Terms and Conditions
Milkman Matty is the trading name for the Sole Trader Matthew Stubbins. The Australian Business Number for Milkman Matty is 74 629 419 481; the email address for contacting is firstname.lastname@example.org and telephone number is 0407-129-015.
1.1 In these Conditions, the following definitions apply:
Annual Fee: all expenses incurred or to be incurred by the Supplier to maintain or register the Domain Name (‘.com’, ‘.com.au’, ‘.org’, ‘.net’, or any other domain name extension), to host the website or any other operating costs needed to maintain the website.
Business Day: 5pm-7pm (Australian Eastern Time Zone) any day other than a Saturday, Sunday or public holiday in Queensland, Australia.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 13.6.
Contract: the contract between the Supplier and the Customer for the supply of the Services in accordance with these Conditions.
Customer: the person whose order for Services is accepted by the Supplier.
Customer Materials: any and all content, images, materials, documents and the like from time to time supplied by the Customer in connection with the Website.
Deliverables: all documents, content, images, products and materials developed by the Supplier or its agents, contractors and employees as part of or in relation to the supply of the Services in any form or media, including drawings, maps, plans, diagrams, designs, pictures, computer programs, data, specifications and reports (including drafts).
Domain Name: the domain name proposed by the Customer in the Website Specification Form and agreed to by the Supplier.
Event Outside Its Control: any cause that prevents either party from performing and/or which delays the performance of any or all of that party's obligations under this agreement which arises from or is attributable to acts events omissions or accidents beyond that party's reasonable control including:-
- strikes, lock-outs or other industrial disputes; failure or deficiency of a utility service (including electric, power or gas) or transport network, power supply or any electronic, communication, transmission or information system (including the internet, local area network or virtual private network);
- accident, act of God, fire, flood, storm, explosion, accidental damage or earthquake, windstorm or other natural disaster;
- default of sub-contractors or suppliers;
- war, civil war, armed conflict, terrorist attack, riot, civil commotion, malicious damage, nuclear, chemical or biological contamination or attack, sonic boom;
- imposition of sanctions, embargo, breaking of diplomatic relations or similar actions;
- epidemic or pandemic;
- loss at sea, extreme adverse weather conditions;
- collapse of building structures, failure or breakdown of plant, machinery, computers or vehicles, shortage of supplies;
- failure or delay of any third party in the performance of its obligations to that party;
- compliance with laws and/or regulations.
Fees: the Set Up Fee, the Annual Fee and any other amounts payable by the Customer in accordance with the Contract.
IP Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights (or rights to apply therefor), and all similar or equivalent rights or forms of protection in any part of the world which may now or in the future subsist.
Services: the services to be provided by the Supplier pursuant to the Contract (such services to exclude marketing, including, search engine optimisation).
Set Up Fee: the amount notified by the Supplier to the Customer as the fee payable by the Customer for creation of the Website.
Specification: the Specification for the Website as set out in the Website Brief completed by the Customer and sent to the Supplier in accordance with the Contract.
Start Date: the date on which the Set Up Fee has been paid in full to the Supplier.
Supplier: Milkman Matty, Australian Business Number 74 629 419 481.
Visitor: a visitor to the Website.
Website: the website created by the Supplier for the Customer pursuant to the Contract and/or the website to be hosted by the Supplier in accordance with the Contract.
Website Brief: the form from time to time specified by the Supplier for completion by the Customer in connection with the Services.
1.2 In these Conditions, the following rules apply:
(b) A reference to a party includes its personal representatives, successors and permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes faxes and e-mails.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues, brochures or website are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or any other contract between the Supplier and the Customer for the supply of the Services.
2.3 A quotation for the Services given by the Supplier shall not constitute an offer. Quotations are only valid for 14 days from date of issue.
2.4 The Supplier shall be entitled to accept or reject orders for services in its absolute discretion. In particular the Supplier can reject orders if there was any mistake in the Supplier’s quote, if an order does not refer to the Supplier’s then current list price, if the relevant services have been discontinued and/or if specifications and/or prices have changed since the date of the quotation and/or order.
3. SUPPLY OF SERVICES
3.1 In consideration of the payment by the Customer of the Fees and subject to the performance by the Customer of its obligations under the Contract, the Supplier shall:-
(b) create the Website in all material respects in accordance with the Specification;
(c) provide the Services.
3.2 The following shall apply in relation to the Website:-
(b) following receipt of all items referred to in clause 3.2(a) (and, unless at the absolute discretion of the Supplier, not before), the Supplier shall commence construction of the Website and shall use all reasonable endeavours to create a copy of the Website for review by the Customer within 30 days of the payment by the Customer of the Set Up Fee. The Supplier shall notify the Customer when the Website is available for review;
(c) the Customer shall have a period of 10 days from receipt of notice from the Supplier that the Website is available for review, in which to notify the Supplier in writing of any changes and/or additions that the Customer reasonably requires to the Website so that the Website complies with the Specification in all material respects. All changes requested by the Customer pursuant to this clause 3.2 (c) must be notified by the Customer at the same time in one single notification; the Customer is not entitled to make more than one notification requiring changes. The Supplier shall make all such changes (so notified) as soon as reasonably practicable;
(d) the Supplier shall notify the Customer once the Supplier has carried out any changes as referred to in clause 3.2(c). The Customer shall have a period of 10 days (from receipt of the Supplier’s notice) in which to notify the Supplier in writing that the Website does not comply in all material respects with the Specification and/or that the Supplier has not carried out changes referred to in clause 3.2(c) in any material respect. If the Customer fails to give such a written notice, the Customer shall be deemed to have accepted that the Website complies with the Specification and that the Supplier has properly carried out all changes referred to in clause 3.2(c). If the Customer does give such a written notice, then the Supplier shall promptly make such changes to the Website so that the same complies in all material respects with the Specification and so that the changes referred to in clause 3.2(a) have been carried out in all material respects.
3.3 The Customer shall be deemed to have accepted that the Website complies in all material respects with the Specification (“Acceptance”) if (a) the Customer does not give a notice under clause 3.2(c) or 3.2(d) or (b) the Customer gives such a notice and the Supplier makes changes to the Website in accordance with such clauses or (c) the Customer notifies the Supplier that it accepts the Website or the Customer commences operational use of the Website.
3.4 The Supplier shall, subject to the timely payment of the Fees:-
(b) pay the fee to host the Website and register the Domain Name;
(c) provide matainence work, website changes or services at the Supplier's discretion subject to payment by the Customer of the Supplier's hourly rate from time to time in force;
3.5 The Supplier may include the one of the following statements on the home page of the Website:-
“Website by Milkman Matty”
“Website Developed by Milkman Matty”
“Website Created by Milkman Matty”
3.6 The Supplier will provide to the Customer the relevant information so that the Customer can access the Website in order to manage, vary and add to the content on the Website.
3.7 Any dates quoted for are approximate only, and the time of delivery is not of the essence. The Customer may request changes to quoted delivery dates, but the Supplier is not obliged to agree.
3.8 The Supplier shall not be liable for any delay in delivery of and/or failure to deliver the Services to the extent caused by an Event Outside Its Control or the Customer’s failure to provide the Supplier with all content, images, instructions or information that are relevant to the supply of the Services.
4.1 The Customer shall pay the following to the Supplier:-
4.2 the Annual Fee, payable in full for each year during the Contract. The Annual Fee shall be paid annually on each monthly anniversary of the Start Date.
4.3 All Fees are stated exclusive of GST which is not payable.
4.4 Time for payment of all Fees is of the essence. The Fees shall be payable whether or not the Website has gone 'live'.
4.5 The Supplier may in its absolute discretion accept payment via PAYPAL, EFT, direct debit, debit and/or credit card.
4.6 The Supplier may in its absolute discretion:-
(b) increase the Annual Fee not more than twice per annum with effect from any anniversary of the Start Date, provided that the Supplier shall give the Customer not less than 60 days notice of any such increase.
4.7 If the Customer does not accept any price increase referred to in clause 4.6 the Customer shall notify the Supplier that the price increase is not accepted, such notice to be sent to and received by the Supplier within 21 days of receipt by the Customer of the Supplier's notice of increase. If the Customer gives such a notice, then the Contract shall terminate on the last day of the month following the month in which the Supplier received the Customer's notice. If the Customer does not give such a notice, then the Customer shall be deemed to have accepted the price increase concerned. Time shall be of the essence in connection with the service of notices under this clause 4.6.
4.8 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment ("due date"), then (without prejudice to any other rights of the Supplier):-
(b) the Supplier can suspend provision of the Services and/or terminate the Contract and/or any other contracts with the Customer;
(c) the Supplier can require immediate payment in full of all other amounts owed by the Customer to the Supplier (whether or not such amounts have otherwise fallen due for payment);
(d) the Customer shall pay to the Supplier and indemnify the Supplier against any and all costs and expenses incurred by the Supplier (including legal costs) in connection with such failure to pay.
4.9 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any deduction, discount, abatement, credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
4.10 All amounts are payable in Australian Dollars (AUD).
5.1 Subject to clause 5.3, the Supplier warrants (“the Warranty”) that:-
(b) the Website will function substantially in accordance with the Specification for 30 days from acceptance. If the Website does not so perform, the Supplier will at no additional cost, carry out any work reasonably necessary to ensure that the Website does function correctly.
5.2 The warranty in clause 5.1(b) shall not apply if:
(b) the defect arises as a result of the Supplier following any drawing, design, instruction or specification supplied by the Customer and/or arises in connection with the Customer Materials;
(c) the Customer alters the Website without the written consent of the Supplier and/or other than in accordance with the Supplier’s written or oral instructions;
(d) the defect arises because of an Event Outside Its Control.
5.3 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
6.1 The Customer shall retain ownership of the Customer Materials.
6.2 The Supplier shall retain ownership of the Website (save for the Customer Materials) and the Domain Name.
6.3 The Customer grants to the Supplier an irrevocable non-exclusive royalty free licence of the Customer Materials for the purposes of the performance of the Services.
6.4 The Supplier grants to the Customer a licence during the Contract to use and access the Website for the purposes of the Customer's business.
6.5 The Supplier will use reasonable endeavours to ensure that the Website can normally be accessed for use, provided that the Supplier:-
(b) does not warrant that access will be uninterrupted or error free;
(c) is entitled to suspend (with or without notice) for any good reason including to carry out maintenance, repair, upgrades or development requested by the Customer;
(d) shall not be liable for any losses arising if access is prevented or interrupted due to an Event Outside its Control and/or for maintenance, repair, upgrades or development requested by the Customer.
7. CUSTOMER INDEMNITY
7.1 The Customer shall ensure that the Customer Materials do not infringe any applicable laws, regulations or third party rights and does not contain any material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any laws, regulations or third party IP Rights (“Inappropriate Content”).
7.2 The Customer acknowledges that the Supplier has no control over any content placed on the Website by the Customer and/or Visitors. The Supplier shall not monitor the content of the Website. The Supplier reserves the right to remove content from the Website where it reasonably suspects such content is Inappropriate Content, but the Supplier has no obligation to do so nor to monitor the Website.
7.3 The Customer shall indemnify the Supplier on demand against any and all costs, claims, losses, damages, liabilities and expenses suffered or incurred by the Supplier arising directly or indirectly out of:-
(b) any claim by any person in relation to the Website;
(c) any claim that the Website and/or the Customer Materials and/or any other material posted to, or linked to, the Website constitutes Inappropriate Content. (d) copyright infringement.
8.1 The Contract shall start with effect from the Start Date.
8.2 The Contract shall continue for a minimum term of 12 months and thereafter, unless terminated by either party giving to the other not less than one months written notice of termination to expire on any anniversary of the Start Date.
8.3 Either party may terminate this Contract by 30 days written notice to the other if that other is in material breach of the Contract and has failed to remedy that breach within 30 days of a written notice (from the party seeking to terminate) identify the breach with reasonable particulars and requiring that the same be remedied.
8.4 The rights of termination in this clause are in addition to the other rights of termination of the Supplier set out in the Contract.
8.5 Termination of the Contract shall be without prejudice to the accrued rights and remedies of the parties and in particular the Customer shall pay all Fees to and including the date of termination.
8.6 Provided that the Customer has paid to the Supplier in full all amounts payable by the Customer to the Supplier, the Supplier shall after termination of the Contract return to the Customer all elements of the then current Website that contain Customer Materials.
8.7 Subject to clause 8.6, after termination of the Contract the Customer shall not have any rights in the Website or the Domain Name and the Supplier shall be entitled to take down the Website and terminate all access to the Website and Domain Name and thereafter deal with the same as the Supplier thinks fit, including by provision of the Domain Name to a third party.
9. CUSTOMER’S INSOLVENCY OR INCAPACITY
9.1 If the Customer becomes subject to any of the events listed in clause 9.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may terminate the Contract and/or exercise any of the rights referred to in clause 4.8(b) and (c).
9.2 For the purposes of clause 9.1, the relevant events are:
(b) an encumbrancer takes possession of all or any of the business and/or assets of the Customer;
(c) the Customer is unable to pay its debts as they fall due;
(d) the Customer makes or proposes any composition or arrangement with its creditors.
(e) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 7.3(a) to (c) (inclusive);
(f) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
(g) the financial position of the Customer deteriorates to such an extent that in the opinion of the Supplier the capability of the Customer adequately to fulfil its obligations under the Contract has been placed in jeopardy;
(h) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.
10. LIMITATION OF LIABILITY
10.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(b) fraud or fraudulent misrepresentation;
(c) defective products or services under the Australian Consumer Law;
(d) any matter to the extent it would be unlawful for the Supplier to exclude or restrict liability.
10.2 Subject to clause 10.1:
(b) the Supplier’s total liability to the Customer in respect of all losses arising under or in connection with the Contract (save those referred to in clauses 10.2(a), 10.3 and 10.4), whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall be limited to 2 times the Set Up Fee (exclusive of GST).
10.3 Subject to clause 10.1, the Supplier shall not have any liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for indirect loss (other than any referred to in clause 10.2(a)) arising under or in connection with the Contract.
10.4 If a court of competent jurisdiction determines that the provisions of clause 10.3 are not valid and enforceable this clause 10.4 shall apply, but in the absence of such a determination this clause 10.4 shall not be of any effect. The Supplier's total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for indirect loss (other than any referred to in clause 10.2(a)) arising under or in connection with the Contract shall be limited to 2 times the Set Up Fee.
11. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract (save in respect of the payment of any sum due) to the extent that such failure or delay is caused by an Event Outside Its Control.
12. DATA PROTECTION
12.1 The Customer agrees to the Supplier using, analysing, dealing with and assessing any information about the Customer including any provided by the Customer or a third party (such as a credit reference or fraud prevention agency) including information as to late payments ("Customer Data") and to: –
(b) recover debts;
(c) comply with all applicable laws and regulations;
(d) undertake market research and to review and develop the Supplier's products and services;
(e) keep the Customer informed of the Supplier's products and services unless the Customer requests otherwise;
(f) process and deal with any complaints;
(g) verify the accuracy of information supplied by the Customer;
(h) deal with and/or in connection with reporting, fraud, crime, crime prevention and detection, financial risk assessment, money laundering checks and compliance (including for example, making enquiries of fraud prevention agencies, making enquiries of other suppliers, undertaking searches at the Electoral Register and with credit reference agencies, performing credit and identity checks, obtaining bankers' references and making any other enquiries as reasonably thought fit).
12.2 Third party agencies (for example fraud prevention, credit reference agencies and other suppliers) may maintain records of any enquiry and information given to them. They may share Customer Data (and the results of any searches) with the Supplier and other organisations to, amongst other things, recover or retrace debts and for credit, fraud, crime prevention and money laundering purposes.
12.3 The Supplier may disclose Customer Data as permitted by law and as follows:
(b) to comply with legal obligations;
(c) to protect the Supplier's rights, property, safety, customers or others. This includes exchanging information with other companies and organisations for the purposes of fraud protection and credit risk reduction;
(d) to the persons referred to in clause 12.1(h).
12.4 The Supplier will use the Customer Data to keep the Customer informed of the Supplier's products and services by letter, telephone (including text messages), electronically (including e-mail) or otherwise. The Customer consents to the use of the Customer Data in this way unless the Customer tells the Supplier that the Customer does not wish the Supplier to use the Customer Data in this manner. In order to do so, please e-mail to the Supplier or telephone the Supplier at: email@example.com or telephone 0407 129 015.
13.1 ASSIGNMENT AND SUBCONTRACTING.
(b) The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights and/or obligations under the Contract without the prior express written consent of the Supplier.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.2(a); if sent by pre-paid first-class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, at 9:00am on the Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(b) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
13.4 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.5 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
13.6 Variation. Subject to any rights expressly reserved to the Supplier to make changes, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing by the Customer and the Supplier.
13.7 Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by and construed in accordance with the law of Australia.
The parties irrevocably agree, for the sole benefit of the Supplier that, subject as provided below, the courts of Australia shall have exclusive jurisdiction over any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
Nothing in this clause shall limit the right of the Supplier to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings by the Supplier in any one or more jurisdictions preclude the taking of proceedings by the Supplier in any other jurisdictions, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.