contract between the Client and Digital Animals for Digital Animals to complete and deliver to the client or on behalf of the Client the job, project, task or service defined or listed in the quote.
Any variations to the scope or requirements requested by the client may be quoted separately with a set fee or price for that job or project or task or service at the discretion of Digital Animals. 
Quotes will be issued to Clients using an online delivery and documentation service known as an online quoting system. Each quote is uniquely numbered and stored online by the system. A quote will be prepared and issued to a Client for the Client to review and approve or decline.

Once a Client approves a quote, the fee or price for the works listed in the quote is set and we agree to not vary that price unless the scope of the quote is varied by written agreement.

However, if the Client seeks to vary the quote, then we will either revoke and modify the quote or issue a new quote for the Client to approve.

Project Contract:

Quotes may also be issued or provided to a Client in the form of a project contract document. The terms and conditions of the contract will set out the fees and costs which are fixed according to the terms of the contract.

Time and Materials Retrospective Fees and Charges:

From time to time, a Client may request or direct Digital Animals to carry out work or services for the Client which was not defined or included in an existing project contract or quote or service agreement. In such cases, Digital Animals reserves the right to invoice the respective Client retrospectively for any and all such work or services based on time and materials and/or opportunity cost to Digital Animals.

Such work or service may be carried out immediately or as a priority by Digital Animals in service to the Client but will be carried out with a “good faith” understanding of the Client that the respective Client will honour the fees and charges invoiced to them accordingly.

Digital Animals will define the work or service and any hours completed or costs incurred to the Client in the invoice and/or by email in writing where this billing of a Client is applicable.  

Debugging Service and Quotes:

A debugging quote includes allowing a fixed amount of time for “debugging” of the identified issue(s). The amount of time in a debugging quote is based on an initial assessment by Digital Animals of the presenting issue(s) or problem(s).
Digital Animals will seek to do the following in the time quoted for a debugging quote / job:

  1. If Digital Animals can FIND and FIX any of the listed issues in the relevant debugging quote, Digital Animals will do so within the included time set out in the debugging quote,
  2. Or if Digital Animals can only FIND the cause or source of the issue(s), then Digital Animals will do so and then provide to the Client the applicable advice and/or a separate quote to FIX the issue,
  3. Or if Digital Animals cannot FIND the cause or source of the issue(s), then Digital Animals will report to the Client on what has been eliminated in the debugging investigation search, and Digital Animals will provide further advice and/or issue a new debugging quote to continue the investigation at the discretion of the Client.

FORMS AND RESPONSES

Forms:

Digital Animals provides online enquiry forms for Clients or prospective Clients to use to contact Digital Animals for an enquiry, a call back or a quote:

  • General Enquiry
  • Request a call back
  • Free quote

If requested, Digital Animals may call back the client.

If requested, Digital Animals may issue a Proposal with an Estimate or a Quote in respect of any deliverable proposed to be provided under these Terms & Conditions.

Digital Animals may decide, in its sole discretion, to deny a quotation request or information enquiry.

PROPOSALS, ESTIMATES AND QUOTES:

In response to a quote or a specific product or service request, Digital Animals may produce a proposal or a quote that will remain valid and open for acceptance by the Client for up to 30 days, unless otherwise agreed by Digital Animals, from the date of issue that may include any or any of the following:

  • Project Brief / Proposal
  • Project Scope
  • Job / Task Definition
  • Description and Features
  • Fees and Charges
  • Any other specifics or TOS related to the product, service or special offer

Digital Animals reserves the right to withdraw a proposal or quote at any time.

By approving any quote or project contract, a Client agrees to be bound by these terms and conditions and to pay to Digital Animals the agreed fees set out in the quote or project contract when Digital Animals requests payment or as otherwise set out in the quote or the project contract.

INVOICES, SUSPENSION AND TERMINATION

Invoices

All pricing is given in Australian Dollars.

Digital Animals invoices are due on the date of issue and are payable upon receipt by the Client unless otherwise agreed to in writing.

Any outstanding invoices for work completed or services provided to the Client by Digital Animals requires payment in full due on receipt of the invoice unless otherwise agreed to writing between the parties. On completion of a task, job or project the client is obliged to pay the balance of the invoice in full.

Fees Due in Advance for Service

Some services including, but not limited to, hosting fees and Search Engine Opimisation fees are due in advance for the applicable period as noted in the invoice. Such fees and the related invoice must be paid in full prior to the commencement of the applicable service period be that one month or one year.

Quote, Job or Project Completion

Once a Client approves the job or task to “go live” or where Digital Animals defines the job or task as being “completed” according to the scope or parameters set out in the quote, an invoice will be issued to the Client with payment on that invoice due immediately unless otherwise agreed to in writing between the parties.

Any warranty work that Digital Animals will carry out to fix / correct any bugs or faults in the website or system as reported by the Client or as found by Digital Animals that may be covered by warranty or by the scope of the task, job or project will be completed as soon as reasonably possible by Digital Animals.

A revision, where allowed and applicable, to the design or function of the website or system that may be included in the scope of the task, job or project will be completed as soon as possible by Digital Animals.

Digital Animals reserves the right to postpone or delay or refuse warranty fix work or revisions or enhancements to a website or system for the Client if the Client has overdue outstanding invoices for any job, task or project.

Project Contract Payment Milestones:

For each project contract, there are typically payment milestones that will occur at various stages or points during the timeline of project. For each payment milestone, a fee is due as set out per contract or quote agreement which will be invoiced at the time of the payment milestone being reached with payment by the Client on that invoice due immediately unless otherwise agreed to in writing between the parties.

Suspension:

If the client defaults on their payment or otherwise fails to pay their account with Digital Animals as per the terms under this agreement, Digital Animals reserves the right to suspend services and to apply administrative fees of $170.00 (+ GST) per hour, plus any other costs that may have been incurred, to reactivate the services.

Refunds:

Hosting fees, SEO (Search Engine Optimisation) fees, Digital Marketing service fees and all service fees charged, unless otherwise specified, are non-refundable for the term / service / product paid for by the Client.

Termination:

If the client chooses to discontinue the services supplied by Digital Animals and the Client has paid all monies owed to Digital Animals, Digital Animals will help the client to transfer their Domain Name to another provider/agent if requested to do so by the Client. Charges to the Client may apply if the work required or requested to complete the transfer goes beyond or outside the standard domain transfer approvals processes.

Digital Animals may opt to discontinue services if an amount payable to Digital Animals is overdue or to take down a website permanently in any case where an amount payable is overdue by more than 30 days. In any such event, the client remains liable for the total cost of the contract including all disbursements; unless otherwise agreed in writing between Digital Animals and the client.

Digital Animals may terminate any agreement immediately if the client breaches any of these Terms & Conditions, or if he/she is a company going into insolvent liquidation, or if the client is a person he/she is declared bankrupt.

Digital Animals reserves the right to discontinue services and terminate the Client at the sole discretion of Digital Animals where Digital Animals provides the Client notice in writing of said termination.

Debt Collection:

Upon default by the Client in regard to any obligation under their agreement with Digital Animals and where the Client fails to rectify the default after notification by Digital Animals, the Client authorises Digital Animals to notify any debt collection agency of the default and charge said debt collection agency with collecting the outstanding debt owed to Digital Animals by the Client.

Should this occur then at Digital Animals sole discretion it may terminate the contract and/or service being provided to the Client at which time the full outstanding balance for the remainder of the minimum term in the relevant agreement or payments shall be due in full.

Digital Animals at its sole discretion may choose to apply to VCAT (Victorian Civil and Administrative Tribunal) https://www.vcat.vic.gov.au/ to have a legal ruling handed down by a VCAT Member on whether or not the Client is required to pay Digital Animals any money to Digital Animals relating to overdue invoices and/or costs or time lost by Digital Animals in the process of pursuing payment for overdue invoices from the Client. Digital Animals reserves the right to invoice and charge the Client for debtor administrative processing of the debt and debtor management time incurred by Digital Animals relating to the matter for the respective Client.

 

DIRECT DEBIT AGREEMENTS:

  • Direct Debit agreements may be offered to a Client on a minimum term or no minimum term basis
  • Clients pay an initial payment on the date and for the amount specified on the Service Agreement. Debits then commence on the 1st of every month (or as per the individual Direct Debit Request agreement).

Minimum Term:
Should the client want to end their Direct Debit contract before the agreed minimum term as agreed in the Direct Debit Request Service Agreement with with Digital Animals and with Digital Animals, the client is liable to pay immediately the full outstanding balance for the remainder of the minimum term plus any debt collection fee and charges as per the “Debt Collection” clause.

No Minimum Term:
Direct Debits continue ongoing month to month indefinitely until cancelled. Clients may request to cancel their Direct Debit agreement at any time. Clients must give 10 business days’ notice prior to the next direct debit date when cancelling a no minimum term agreement.

Where the service / work has already been supplied and/or completed, the relevant direct debit charge due for that service / work all payments will continue to be charged and collected from the Client until the required minimum amount due has been paid to Digital Animals.

Cancellation of a Direct Debit Request Agreement:

Should the Client decide to cancel their Direct Debit Request agreement with Digital Animals before the minimum term has been completed as agreed in the Direct Debit Request Service Agreement with Digital Animals / PeopleHub, the client is liable to pay the full outstanding balance for the remainder of the minimum term to Digital Animals plus any debt collection fees and charges as per the “Debt Collection” clause herein.

INTELLECTUAL PROPERTY

Digital Animals is the copyright owner of all works created or developed by Digital Animals for a client unless otherwise agreed to in writing. When payment for the product or service is made in full by the client for the product or service, the client is licensed to use the product or service for its intended use within the context of their business and the product itself. However, the client is restricted from selling the product or promoting the product as their own unless otherwise agreed in writing between the Client and Digital Animals.

Digital Animals claims no intellectual property rights to works created by any third party designers or developers that may be used from time to time, such rights remain with the relevant third party.

MORAL RIGHTS

As a creator of copyright material, Digital Animals has the following rights:

  • To be attributed when its work is used;
  • Not to have its work falsely attributed to someone else, nor to have the altered work attributed as if it were unaltered; and not to have the work treated in a manner that would prejudice Digital Animals’s honour or reputation.

INTERNATIONAL LICENSING REQUIREMENTS

Digital Animals may display its own copyright and intellectual property notices on any websites that Digital Animals develops and the client (or any third parties related to or engaged by the client) must not remove, obscure, deface or alter such copyright and intellectual property notices except by agreement in writing with Digital Animals.

THIRD PARTY

The client agrees that in the provision of web design services by Digital Animals we may utilise the services of third party contractors, and that we may pass on to such contractors any information or materials, including design brief and data, provided to us by you.

In the event any material necessary for the production of the project must be passed on to a third party, Digital Animals will incur no liability for losses incurred in transit, or due to the delay of the shipper of the third party.

Digital Animals may accept to maintain and secure a website that is not hosted by Digital Animals’s third party. In that case, the client will refer to Digital Animals fees and charges for the requested services.

AGREEMENT NON EXCLUSIVITY

The client acknowledges that Digital Animals is providing services to the client on a non-exclusive basis and that Digital Animals may provide services and products of the same or a similar nature to any other party (provided that in doing so it does not breach privacy).

Digital Animals shall be free to reproduce, use, disclose display exhibit, transmit, perform, create derivative works, and distribute any items unless specifically agreed otherwise. Further, Digital Animals shall be free to use any ideas concepts know-how or techniques acquired in construction of sites for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products and other items incorporating such information unless specifically agreed otherwise.

Digital Animals retains the right to use the completed project and any preliminary designs for the purpose of design competitions, future publications on design, educational purposes, marketing materials, and portfolio. Where applicable the client will be given any necessary credit for usage of the project elements.

WARRANTIES & LIABILITIES

Limited Warranty:

Digital Animals provides a limited warranty for websites and systems or development works that are developed and/or designed by Digital
Animals. This warranty is valid for up to 90 days from the date of launch of the website or system or from the date that Digital Animals determines that the website or the job or system is ready to launch unless otherwise agreed to in writing between the parties. This limited warranty applies to works performed by Digital Animals that are “in scope” for a project scope and contracted project or that are clearly specified in the applicable written quote.

Where applicable for any bug or problem or fault with the noted or reported function or element that is covered by this limited warranty
where the function or element is deemed to be “not working” when assessed by Digital Animals against the project scope or the written quote specifications, Digital Animals reserves the right to “fix” the bug or problem or fault in the website or system at no cost to the Client where Digital Animals determines that the bug or problem or fault is because of relevant, respective completed works performed by Digital Animals during the execution of the works in question.

This warranty is voided if the Client or a third party acting on behalf of the Client is issued with FTP or Shell or MySQL or similar access to the website / system hosting or the relevant hosting control panel by Digital Animals.

This warranty may be voided if a Client or a third party acting on behalf of the Client installs any extensions or plugins or additional software into the website or system without the express written permission and approval of Digital Animals.

This warranty does not include any issues or faults or incompatibilities that are caused by third party software, systems, extensions, plugins or similar.

Website:

Digital Animals will ensure that any site or application will function correctly at the time of the website development and going “live” when viewed with the current versions of the following internet browsers; Mozilla Firefox, Google Chrome and Apple Safari, unless otherwise agreed in writing.

Any warranty or guarantee provided by Digital Animals for a website is conditional upon the website being hosted by Digital Animals on hosting servers run and operated by Digital Animals that have restricted access to the hosting server and/or the hosting control panel for the hosting server.

Any warranty or guarantee provided by Digital Animals for a website is rendered null and void if the client or any other third party accesses the website or the relevant website server via an FTP connection or hosting control panel.

Digital Animals can offer no guarantee of correct function with all browser software in future releases of any internet browser. However, Digital Animals will offer and provide a quote for services to modify the website (where possible) to cause the site to correctly function and/or correctly render in the changed version of an internet browser.

Where any Client or agent or party acting for or on behalf of the Client acts on or in the website or system that causes disruption or error to the website or system, Digital Animals is not liable for any damages or losses that Client suffers and the Client agrees to be liable for any and all costs associated or incurred with fixing the error or disruption including any fees charged by Digital Animals to investigate or review or repair or develop solutions for the error.

Search engine optimisation services:

Whilst Digital Animals will try to improve the position of the client’s Website in the Search Engine results in response to a search request, we do not warrant that this effort will be successful nor can Digital Animals warrant the time that the position or “keyword ranking” of a website / webpage in a search engine will be held by that respective search engine.

The Client agrees that Digital Animals cannot be held responsible for any changes to the position of the client’s Website in the Search Engines results pursuant to the provision of search engine optimisation services by Digital Animals.

Copyright and Intellectual Property:

Digital Animals is not responsible for the contents and data of any web site that we design for the client, and upon publication the client must satisfy themselves that the website will comply with all applicable laws, and codes of practice governing the use of websites and related services. This includes the intellectual property and copyright ownership of all material that the client has provided to Digital Animals.

Digital Animals is similarly not responsible for the client’s subsequent use of the site and compliance of various Commonwealth and state or international legislations including matters in or relating to countries other than Australia.

Domain Name:

Digital Animals is not responsible for the client’s choice of domain name and the legal consequences that the domain name use could occur relating to the Trademark and Competition or the AuDa governing laws or any international legislations including matters in or relating to countries other than Australia.

Client’s Third Party:

Digital Animals is solely NOT responsible for the performance of the product or service if the client installs or orders another third party to install anything such as software that would alter or damage the website and its functionality. Furthermore, the client agrees to pay to Digital Animals for any charges or fees incurred by Digital Animals for the repair of any product or service if the client or their third party installs any unapproved software into the product or service supplied by Digital Animals.

Data and Proofing:

Digital Animals shall make every effort to ensure the final product is free of any grammatical and spelling errors, before giving the final product to the client.

Digital Animals is not responsible or held liable for any errors contained in the final product after the final product, this remains the final responsibility of the client.

Digital Animals cannot take responsibility for any copyright or privacy infringements caused by materials submitted by the client and reserves the right to refuse use of any such material unless proof of permission is provided if requested.

Hosting:

Digital Animals shall use reasonable endeavours to provide continuing availability of the hosting server and the services but Digital Animals shall not, in any event, be liable for service interruptions or down time of the server.

Digital Animals operates and provides hosting servers that are delivered as a managed service which are ordinarily restricted from client access or third party access.

Digital Animals does not ordinarily provide clients or third parties with access to the hosting servers in any of the following methods or means; FTP, CPanel, WHM, Shell or via any other similar means or method. That if a client formally requests and is provided access to their hosting server by Digital Animals, upon receipt of said request, via FTP or any hosting control panel, this will void any warranty or guarantee including the 1st Level Support provided by Digital Animals.

Digital Animals will not be liable for any costs incurred, compensation for loss of earnings due to the unavailability of the site, servers, software or any material provided by its agents.

Hosting – 1st Level Support:

All CMS or ecommerce websites hosted by Digital Animals include a limited time of support 1st Level Support service per calendar month which includes standard tasks on the hosting control panel such as setting up email accounts or domain name parking. It also includes general support for standard tasks and functions in the CMS or ecommerce system.

If the allotted or defined support time for a particular Client service is not used in any given month, the included support time expires at the end of the month and does not roll over to the subsequent month.

Custom hosting plans may include additional hours of 1st level support where defined and agreed to in writing.

Digital Animals reserves the right to retrospectively charge and invoice any Client where their use of  1st level support provided in a given calendar month will be charged at the standard hourly rate applicable.

1st Level Support may be rendered null and void if the client accesses the hosting server using FTP or the hosting control panel at the discretion of Digital Animals.

Loss:

In no event will Digital Animals be liable to any party including the client for any indirect, punitive, special, incidental or consequential damage or loss, financial or otherwise, in connection with or arising out of these Terms (including for loss of profits, use, data, or economic advantage), regardless of how it arises. The client will indemnify Digital Animals from and against any claim by any party claiming any such damage against Digital Animals.

Digital Animals will not be liable for any costs incurred or compensation for loss of earnings due to the unavailability of the site, servers, software or any material provided by Digital Animals or its agents / third party partners.

Technology Compatibility:

Digital Animals will ensure that any website or application will function correctly on the server to which it is initially installed.

Digital Animals can offer no guarantee of correct function with all browser software including future releases.

General Liabilities:

Digital Animals may from time to time and without notice or liability to the client suspend any of the services if the reason for doing same is an event beyond the reasonable control of Digital Animals.

Digital Animals will not be liable or become involved in any disputes between the site owner and their clients and Digital Animals cannot be held responsible for any wrongdoing on the part of a site owner.

GOVERNING LAW

These terms and conditions and any agreement entered into by Digital Animals or service provided by Digital Animals that arises in a dispute or legal matter shall be governed by and interpreted in accordance with the law for the time being enforced in the State of Victoria, Australia, and each party submits to the jurisdiction of the State of Victoria, Australia.