TERMS AND CONDITIONS

These terms and conditions (“Terms”), together with your Bloom Digital Pty Ltd Agreement constitute a legally binding agreement between you (the Client) and Bloom Digital Pty Ltd Digital Pty Ltd (ACN 622 220 919 ) of Suite 2, 459 Stirling Hwy, Cottesloe WA 6011 (“Bloom Digital Pty Ltd”), for the provision website optimisation services, website production and online advertising services and/or other services set out in your Bloom Digital Pty Ltd Agreement effective from the date the last party signs the Bloom Digital Pty Ltd Agreement OR starts using our services based on email correspondence agreement.

Definitions

The following definitions apply to this agreement (unless the context otherwise requires):

‘Agreement’ means these Terms, the Bloom Digital Pty Ltd Agreement and any documents, schedules or annexures referenced or incorporated into this agreement as amended from time to time;

‘Australian Consumer Law’ means the consumer protections set out in Attachment A of the Competition and Consumer Act 2010 (Cth) as amended from time to time;

‘Background IPR’ means a party’s IPR that existed prior to, or created independently of, this Agreement.

‘Bloom Digital Pty Ltd Agreement’ means the document titled the “Bloom Digital Pty Ltd Agreement” incorporating these Terms, that sets out the Services, Fees and Special Conditions and/or other details of the Client’s engagement with Bloom Digital Pty Ltd, as agreed in writing by the Client and approved by Bloom Digital Pty Ltd.

‘Cancellation Fee’ means the cancellation fee specified in the Fee Schedule;

‘Client Content’ means all text, data, graphics files, videos and sound files, and other materials contained in the website or as otherwise owned or created by the Client in whatever form that information may exist and whether entered into, stored in, generated by or processed through software or equipment by or on behalf of the Client.

‘Commencement Date’ means the date the Services are to commence as specified in the Bloom Digital Pty Ltd Agreement

‘Completion Date’ means the date the Services will cease as specified in the Bloom Digital Pty Ltd Agreement where specified;

‘Confidential Information’ means and includes any information that by its nature is confidential, is designated by a party as confidential, or the recipient knows or ought to know is confidential but does not include information which:

(a) is or becomes public knowledge other than by breach of this Agreement;

(b) is required to be disclosed by law;

(c) was known by the recipient as at the date of the Agreement; or

(d) has been independently developed or acquired by the recipient without reference to the disclosing party’s Confidential Information

where the burden of establishing any of the exceptions referred to in (a) to (d) will be upon the recipient;

‘Invoice Due Date’ means the date that the Clients account will be due for the payment of the Fee as agreed;

‘Failed Payment Fee’ means the reversal fee specified in the Fee Schedule;

‘Management Fee’ means the money payable to Bloom Digital Pty Ltd for the Services and any incidental costs as set out in Bloom Digital Pty Ltd Agreement.

‘Intellectual Property Rights’ or ‘IPR’ means all statutory and other proprietary rights in respect of copyright and neighbouring rights (including but not limited to rights in relation to software), all rights in relation to inventions (including registered and not yet registered patent rights), registered and unregistered trademarks, designs, the right to have Confidential Information (including trade secrets and know-how) kept confidential, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields;

‘Material’ means information, documents, equipment, software, goods, computer files, designs, transferable knowhow and data, stored by any means, whether or not in material form, and includes any Intellectual Property Rights in such Material..

‘Minimum Term’ means the term of specified months, continuous rollover of management services on continuous Agreements, or such other term as agreed with the Client and specified in the Bloom Digital Pty Ltd Agreement;

‘Services’ means the services described in Schedule 1;

‘Services Material’ means any Material that is created during the performance of the Services but does not include the Client Content;

‘Special Conditions’ means the special conditions set out in the Bloom Digital Pty Ltd Agreement (if any);

‘Transfer Fee’ means the transfer fee set out in the Fee Schedule.

‘Uptime SLA’ means the uptime service level agreement for websites which Bloom Digital Pty Ltd hosts.

1. Term and extension

1.1 This Agreement will commence on the Commencement Date and continue until the Completion date (the ‘Term”) unless terminated earlier in accordance with clause 24.

1.2 The parties agree that the Agreement will run for the Minimum Term in order to maximise the results and benefits of the Services. Should the Client wish to terminate the Services during the Minimum Term, it can do so in accordance with clause 24.1 noting however that Bloom Digital Pty Ltd reserves the right to charge a Cancellation Fee (or part thereof) in its absolute discretion.

1.3 The parties may choose to extend the Term for a further 12 months or as agreed by the Parties in writing (including moving to a monthly agreement).

 

2. Provision of the Services

2.1 During the Term Bloom Digital Pty Ltd will:

(a) provide the Services to the Client with all due care and skill and in a professional manner consistent with generally-accepted industry standards;

(b) assist the Client in the establishment of a digital strategy in order to maximise the effectiveness of the Services;

(c) keep the Clients nominated contact(s) informed of the progress of the Services;

(d) inform the Client of any issues, which Bloom Digital Pty Ltd reasonably believes may impact on the provision of the Services; and

(e) provide the Client with detailed accounts of Services rendered.

3. Client Obligations

3.1 The Client warrants that:

(a) it owns the rights or has the right to use the Client Content;

(b) it owns the rights or has the rights to use any software, hardware, systems, IP addresses, domain names and other items in the Clients’ ICT systems and infrastructure (“Infrastructure”);

(c) its Infrastructure is in good working order and that it has sole responsibility for the availability and integrity of the Infrastructure;

(d) has put in place sufficient internal controls to ensure the accuracy and integrity of the Client Content;

(e) it will check the integrity of the Client Content on a regular basis; and

(f) it will use its best endeavours to comply with its obligations under this Agreement.

3.2 For the avoidance of doubt, Bloom Digital Pty Ltd does not take any responsibility for the Client Content and it is the Clients sole responsibility to ensure the integrity of the Client Content.

3.3 During the term of this Agreement, the Client must:

(a) Provide all necessary information to Bloom Digital Pty Ltd upon request;

(b) Provide access to locations, systems and Infrastructure including relevant passwords and/or data required by Bloom Digital Pty Ltd in order to perform the Services;

(c) regularly backup its data, Client Content and/or website and use appropriate and up-to-date malicious code and virus detection software for preventing and detecting any harmful code, and take all reasonable precautions to safeguard its business against loss or disruption.

(d) cooperate with Bloom Digital Pty Ltd by providing access to its premises and facilities as reasonably necessary to enable Bloom Digital Pty Ltd to provide the Services;

(e) provide other such access, documents, information or data as Bloom Digital Pty Ltd reasonably requires in order to perform the Services; and.

(f) ·comply with in the terms and conditions of this agreement, including any Special Conditions set out in Schedule 1.

3.4 The Client agrees to comply with these Terms at all times and not engage in any conduct that in the reasonable opinion of Bloom Digital Pty Ltd obstructs the nature and goodwill of the Services.

3.5 The Client agrees to use the Services only for lawful purposes and is prohibited from posting on or transmitting through the Services any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, racially, ethnically or otherwise objectionable material of any kind, including, but not limited to, any material which encourages conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any applicable local, state or national law.

3.6 During the Term of this Agreement, Bloom Digital Pty Ltd may elect to electronically monitor the Services for adherence to these terms and may disclose to the extent permitted by law (and subject to our obligations of confidentiality) any content, records or electronic communication of any kind:

(a) As required by law;

(b) if such disclosure is necessary to perform the Services, or

(c) to protect the rights or property of Bloom Digital Pty Ltd.

3.7 Bloom Digital Pty Ltd reserves the right to remove any Client Content or other content that it deems to offensive or as otherwise described in clause 3.5. Where a series of such breaches occurs by the Client. after receiving notice to desist from Bloom Digital Pty Ltd, Bloom Digital Pty Ltd will terminate your Agreement with immediate effect in accordance with clause 24.2 (a).

4. Fee and Payment

4.1 The Fees for the Services are set out in The Agreement.

4.2 Unless otherwise indicated in The Agreement, the Management Fee does not include goods and services tax (‘GST’). In addition to and at the same time as payment of the Fee, the Client must pay to Bloom Digital Pty Ltd any GST relating to the Services.

4.3 Bloom Digital Pty Ltd will provide the Client with invoices for agreed services, due within 7 days of the invoice date.

4.4 The Client hereby agrees to pay management fees to Bloom Digital Pty Ltd within seven days of the invoice date. 

4.4 Bloom Digital Pty Ltd will provide the Client with overdue account balances owing within 8 days of the invoice date.

4.5 Any disbursements incurred as a result of providing the services will be reimbursed in full to Bloom Digital Pty Ltd within 7 days upon submission of receipts to the Client.

4.6 If there is a change in the scope, timing or order of the services included in the Agreement, then Bloom Digital Pty Ltd will be entitled to additional payment of any amount which is reasonable in the circumstances.

5. Failed or overdue payments

5.1 Where Bloom Digital Pty Ltd has enabled Direct Debit payments and attempted to debit the due funds on the Debit Date and the payment has been rejected due to insufficient funds (or some other reason), Bloom Digital Pty Ltd will contact the Client to arrange another date to debit the account. Where the second attempt to debit the account fails, Bloom Digital Pty Ltd reserves the right to charge a Failed Payment Fee. The outstanding payment immediately becomes a debt due and payable by the Client to Bloom Digital Pty Ltd.

5.2 Where 2 or more attempts have been made to debit the account but payment fails, Bloom Digital Pty Ltd reserves the right to suspend all services until the relevant payment(s) have been made.

5.3 The Client agrees to pay any and all costs associated with recovery of debt under this clause including (but not limited to) debt collection, outsourcing and legal costs should Bloom Digital Pty Ltd take legal action through courts of appropriate jurisdiction.

6. Paid Advertising Management

6.1 Bloom Digital Pty Ltd will set up paid advertising campaigns and deliver paid traffic to the Clients website via the Clients Credit Card. This can be from a variety of networks including Google, Facebook, LinkedIn and Bing. If paid traffic cannot be delivered to the website in question due to the editorial policies of the search engines regarding the acceptance of advertiser web properties, then the Client will be notified of the situation in writing. Bloom Digital Pty Ltd is not to be held liable in this situation. When subscribing to remarketing services through Bloom Digital Pty Ltd, it is the responsibility of the Advertiser to ensure that relevant Privacy Laws and Policies (Google, Facebook, Instagram, Bing and LinkedIn) are in place regarding direct marketing.

6.2 Costs associated with media and clicks generated from enabling this service will be charged directly by each respective platform. The Client authorises Bloom Digital Pty Ltd to provide your credit card details to the advertising platform for this purpose. These fees will appear as separate charges on the Clients credit card statement.

6.3 The Client agrees that Bloom Digital Pty Ltd is not responsible or liable for any incorrect payments charged by third party advertising platforms. The Client agrees to communicate directly with the advertising platform should any incorrect charges be made on your nominated account by a third party advertising platform. Bloom Digital Pty Ltd agrees to provide reasonable assistance to facilitate communication between the Client and Google should this situation arise.

6.4 All paid platform accounts initially set up by Bloom Digital Pty Ltd are the property of Bloom Digital Pty Ltd. Upon termination or expiration of the Agreement, the Client may apply to Bloom Digital Pty Ltd to transfer ownership of the account which will be granted if the following conditions are met:

(a) The term of the agreement is realised; and

(b) Management fees according to the Agreement are not in arrears.

6.5 The Client must comply with guidelines for the respective paid advertising platforms.

6.6 A Paid Advertising campaign which is still in its Minimum Term and has had a minimum of 3 payments processed, can be paused for a 1 regular payment, per 3 regular payment period. Where the campaign is suspended for a longer period of time, then Bloom Digital Pty Ltd may choose to terminate the Agreement and charge the Client a Cancellation Fee in accordance with clause 1.3.

6.7 If Bloom Digital Pty Ltd elects to use a paid platform account owned by the Client, changes to the account should only be made by Bloom Digital Pty Ltd staff. The Client can request changes to the account via the nominated Bloom Digital Pty Ltd account manager.

6.8 Please note that Bloom Digital Pty Ltd is not directly affiliated with Google™. All Google™ related services, claims and guarantees are performed and underwritten by Bloom Digital Pty Ltd.

7. Upload of Content to Customer Websites

7.1 Bloom Digital Pty Ltd will upload optimised content and tags to the Client’s website where a web page is written in a language that our technicians are trained in. If a web page has been designed using languages that we are not skilled in, uploading of content will be the responsibility of the Client and/or their webmaster.

7.2 During the provision of the Services, the Client may provide Bloom Digital Pty Ltd with access to make changes to their website. However, the Client agrees that Bloom Digital Pty Ltd is not liable for any errors which may occur in these updates. Although full care is taken when making such website changes, the Client is expected to regularly back up its data in accordance with clause 3.3. This excludes websites which have been developed by and still hosted with Bloom Digital Pty Ltd.

8. Website Design

8.1 Website design services are provided as per your Agreement with Bloom Digital Pty Ltd. An approximate timing schedule is provided at the time of your Agreement. Failure to provide content or other items within the specified time will delay the setup of the website.

8.2 Website design costs may be subsidised by Bloom Digital Pty Ltd and set out in Schedule 1. If the Client discontinues the development of the website at any stage prior to completion, the Client is liable to pay this subsidised amount. Further, if the Client discontinues the development of the website at any stage prior to completion, the Client is responsible for any fees associated with the completion of the website as outlined in their Website Design Agreement.

8.3 After the launch of a website, the Client is responsible for backing up their website on a regular basis, unless the website is hosted by Bloom Digital Pty Ltd. In the event that the Clients website goes down and it is hosted on a website server other than the Bloom Digital Pty Ltd server, we are not responsible for bringing the website back online.

9. Website Hosting Services

9.1 Where Bloom Digital Pty Ltd will host a Clients existing website, the Client must pay a Transfer Fee at the outset of the web hosting service.

9.2 Bloom Digital Pty Ltd warrants that the Clients uptime availability will be at least 99.9% except where the failure results from:

(a) A failure or malfunction in relation to any device or equipment, any software or power supply outside our control, unless caused by our wrongful act or omission;

(b) The Client’s act or omission (or a person under the Client’s direction or control);

(c) A failure or malfunction of any software forming part of the Services which has not been subjected to a testing regime due to its time critical nature including updates, patches, definitions etc.;

(d) during scheduled maintenance windows and any emergency maintenance and upgrade work;

(e) a requirement, direction or any other order issued by a court, government authority, administrative or judicial body;

(f) unauthorised or illegal access by any party to any party of the computer systems used to provide the Services including hacking, cracking, virus dissemination and denial of service attacks;

(g) any false breaches reported as a result of outages or errors of any Bloom Digital Pty Ltd measurement system;

(h) DNS propagation;

9.3 If in any calendar month, should Bloom Digital Pty Ltd fail to meet the Uptime SLA, Bloom Digital Pty Ltd will refund to the Client, as its sole right or remedy, a 20% percentage credit of the fees for the relevant Service in that month (“Service Credit”). Service Credits are calculated against that month’s web hosting fees and charges only. The Client must request a Service Credit in writing via our email address [email protected] Digital Pty Ltd.com.au. All requests must be made within 30 days of the Uptime SLA breach occurring, and the Client must provide Bloom Digital Pty Ltd with details of the breach claimed for verification purposes. If the breach is confirmed by Bloom Digital Pty Ltd (based on Bloom Digital Pty Ltd’s records obtained from its monitoring services) to have occurred, then Bloom Digital Pty Ltd will, within 60 days of your request being received, apply the relevant Service Credit to the Client’s nominated account.

9.4 The Client is only entitled to make 1 claim for a Service Credit per month.

9.5 Where the Client is in breach of its obligations under this Agreement, including its obligation to pay Fees, then any Service Credit will be set off and deducted from the amount owed by the Client to Bloom Digital Pty Ltd. Nothing in this clause prevents Bloom Digital Pty Ltd from exercising its full rights to recover monies from the Client owed to Bloom Digital Pty Ltd under this Agreement.

9.6 Bloom Digital Pty Ltd takes no responsibility for a websites functionality or performance that has been transferred into its hosting environment pursuant to this clause. If Bloom Digital Pty Ltd identifies any issues with the website which may degrade the server and/or affect the stability of the Clients website, Bloom Digital Pty Ltd will notify the Client of same and such issues must be rectified at the Clients expense in order to continue the hosting services.

10. Email setup

10.1 Bloom Digital Pty Ltd will assist the Client in the setup of email addresses via a preferred services provider. Instructions will be provided on the setup of the email access on your desktop and mobile devices.

10.2 Any further support regarding the setup or ongoing usage of your email will be provided via the preferred services provider.

11. Search Engine Optimisation (SEO)

11.1 Bloom Digital Pty Ltd will undertake the optimisation of the Clients website as per best practise techniques used in the industry.

11.2 Although Bloom Digital Pty Ltd are the specialists in the industry, the Client agrees and understands that SEO does not provide any guaranteed results and that results can vary based on the Clients website history, industry and many more factors. The Client agrees to release Bloom Digital Pty Ltd and any employee, owner, or director of Bloom Digital Pty Ltd from being liable for any damages, cost, or loss of business due to any incidents and/or issues relating to any search engine’s actions.

11.3 Any alterations of SEO keywords by the Client after the initial selection of the keywords will incur additional fees.

11.4 One face to face meeting is included in SEO services per year. Organic Search Marketing services include three face to face meetings per year. All meetings are to be carried out in the Bloom Digital Pty Ltd offices.

11.5 SEO services do not include the consultation required in the launching of a new website, on the domain being worked on. An additional fee will be payable for this service, which will be quoted prior to commencement of this consultation. Organic Search Engine Optimisation services are exempt of this fee.

12. Website Content Maintenance

12.1 Ad-hoc website maintenance including content updates is charged at the hourly rates set out in Schedule 1 with a one (1) hour minimum and has a ten (10) business day turnaround time. Website maintenance packages will have content changes administered five (5) business days after requested.

13. Linked Websites

13.1 Some of the Services may contain links to other websites (“linked websites”) which are not owned or operated by Bloom Digital Pty Ltd. Those links are provided for convenience only and may not remain current or be maintained. Bloom Digital Pty Ltd is not responsible for the content or the terms and conditions and privacy practices associated with linked websites.

13.2 Bloom Digital Pty Ltd’s links with linked websites should not be construed as an endorsement, approval or recommendation by Bloom Digital Pty Ltd of the owners or operators of those linked websites, or of any information, graphics, materials, products or services referred to or contained on those linked websites, unless written and authorised endorsements have been made by Bloom Digital Pty Ltd in relation to those specific links, products and/or services.

14. Service Inclusions

14.1 During the Term Bloom Digital Pty Ltd will:

(a) supply telephone or other electronic support to the Client between the hours of 8:30am – 5:30pm Monday to Friday (“Business Hours”) in order to support Clients enjoyment of the Services;

(b) provide the services set out in the Bloom Digital Pty Ltd Agreement; and

(c) provide any additional services which have been agreed to in writing between Bloom Digital Pty Ltd and the Client, the provision of any additional services are subject to the terms of the Agreement and may incur additional fees.

15. Service Exclusions

15.1 Unless otherwise agreed in writing, Bloom Digital Pty Ltd has no liability for, and is not required to provide Services under this Agreement if it relates to:

(a) rectification of lost or corrupted data arising for any reason other than Bloom Digital Pty Ltd’s own negligence;

(b) support rendered more difficult because of any changes, alterations, additions, modifications or variations to the Services or the use of the system or operating environment;

(c) attendance to faults caused by using the Services outside design or other specifications or outside the provisions laid down in any documentation or manual supplied with the Services, or caused by operator error or omission;

(d) restoration of data files following failure to backup in accordance with Bloom Digital Pty Ltd’s recommended procedures;

(e) diagnosis and/or rectification of problems not associated with the Services;

(f) damage due to external causes outside Bloom Digital Pty Ltd’s control including accident, disaster, electrical fault, power surges, lightning, internet connection fault, vandalism or burglary;

(g) the Client not following Bloom Digital Pty Ltd or the a third party (such as Google) written instructions for the Services;

(h) the Client’s or its third party’s abnormal use of the Services and/or any repair or damaged caused by such misuse;

(i) any other Exclusions listed in the Bloom Digital Pty Ltd Agreement.

15.2 Bloom Digital Pty Ltd may choose to provide the above services at an additional cost to the Client (which will be invoiced separately).

16. Confidentiality

16.1 Each party must at all times:

(a) maintain the secrecy and confidentiality of any Confidential Information of the other party;

(b) not divulge or disclose to any other person, firm, corporation or entity any Confidential Information of the other party;

(c) refrain from copying, transmitting, retaining or removing any Confidential Information of the other party, or attempting to do the same; and

(d) use its best endeavours to prevent the disclosure of any Confidential Information of the other party by or to third parties.

16.2 For the avoidance of doubt all methodologies, documentation and procedures used by Bloom Digital Pty Ltd for the provision of the Services are classified as Bloom Digital Pty Ltd’s Confidential Information and may only be disclosed to staff of the Client on a need-to-know basis. Disclosure to third parties of this Confidential Information is strictly prohibited unless Bloom Digital Pty Ltd provides its express written consent (which may be withheld in its absolute discretion).

17. Privacy

17.1 The Client agrees to comply with the Privacy Act 1988 in its dealings with Bloom Digital Pty Ltd. In particular, the Client warrants that it has made all necessary disclosures and obtained all consents required under the Act in respect of personal information given to or accessed by Bloom Digital Pty Ltd in connection with this Agreement. The Client indemnifies and keeps indemnified Bloom Digital Pty Ltd from and against all costs, losses, damages, claims and expenses arising from the Client’s breach of this warranty.

17.2 By entering into this Agreement, the Client confirms that it has read the Bloom Digital Pty Ltd Privacy Policy which can be found at www.Bloom Digital Pty Ltd.com.au/privacy-policy/. The Client may request a hard copy from Bloom Digital Pty Ltd by emailing [email protected] Digital Pty Ltd.com.au.

18. Partner Referral Agreements

18.1 Where the Client has been introduced to Bloom Digital Pty Ltd via a third party referrer, the Client acknowledges and agrees that some information may be shared with these partners including email, name and products purchased for reporting purposes.

19. Ownership of Data and Services Material

19.1 No Background IPR is transferred by virtue of this Agreement. Each party hereby grants to the other a royalty-free, non-exclusive, non-transferable license to use its Background IPR for the purposes of this Agreement. For the avoidance of doubt, the Client owns all IPR in the Client Content and grants Bloom Digital Pty Ltd a royalty-free right to use the Client Content for the provision of the Services and any other additional services that may arise during the Term of this Agreement.

19.2 All IPR in the Services Material is owned by Bloom Digital Pty Ltd upon creation. Subject to the payment of the Fee, Bloom Digital Pty Ltd hereby grants the Client a royalty-free, non-exclusive, non-transferable license to use, modify and adapt the Services Material for the purposes of this Agreement and for its internal business purposes.

19.3 The Client agrees to not copy, reproduce, export or deal in the Services and/or Services Materials or any part of them in any way except as expressly permitted by this Agreement.

19.4 The Client agrees not to decompile, reverse engineer, disassemble or otherwise reduce any part of the Services and/or Services Material to human-readable form nor permit any third party to do so.

19.5 The Client indemnifies, saves and holds Bloom Digital Pty Ltd harmless from any loss, liability, claim, damage or expense Bloom Digital Pty Ltd suffers or incurs as a result of the Clients failure to comply with its obligations under this clause.

20. Use of Bloom Digital Pty Ltd Trademarks

20.1 Use of Bloom Digital Pty Ltd Trademarks are strictly prohibited unless written consent is obtained from Bloom Digital Pty Ltd.

20.2 Where consent is provided under clause 20.1, the Client must include a statement attributing ownership of the Trademark(s) to Bloom Digital Pty Ltd.

20.3 The Client must not use the Trademarks:

(a) in or as the whole or part of its own trade marks;

(b) in connection with activities, products or services which are not provided by Bloom Digital Pty Ltd;

(c) in a manner which may be confusing, misleading or deceptive;

(d) in a manner that disparages Bloom Digital Pty Ltd or its information, products or services.

20.4 Failure to comply with the obligations contained in this clause may result in infringement action being taken against the Client without further notice.

21. Security

21.1 Notwithstanding the security precautions taken against disclosure of information, there are certain conditions that exist on the Internet generally which are outside Bloom Digital Pty Ltd’s control and could result in a breach of security. The Client hereby expressly waives any claim against Bloom Digital Pty Ltd arising out of the loss of data through corruption, piracy, and breach of security or for any other reason.

22. Warranties and Indemnities

22.1 Nothing in this Agreement is to be read as excluding, restricting or modifying the application of any legislation which by law cannot be excluded, restricted or modified.

22.2 Subject to clause 22.1, any representation, warranty, condition or undertaking in relation to the performance of the Services which (but for this clause) would be implied in this Agreement by law, is excluded.

22.3 Any liability Bloom Digital Pty Ltd may have for any failure to comply with a consumer guarantee imposed by the Australia Consumer Law, or any condition or warranty implied into this Agreement by legislation that cannot be excluded is not excluded but to the extent permitted by law is limited to (at Bloom Digital Pty Ltd’s option) in the case of the Services:

(a) re-supplying the Services;

(b) paying the cost of re-supplying the Services.

22.4 To the extent that Bloom Digital Pty Ltd’s liability cannot be or is not otherwise limited according to this clause 22, under no circumstances will Bloom Digital Pty Ltd’s total aggregate liability under this Agreement, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the actual amounts paid to Bloom Digital Pty Ltd by the Client under this Agreement.

22.5 The Client assumes sole responsibility for the use of the Services in its business operations and hereby indemnifies (and keeps indemnified) Bloom Digital Pty Ltd, its officers, employees, agents, and contractors from and against all liability, losses, actions, claims (including third party claims), demands, proceedings, awards, settlements, compensation, damages, costs and expenses, directly or indirectly arising from, or relating to:

(a) the Client’s use of, or reliance on, any part of the Services and/or Services Material; or

(b) any other person’s use of, or reliance on, any part of the Services and/or Services Material which were provided to that person directly or indirectly by the Client.

(c) a breach or failure to perform by the Client of its obligations under this Agreement; or

(d) any wilful, unlawful or negligent act or omission of the Client.

22.6 The Client’s liability under clause 22.5 will be reduced proportionately to the extent that Bloom Digital Pty Ltd’s negligent act or omission contributed to that loss or liability.

22.7 For the avoidance of doubt and to the fullest extent permitted by law, Bloom Digital Pty Ltd is not liable for:

(a) any special, indirect or consequential loss including (but not limited to) loss of opportunity and/or loss of profits, savings, clients, contracts, revenue, interest or goodwill, suffered or incurred by the Client as a result of its use of the Services and/or Services Material under this Agreement; or

(b) Any loss or damage suffered by the Client or any third party due to the Clients negligent or improper use or of the Services and/or Services Material.

22.8 Bloom Digital Pty Ltd is not responsible for URLs dropped or excluded for any reason.

22.9 Bloom Digital Pty Ltd does not represent, warrant, or guarantee that the Clients URLs will achieve a favourable position, or any position. Bloom Digital Pty Ltd cannot control or guarantee which, if any, search engines will accept the submission of the Clients website. Bloom Digital Pty Ltd will not be responsible for delays or failure of performance resulting from internet service provider delivery problems or failure, or any communication or delivery problems associated with the Clients order details, such as incorrect email address or URL address.

23. Disputes

23.1 The parties must work in good faith to resolve any dispute between them arising from this Agreement.

23.2 Any dispute will initially be referred to the nominated representatives of each party for resolution. If such dispute is not resolved within 7 days, the dispute will be referred to a meeting of the Director/ CEO or authorised delegate or equivalent of each party.

23.3 If the dispute remains unresolved after a period of 60 days after the second meeting referred to in clause 23.2, the parties will agree upon an appropriate mediator. Failing agreement, the President of the Law Society of Western Australia will appoint a mediator. Agreement as to the allocation of costs will be determined through mediation.

23.4 A party may not commence court proceedings until 30 days after referral to a mediator pursuant to clause 23.3 except that nothing in this clause will prevent any party from seeking urgent interlocutory relief through courts of appropriate jurisdiction.

24. Termination

24.1 Each party may terminate this agreement by giving 30 days’ written notice to the other party. If the Agreement is terminated by the Client within the Minimum Term, the Client will be liable to pay the Cancellation Fee in accordance with clause 1.2

24.2 Without limiting any other rights or remedies Bloom Digital Pty Ltd may have against the Client arising out of or in connection with this Agreement, Bloom Digital Pty Ltd may terminate the Agreement with immediate effect if the Client:

(a) Commits a serious breach of this Agreement including (but not limited to) posting offensive material or material promoting or suggestive of illegal or criminal activity;

(b) has had insufficient funds in their nominated bank account on the Debit Date for 2 consecutive months or more, or has not notified Bloom Digital Pty Ltd that it disputes the charges specified under an invoice within 60 days of receipt of that invoice; and

(c) the Client breaches a provision of this Agreement and fails to remedy the breach within 30 days of receiving notice to do so; or

(d) the Client becomes insolvent or enters into liquidation or receivership or makes a composition or arrangement with its creditors generally or takes advantage of any statutory relief for insolvent debtors.

24.3 A termination of this Agreement will not affect the Client’s liability to pay Fees for Services already performed.

24.4 The provisions of clauses 5.3, 16, 17, 19, 20, 21 22, ,27. and this clause 24.4 survives termination or expiration of this Agreement.

25. Independent Contractor

25.1 Bloom Digital Pty Ltd is an independent contractor and not an employee or agent of the Client.

25.2 The manner of performance of the Services will be at all times within the judgement and discretion of Bloom Digital Pty Ltd.

25.3 Neither Bloom Digital Pty Ltd nor any employee, contractor, representative, agent of Bloom Digital Pty Ltd will by virtue of this Agreement be deemed to be an employee of the Client.

25.4 The parties to this Agreement will not be or be deemed to be in any partnership, collaboration or joint venture and neither party will hold itself out as being in any way a partner or joint venturer of the other party and neither party will pledge the credit or warrant the authority of the other party.

26. Notices

FEE SCHEDULE

Fees/ Description Cost excluding GST

Cancellation Fee – the total sum of the Fee payable until the end of the Minimum Term stipulated above. 25% of the Regular Payments fee multiplied by the number of Minimum Payments left in the Minimum Term, up to a maximum of 12 payments. 

Failed Payment Fee $35.00

Note that all pricing is in Australian dollars and is exclusive of GST.

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