By George Design - Terms & Conditions

Benefits,Terms and Conditions

Attachment A: Benefits of the GOcmsTM Website Editing Module

Benefits are:
• Make changes to your website at any time.
• No need to install special software, it all runs online, so your not restricted to just one computer
• No limit on how many pages you can add
• Use it from anywhere you can get onto the web, here in Australia or overseas. (Compatible with Mac and PC)
• Multiple staff members can make changes to the site at the same time
• Simple interface to use. Small text changes can easily be done in under 2 mins.
• Requires minimal training. (Basic computer skills, Word etc are all that’s needed)
• Upload photos easily to your site

Update your website yourself from work or home through the Internet on a daily basis. Make changes to text and photos easily. This is
the core website module which allows you the user to log in with their own unique username and password.
You then are able to click on a page in your website and edit text, formatting, keywords, page titles, descriptions and placement of
pictures. It provides the ability to preview changes before clicking update and committing those changes to the site. It utilises a
WYSIWYG (What You See Is What You Get) editor (similar to Word) and gives the ability to insert links to pages in the site, email
addresses, websites, pictures, pdf files and any other files that can be uploaded onto the site. It includes an area for uploading jpgs,
pdfs, mp3 files and viewing images (jpgs). These pictures or files can then be linked or added directly onto the page through the
administration area. This means content for the website can be controlled wherever a user can get ‘online’ using a standard website
browser e.g. Internet Explorer or Firefox.
This sets up the website as a ‘database’ website, opening up the many benefits associated with this solution. It also has a back up
facility for the database file and images. Includes automatic image resizing module for images uploaded and used on pages (Online
store automatic resizing is available at additional cost). This minimises the need to resize in a program such as photoshop before
uploading. You are also able to add an unlimited amount of additional website pages, with the ‘add page’ button (subject to site
space). You can then organise these pages into folders which helps you keep track of them.

Administrator / User management area

An ‘administrator’ or ‘user’ for the website is someone who is able to add/edit/delete pages etc in the site. The ‘administrator’ is the
only person who can add/edit/delete other ‘users’ or set another ‘user’ as ‘administrator’. Allows the site administrator to set up other
staff for content changes. Also gives ability to set privileges for staff e.g. User 1 ‘Joe’ is able to edit but not delete.
Front end search feature (built in internal search engine)
Help your website viewers find information they want fast using keywords through an internal website search engine.
Clients module
This feature gives you an area to manage your clients with the ability to add/edit/delete your clients through the administration area
and store information in the database for them.
• ‘Sign up for newsletter’ option which captures name and email then sets up the client as a ‘Newsletter Subscriber’. It will then store
their details in the admin area of the site.
• Fields include; name, address, phone, fax, email, activate on or off option, receive SMS option, receive newsletter option.
• Ability to organise clients into different groups, so that you can just choose a group of clients quickly instead of having to select
everyone every time.
Navigation management module
Gain control of your navigation and menu system through this module. You will have the ability to now add any page that is currently in
your website to the left hand menu bar (or drop down menus) of your home page or other pages using this navigation. This advanced
module also gives you the ability to run mulitple navigation systems. e.g. a different navigation attached to each page (displayed on the left). You are also able to add links to other websites, links to pdf or word files or links to a specific email address as well as control the order in which they are displayed. Very handy when you need to add a new page to your site then have a link to it from your navigation. (All in just a few simple clicks through your administration area)
Site map
This feature builds an automatic list of all pages in the website allowing a website user to find their way around the site quickly. It gets
this information out of the active database so will reflect any changes to page titles or addition and deletion of pages.
Page revisions rollback feature
Allows user to ‘roll back’ to a previous version of a page e.g. version 1,2,3 or 4 (by order of date) as well see what version of a page
was published at any time or date in the past. Allows user to save changes to a page without publishing to the web. User can control
how many copies of a page are to be kept (depending on disk space). Also includes ‘Recycle Bin’ feature which stores deleted pages
and images until rubbish is emptied by site administrator user. This allows retrieval of deleted pages.
Gallery module
Ability to load images into a gallery area. These images can then be displayed in a gallery area on the website over multiple pages. It
includes automatic next and back buttons as well as a ‘click for larger image’ feature. Provides automatic thumbnail image generation
and down-sampling from large image.
E-Newsletter module
Increase traffic to your website and awareness of your product to your customers through a link off your home page directly to ‘This
months Newsletter’. Includes the ability to set up a Newsletter as html. Ability to edit/add/delete and nominate current newsletters. The
current newsletter can be displayed on the site.

Other features include:
• Ability to send this newsletter out to your clients with the click of a button and monitor it’s progress through the campaign module.
• Ability to automatically generate a ‘Text only’ version of the newsletter and have the site keep track of a persons preference for Html
or text only. The email process will automatically send either the ‘Text only’ version or the Html version.
• Automated unsubscribe option for clients receiving. The system keeps a log of what time and date the client unsubscribed.
• Ability to personalise by including client specific Usernames, Passwords, First and Last names in each newsletter automatically
• Ability to choose different (pre-designed) templates, for each mail-out and ability to preview these before sending.
(Note: Functionality will depend on your hosting restrictions. Our hosting package is preferred in order to have all areas function).
Campaign tracking module
This module gives you the ability to track the success of a campaign by measuring newsletter bounces, online viewing’s, click throughs, opened, unopened, unsubscribes etc. These are all stored in a pie-chart report which you can view and gather detail of who has done what. It gives you the ability to manage and maintain settings for each mail-out and easily duplicate previous campaigns
settings. Each campaign automatically rates your e-newsletter for likelihood of being classed as Spam with the latest Spam Assassin
software before sending and allows you to modify your newsletter.
Contact form - Anonymous (i.e. email address not visible to online spam scanning software)

This allows the users of the website to enter their details and click submit (max 15 fields). A copy of the information is automatically mailed to the administrator of the website. The user is then directed to a confirmation ‘thank you’ page.
Training session
1 x 1hr training session for you or your staff on site in Southport, Queensland. Additional training is provided upon request at an additional charge.
Back-up management module - Advanced
Allows user to nominate specific back up times such as monthly, weekly, daily. User can nominate an email address which will have a
back up done’ notification sent to. User then logs in and downloads a compressed file to their local computer. User can control which
components of the site need to be backed up such as: images, database content (page content, orders, text and links) or both. Can
also be set up to automatically download via FTP to a clients local server online for additional charge.
Newsroom / Media Release Module - Basic
Allows website administrator to run a News or Media Release area on the site. They have the ability to add/edit/delete a Media
Release, store these in order of date and nominate releases in summary form on the home page. Can be set to automatically list the
most recent releases on home page or an other page or have them chosen manually.
Events Module and Website calendar
This area allows you to create events for a specific date and time. These events are then displayed automatically on a calendar page
on your website. You have the option of setting a status for each event e.g. Active, Postponed, Cancelled, Tickets Unavailable, Inactive. You are able to set multiple categories for events as well as manage multiple venues. This can also be linked to the shopping cart software (Extra charges apply) to allow you to sell a preset number of tickets for events and book registrations.

Articles Manager
Create and organise articles with publish dates and authors. Allow users to add comments to articles in the front end of the website.

Attachment B: Premium Corporate Online store (Shopping Cart)

Store Specific Features:
• Fully featured database Shopping Cart with Add item to cart and check-out facility
• Fully featured web-based browser administration area. Log in with your user-name and password
• Load up to 100,000 products (subject to hosting space)
• Image management area allowing upload/view/edit and delete of items
• Automatic thumbnail image generation and down-sampling from the large image

(you won't have to generate thumbnail icons for each product you add)
• Add/edit/delete multiple folders to store images in
• Area to maintain fields attached to each product, keywords, description, wholesale price, retail price, product code, manufacturing
code, title + up to 5 additional fields
• FAQ's (Customers Frequently Asked Questions) (interactive - each post requires approval by you the administrator) includes on/off
option.
• Customer comments and reviews (interactive - each post requires approval by you the administrator) includes on/off option.
• Star ratings (1-5 displays corresponding stars above product) - includes on/off option.
• Ability to attach a pdf description file
• Ability to attach a product brand logo
• Manage (add/edit/delete) your product categories, and sub categories
• Ability to assign multiple categories for each product to appear under
• Variants feature: Ability to add specific colours or sizes to each product, which are available as options at check out.
• Points reward system allowing purchaser to accumulate points which they can later redeem for 'store cash'.
• Promo Discount code system. Run promotions with codes
• Ability to export product database and then also to import via upload of .csv (comma separated file) into store to populate with data
and or update your products each time you require updates via matching product code.
• Inventory Management: Option to count down from preset inventory quantity, product then displays either 'Sold Out' or 'Out of stock,
place your order now'

• Freight/Delivery module allowing custom delivery options to custom countries (international) or states (domestic) calculated on either
quantity of items, total cost, weight, TBA or flat rate.
• On/Off option to allow products to be available for purchase or just view.
• On/Off option to allow products to be viewed or not visible.
• SEO: The website automatically generates Search Engine Friendly URL'S based from categories and product name (helps products to be found through the web). Page titles auto generated based off url key words. ALT image keyword control.
• Ability to attach multiple images (up to 5) or a gallery for each product
• Create multiple levels of client categories and assign multiple levels of specialist prices upon login e.g. wholesaler 1 pricing, wholesale 2 pricing
• Create multiple tabs of information for your product, e.g Specs, Detailed description.
• Digital delivery purchase and download of file option
• Related items feature
• Order tracking feature. Set status for orders e.g. Completed, Incomplete, Pending, Processed, Dispatched. Keeps notes on orders.
Resend order confirmation emails
• Orders are confirmed via email to client and emailed to website administrator as well as stored in orders module.
• Export orders feature by date range or from last export
• RRP option
• IP address tracking
• Image water marking feature
• Featured items control. Set how many you wish to have viewed.
• Reports module: Track sales by month, Order status
• Print product option and Email to a friend option.
My Account area
Clients at purchase sign up for their own profile with their own user-name and password. They are then able to log in to their 'My
Account' area and can then:
• View recent purchases/history
• View and manage favourite items.
• View and download Downloadable files purchased
• Update their details e.g. delivery addresses (up to 5), favourite items, user-name and password
• View specific pages related to their category (set by web site administrator, yourself)
Payment options
• Standard payment options include Paypal (basic payment to email), Print & Fax, Money order, Client account, Pay-it@post, Payflow
link, St. George Bank, E-path, E-matters, NAB, Direct deposit, Pay upon pick up, Free (no payment required). Note: Custom payment
options can also be set up which may incur additional cost, please enquire.
Note: If you or your choice of payment option requires that you have your own secure certificate this will need to be purchased by
yourself though Geotrust or Verisign

Client website terms and conditions:

Please note any changes to the brief will invalidate these quoted prices. Prices and times estimated are subject to final inspection of code, graphics, files and materials supplied or further instructions supplied and may vary. All author’s corrections or changes to scope after initial concept/site plan or design has been approved and signed off will be charged for at our standard hourly rate.

Any computer files created in the production of this job remain copyright of By George Digital Design ©2009 with the exception of graphical designs which have shared copyright ownership between you the client and By George Digital Design, unless otherwise arranged. You may not redistribute, sell or reverse engineer versions of this software. The software whether on disk or on any other media is licensed, not sold, to you by By George Digital Design. This licence allows you to use one copy of the software on a single domain name at a time on the By George Server Hosting package provided you are paying any hosting or monthly fees due to By George Digital Design. By George Digital Design retains ownership of the Intellectual property for the software itself. You may make a transfer of all of your licence rights to By George Digital Design to another party provided that you do not retain any copies of the software, full or partial and that the party receiving the software reads and agrees to accept the terms of this licence. Your rights under this licence will terminate automatically without notice if you fail  to comply with these terms. Upon termination you shall cease use of the software. Aside from the laws limitations in no event shall By George Digital Design be liable for personal injury, or any incidental, special, indirect or consequential damages whatsoever, including without limitation, damages for loss of profits, loss of data, business interruption or any other commercial damages or losses arising out of or related to your use or inability to use this software however caused, regardless of the theory of liability (contract or otherwise).

You expressly acknowledge and agree that use and performance of the software is at your sole risk. The software is provided ‘AS IS’, with all faults and without warranty of any kind. No written information or advice given by By George Digital Design shall create a warranty.
By George Digital Design does not warrant that the software will be uninterrupted or error-free or that defects in the software will be corrected. Should the software be defective you assume the entire cost of all necessary servicing, repair or correction.
1) By George Digital Design CMS is designed to run optimally on the GO Hosting package. If it is required to be hosted on other 3rd party servers By George  Digital Design cannot warrant all features will operate correctly as this depends on what software and systems are available on this 3rd party hosting package. Please enquire for a detailed description of what is involved. An additional quote will need to be supplied to install the encrypted software on this 3rd party  hosting solution.
2) The completion date for a website is a maximum of 8 weeks from the date of the initial payment being received. If a website project is delayed by you the client by way of you not supplying necessary content or not contacting By George Digital Design with answers to designers or programmers queries or you not supplying necessary user-names, passwords or registry keys or you not signing off designs within a reasonable time frame then the website is deemed to be finished and full payment is required.
3) Payment - (a) Final payment shall become due upon completion of any work (unless it has been paid for in advance) or earlier notification to the customer that the work has been completed. Unless otherwise stated by By George Digital Design, in writing, no discount shall be allowed.
Unless otherwise stated in writing by By George Digital Design, interest at the current Suncorp Bank overdraft rate will be charged on overdue accounts.
(b) In the case of the first transaction between the parties, the value of the order shall be paid on acceptance of the quotation or the lodging of the order (whichever shall be later), unless otherwise stated in writing to By George Digital Design.
(c) The suspension by the customer of any work, for any reason, for a period exceeding thirty (30) days shall entitle By George Digital Design to payment for work already carried out, materials specially ordered for that work and other additional costs, including storage.
(d) In the event that By George Digital Design is required to engage the service of any mercantile agency (Debt collector) to effect collection of any amounts due to By George Digital Design then all collection expenses and associated charges shall be borne by you as the purchaser.
(e) If you the client have any automatic payments and or Direct Debit systems put in place to By George Digital Design/GO Hosting, that are outside of a nominated contract period and you wish to cancel these payment By George Digital Design require notification in writing. Allow up to 30 days for these changes  to take place.
4) While we will endeavour to achieve the best traffic results possible the final results are ultimately under the control of the search engines themselves. Results will vary and may take up to three months to start showing. By George Digital Design does not make any guarantees as to positions, success or traffic gained from the search engines. NOTE: Google fees are additional to this charge. You are able to set a daily budget as to how much you wish to spend. We will advise on a recommended spend to maximise effectiveness.

5) Content Liability Waiver - Your User Submissions
A. As a By George Digital Design client you (“The Client”) may submit video content (“User Videos”) and audio content (“User Audio”) and textual and picture content (“User Content”). User Videos and User Audio and User Content are collectively referred to as “User Submissions.” “Your Website” means the website  By George Digital Design have built or administer or complete work on for you, or any website you have the authority to administer and ask By George Digital Design to administer or complete work on or load the “User Submissions” to.
B. You The Client shall be solely responsible for your own User Submissions and the consequences of posting or publishing them online. In connection with User Submissions, you affirm, represent, and/or warrant that: you own or have the necessary licenses, rights, consents, and permissions to use and authorise By George Digital Design to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by By George Digital Design.
C. For clarity, you The Client retain all of your ownership rights in your User Submissions. However, by submitting User Submissions to By George Digital Design, you hereby grant By George Digital Design/GO hosting, a worldwide, non-exclusive, royalty-free, and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with Your Website in any media formats and through any media channels. You also hereby grant each user of Your Website a non-exclusive license to access your User Submissions through Your Website, and to use and perform such User Submissions as permitted through the functionality of Your Website and under these Terms of Service.
D. In connection with User Submissions, you The Client further agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant By George Digital Design all of the license rights granted herein.
E. By George Digital Design does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and By George Digital Design expressly disclaims any and all liability in connection with User Submissions. By George Digital Design does not permit copyright infringing activities and infringement of intellectual property rights on its Website or on Your Website, and By George Digital Design will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another’s intellectual property rights. By George Digital Design reserves the right to remove Content and User Submissions without prior notice.
F. By George Digital Design may require evidence of your ownership of rights or licences to use and publish your User Content.

Fenton Design Pty Ltd t/a By George Digital Design Hosting Service Schedule

This Service Schedule forms part of the Services Agreement between Fenton Design Pty Ltd t/a By George Digital Design and the Customer and cannot be used as a stand-alone agreement. Any terms defined in the Master Services Agreement have the same meaning in this Service Schedule. Unless expressly stated otherwise, a reference to agreement clause, paragraph and/or part shall be a reference to a clause contained in this Service Schedule.
1. Parties
1.1. This Schedule applies between Fenton Design Pty Ltd t/a By George Digital Design (“Fenton Design Pty Ltd t/a By George Digital Design”, “We ”, Us”, “Our”) and the
Customer identified in a Hosting Services Order Form (“You”, “Your”, “Customer”).
2. Contract Information
2.1. The Customer has:
2.1.1. signed or will sign a Service Order for Hosting Services and a Master Services Agreement, and, in case of the first engagement for Hosting Services, will sign this Service
Schedule or;
2.1.2. placed an Service Order online for Hosting Services and agreed to have read the Master Services Agreement and this Service Schedule and have signed a �»Summary of
Agreement for Supply of Services�¼ form.
2.2. This Schedule shall be incorporated in and form part of each Contract (as defined in the Master Services Agreement and which, for the avoidance of doubt, includes the Master
Services Agreement and the Service Order) between the parties for the supply of Hosting Services and contains the terms and conditions specifically relating to the Hosting Services.
2.3. For the avoidance of doubt, any usage by the Customer and Your End-Users of any Hosting Service constitutes acceptance of the above documentation.
3 Service Description
The following Service description is provided for Fenton Design Pty Ltd t/a By George Digital Design Hosting Service.
3.1. Fenton Design Pty Ltd t/a By George Digital Design Hosting is in a facility designed specifically for business, corporate and wholesale customers to host their websites.
3.2. Fenton Design Pty Ltd t/a By George Digital Design Hosting provides Server space for You to have your Website published online.
Disk Space
3.3 Each website has a set amount of disk space allocated to it. Charges for additional disk space will apply if the Customers website exceeds the amount set in the Service Order
Form. Fenton Design Pty Ltd t/a By George Digital Design reserves the right to disconnect any servers, websites or hosting equipment immediately with or without prior notice if Your website exceeds this limit.
Bandwidth
3.4 Each website has a set amount of bandwidth allocated to it. Charges for additional bandwidth will apply if the Customers website exceeds the amount set in the Service Order
Form. Fenton Design Pty Ltd t/a By George Digital Design reserves the right to disconnect any servers, websites or hosting equipment immediately with or without prior notice if Your website exceeds this limit.
Service Provision
4.2. Fenton Design Pty Ltd t/a By George Digital Design shall:
4.2.1 provide to the Customer the Hosting Services in accordance with the terms and conditions contained in this Schedule and the Contract;
Allocation of Hosting Space
4.3. Fenton Design Pty Ltd t/a By George Digital Design shall allocate the Hosting Space in its sole and absolute discretion and may upon fourteen (14) days notice to the Customer modify, substitute, replace or change the location of the Hosting Space or Fenton Design Pty Ltd t/a By George Digital Design Facility as reasonably necessary. Fenton Design Pty Ltd t/a By George Digital Design shall use reasonable endeavours to minimise any disruption to, or non-availability of the Hosting Services during a modification, substitution or relocation.
Service Levels
4.4. If Service Levels are specified in Annexure 1, Fenton Design Pty Ltd t/a By George Digital Design shall provide the Hosting Services in accordance with such Service Levels.
4.4.1 Fenton Design Pty Ltd t/a By George Digital Design obligations to give or allow such rebates is the full extent of Fenton Design Pty Ltd t/a By George Digital Design liability and the Customer's sole and exclusive remedy in respect of any failure by Fenton Design Pty Ltd t/a By George Digital Design to meet the Service Levels.
Fenton Design Pty Ltd t/a By George Digital Design reservations
4.5. Fenton Design Pty Ltd t/a By George Digital Design reserves to itself the right to:
4.5.1 access and use for its own purposes and for the provision of services to other customers other space within the Fenton Design Pty Ltd t/a By George Digital Design servers that is not allocated as part of the Hosting Services to the Customer;
4.5.2 grant additional licences to other customers for the use of space in the Fenton Design Pty Ltd t/a By George Digital Design servers that is not allocated to the Customer;
4.5.3 exercise or grant other rights not inconsistent with the rights granted hereunder;
4.5.4 enter and pass through the Hosting Space with or without equipment provided that such access does not unreasonably interfere with the use of the Hosting space by the
Customer.
4.5.5 Inspect the Customers website code at any time if, in Fenton Design Pty Ltd t/a By George Digital Design opinion, the Customer Equipment is causing, or is likely to cause, service degradation to Fenton Design Pty Ltd t/a By George Digital Design or any third party due to but not limited to, overheating, excessive power load, non-standard coding practices, viruses, Fenton Design Pty Ltd t/a By George Digital Design reserves the right to refuse installation of such software or code or turn off the Customers website or server. Where practicable, Fenton Design Pty Ltd t/a By George Digital Design will endeavour to give the Customer 24 hours notice to remedy the situation, prior to turning off the Customers website or server.
4.5.6 access the Customers website at any time to assess whether You are complying with Your obligations under this Agreement, to rectify any breach by You of this Agreement or
to exercise a right under this Agreement. You must not hinder or interfere with Fenton Design Pty Ltd t/a By George Digital Design access to the Customer website. You must withhold passwords needed for this purpose.
5 Customer Access
5.1. The Customer shall have reasonable access to the Hosting Space for the purpose of utilising the Customer rights set out in clause 4.1, on the following basis:
5.2. You agree to comply with Fenton Design Pty Ltd t/a By George Digital Design security regulations and other operating policies and procedures as advised by Fenton Design Pty Ltd t/a By George Digital Design to You from time to time.
5.3. You and Your agents, employees and contractors must not interfere with or modify any software on the Server other than the Customers Server or Hosting.
5.4. You must not upload or place any piece of software for the purposes of Spamming or creating Viruses.
5.5. You will be liable for any damage to other websites or servers by Your agents, employees or contractors or Your Website.
5.6. You must not upload or place any material that is deemed to be Pornography, Race Hate related or related to Terrorism onto your Hosting Space.
5.7. It is the Customers responsibility to inform Fenton Design Pty Ltd t/a By George Digital Design in writing of any changes to the Customers authorised representatives to the Hosting Space or Website.
5.8. Customer agrees to payment of any relevant Charges associated with this paragraph 5.
Access
5.9. Subject to paragraph 5.9.1 You will use Your best endeavours to give Fenton Design Pty Ltd t/a By George Digital Design such notice as Fenton Design Pty Ltd t/a By George Digital Design requires of a request to enter the Hosting Space.
5.9.1 In the case of failure of any Customer Software requiring urgent repairs necessitating unscheduled access to the Hosting Space, You must notify Fenton Design Pty Ltd t/a By George Digital Design as soon as practicable and make arrangements for access to the Hosting Space.
6 Customer Obligations
6.1. The Customer shall:
6.1.3 ensure that the Hosting Space is kept free from Viruses or Spamming software;
6.1.4 ensure that email accounts are checked regularly and cleaned out so that they do not exceed your Disk Space limit;
6.1.6 satisfy itself as to the adequacy of the Fenton Design Pty Ltd t/a By George Digital Design Hosting Space, the Hosting Space, power supply and up-time;
6.1.7 upon request by Fenton Design Pty Ltd t/a By George Digital Design remove from the Hosting Space Software that:
(a). is not Software approved by Fenton Design Pty Ltd t/a By George Digital Design;
(b). interferes with the equipment of Fenton Design Pty Ltd t/a By George Digital Design or third parties in the Fenton Design Pty Ltd t/a By George Digital Design Server (c). interferes with the operation of the Fenton Design Pty Ltd t/a By George Digital Design Server;
or
(d). emits unacceptable levels of Spam or Emails.
6.1.8 Be responsible for maintaining back up copies of any software, computer code or emails that are loaded onto the Hosting Space regardless of who has uploaded it to the
Hosting Space or created it.
6.1.10 Be held responsible for and agree to pay all charges resulting from:
(a). any damage to the Fenton Design Pty Ltd t/a By George Digital Design Server caused by the Customer or the Customer�¼s website and;
6.1.11 You must pay all Charges resulting from use of the Services, whether authorised by You or not.
6.1.12 grant, as security for any unpaid Charge owed to Fenton Design Pty Ltd t/a By George Digital Design under this or any other Agreement with Fenton Design Pty Ltd t/a By George Digital Design, a lien over the Customer Software. Fenton Design Pty Ltd t/a By George Digital Design may sell all or part of the Customer Software on which it has a lien in the event that You fail to pay any Charges by the due date for payment and Fenton Design Pty Ltd t/a By George Digital Design gives You written notice at least seven (7) days prior to the date of sale, stating and demanding that the outstanding Charges be paid.
6.1.13 bear the entire risk of loss or damage to the Website Software after its uploading to the Hosting Space. You shall, at Your own expense, obtain and maintain property and
casualty insurance for the Website Software against all risks of loss or damage as well as all risks of loss and damage to third party equipment. The amount of such insurance shall
not be less than the aggregate of the replacement cost of all Website Software.
7 Customer Restrictions
7.1. The Customer shall not:
7.1.1 Upload anything onto the Hosting Space or onto the Fenton Design Pty Ltd t/a By George Digital Design Server that, in Fenton Design Pty Ltd t/a By George Digital Design�¼s opinion, is noxious, offensive or a nuisance;
7.1.3 use the Hosting Space for any purpose other than operating the Website;
7.1.4 damage the Hosting Space or the Fenton Design Pty Ltd t/a By George Digital Design Server or any equipment located therein;
7.1.6 permit any third party (other than its authorised employees, agents or contractors who have Fenton Design Pty Ltd t/a By George Digital Design approval) to access the Hosting Space; or
7.1.7 do any act or thing that causes Fenton Design Pty Ltd t/a By George Digital Design to be in breach of any regulatory approval, consent, licence or regulation held or required to be held by Fenton Design Pty Ltd t/a By George Digital Design.
8 Term
8.1. The Contract shall commence on the date of signing. The Hosting Services shall commence on the Service Commencement Date specified in the Service Order and shall,
unless terminated earlier in accordance with the terms of this Contract, continue in full force and effect for the Initial Term set out in the Service Order.
9 Fees
9.1. The Customer shall pay to Fenton Design Pty Ltd t/a By George Digital Design the fees set out in the Hosting Service Order and any additional fees for any other Services performed from time-to-time and payable on the Terms and Conditions set out in the Service Order and/or Master Services Agreement.
10 Superior rights Subordination
10.1. The Contract is made subject and subordinate to the terms and conditions of any underlying ground or facilities lease or licence or other superior rights by which Fenton Design Pty Ltd t/a By George Digital Design has acquired an interest in the Fenton Design Pty Ltd t/a By George Digital Design Server.
Rights conditional
10.2. The rights of the Customer are conditional upon the owner of the relevant Fenton Design Pty Ltd t/a By George Digital Design Server giving and continuing its consent, if required, to the grant and continuation of the Customer rights under this Contract.
No breach or invalidation
10.3. The Customer shall not do or fail to do anything that may invalidate, or breach the terms of, any agreement between Fenton Design Pty Ltd t/a By George Digital Design and the owner, lessor or licensor of any Fenton Design Pty Ltd t/a By George Digital Design Facilities, which could affect Fenton Design Pty Ltd t/a By George Digital Design right to use or occupy such Fenton Design Pty Ltd t/a By George Digital Design Server.
No tenancy
10.4. Nothing in this Schedule creates any tenancy between Fenton Design Pty Ltd t/a By George Digital Design and the Customer, nor does it confer upon the Customer any right or interest in the Server by way of occupation rights, licence, easement, rights of way or otherwise except expressly provided in this Schedule.
11 Sale and transfer of facility
11.1. Nothing in this Schedule prohibits Fenton Design Pty Ltd t/a By George Digital Design from selling or otherwise transferring its interest in the Fenton Design Pty Ltd t/a By George Digital Design Facility.
11.2. This Schedule shall automatically terminate when Fenton Design Pty Ltd t/a By George Digital Design ceases to have a right to use the Fenton Design Pty Ltd t/a By George Digital Design Facility.
11.3. Fenton Design Pty Ltd t/a By George Digital Design shall use reasonable endeavours to assist the Customer to novate this Contract to, or enter into a new agreement with, any new owner, lessee or licensee of the Fenton Design Pty Ltd t/a By George Digital Design Facility.
Indemnity
11.4. Without limiting any express rights of the parties under the Master Services Agreement, You indemnify, and will keep fully indemnified, Fenton Design Pty Ltd t/a By George Digital Design, and each of Our officers, agents, employees and contractors, from and against any losses, damages, costs or expenses (including legal costs assessed on a solicitor client basis) which Fenton Design Pty Ltd t/a By George Digital Design or any of Our officers, agents, employees or contractors, may suffer or incur arising out of or in connection with an action or claim brought by a third party against Fenton Design Pty Ltd t/a By George Digital Design or any of Our officers, agents, employees or contractors, which is a result of:
(a) the presence of the Customer Software on the Server or Hosting Space;
(b) any Downtime caused by negligence or the installation, operation, maintenance or removal of computer hardware equipment or Software or Computer Code including GOcms
uploaded by Fenton Design Pty Ltd t/a By George Digital Design or You or Your officers, agents, employees or contractors on or from the Server or Hosting Space;
(c) any defects or faults in the Server, Hosting space, Design work or Computer Code authored by Fenton Design Pty Ltd t/a By George Digital Design or it's programmers;
(d) the negligence or intentional acts or omissions of any of You or Your officers, agents, employees or contractors.
12 Definitions and interpretation
Definitions
12.1. Terms shall have the meaning given to them in the Master Services Agreement between Fenton Design Pty Ltd t/a By George Digital Design and the Customer.
12.2. In addition, in this Schedule the following definitions apply:
ACMA means the Australian Communications and Media Authority or any successor.
Carrier has the meaning given to that term in the Telecommunications Act, 1997 (Cth).
Hosting Services means the Hosting services described in the Service Order Form.
Hosting Space means the space described as such in a Service order for Hosting Services which is supplied to the customer and the disk space allocated on the Server.
Website means any, software, computer code, provided by, or controlled by, You and used in connection with the Services.
Server means the computer server on which the Website is to be installed, details of which are set out in the Service Order Form.
GOcms means the Fenton Design Pty Ltd t/a By George Digital Design Content Management System
Computer Code means Software authored either by You or Fenton Design Pty Ltd t/a By George Digital Design or it's programmers.
Loss means costs, loss, damage, liability or expenses (including all legal costs on a full indemnity basis, fees and expenses).
Services means the service(s) described in the Service Order Form, as varied from time to time in accordance with this Service Schedule.
Service Commencement Date means the date the Service is provisioned and ready for use by the Customer.
Software means any computer code, html, php, mysql, scripts or files that run on the Server or Hosting Space
Disk Space means hard drive space.

Fenton Design Pty Ltd t/a By George Digital Design Operating Terms and Conditions Master Service Agreement

All design copyright remains the property of By George Digital Design until all monies are paid in full.

The terms and conditions of this Master Service Agreement apply between:
Fenton Design Pty Ltd t/a By George Digital Design (ABN 88 076 074 167) of: 3 Susanne Street, Southport QLD 4215
(Fenton Design Pty Ltd t/a By George Digital Design, our, us)
And:
The Customer identified in the (Fenton Design Pty Ltd t/a By George Digital Design website quotation order form (“You”, “Your”, “Customer”).
It is agreed as follows:
1. Contract Information
1.1. (Fenton Design Pty Ltd t/a By George Digital Design will supply, and You will acquire, the Services on the terms and conditions of the following documents each of which shall form a Contract between the parties:
1.1.1. This Master Services Agreement (Agreement);
1.1.2. the Service Schedule(s);
1.1.3. any Order(s) for Service (Service Order); and
1.1.4. any other documents attached to, or subsequently incorporated into, this Agreement, Service Schedule(s), or any Order(s) for Service.
1.2. Each contract will comprise a Service Order and a Service Schedule and all attachments or annexures thereto and will incorporate the terms and conditions of this Agreement (Contract) to the exclusion of any purchase order, confirmation, terms and conditions or other document issued or provided by You.
1.3. The Customer has:
1.3.1. signed or will sign a Service Order for Co-location or Hosting Services and a Master Services Agreement, and, in case of the first engagement for Co-location or Hosting Services, will sign this Master Services Agreement or;
1.3.2. placed an Order online for Co-location or Hosting Services and agreed to have read this Master Services Agreement and any related Service Schedule and have signed a�»Summary of Agreement for Supply of Services�¼ form.
1.4. For the avoidance of doubt, any usage by the You and/or Your End-Users of any Co-location or Hosting Service constitutes acceptance of the above documentation.
2. Term
2.1. This Agreement commences on the Commencement Date and, subject to earlier termination in accordance with its terms, will remain in force without limit of period until the last of the Contracts expires or is terminated.
2.2. Each Contract will commence on the Provisioning date of the Service Order, and, subject to earlier termination in accordance with the terms of this Agreement, operate for the term set out in the Service Order applicable to that Contract.
2.3. If under any Contract that is for a fixed term, Fenton Design Pty Ltd t/a By George Digital Design continues to supply and You continue to receive Services beyond the expiry of the prescribed initial term, both parties must continue to comply with their obligations and, for so long as the parties make no objection, such Contract will be deemed to be extended for successive periods equal to the previous term, subject always to the right to terminate under clause 13.4.
3. The Services
3.1. The Supply of Services
3.1.1. Fenton Design Pty Ltd t/a By George Digital Design will provide the Services in accordance with this Agreement and the terms of any Contract.
3.1.2. You will use the Services (and will ensure that Your End Users use the Services) in accordance with this Agreement, any Contract and all applicable laws and regulations.
3.2. Request for Additional Services and/or Quantities
3.2.1. You may order additional Service(s) by completing an new Service Order form.
3.2.2. You may order additional quantities under any current Service Schedule during the term of that Service Schedule by requesting an upgrade to a current Service Order.
3.2.3. If Fenton Design Pty Ltd t/a By George Digital Design does accept any such request falling within clauses 3.2.1 and 3.2.2, Fenton Design Pty Ltd t/a By George Digital Design shall provide such Service to You in accordance with the particular terms of the Service Order(s), the relevant Service Schedule and this Master Services Agreement.
3.3. . Amendment of this Agreement
3.3.1. Fenton Design Pty Ltd t/a By George Digital Design may amend any part of this Agreement at any time without Your consent by not less than 10 Business Days notice in writing where the amendment:
3.3.1.1. does not have a material adverse impact upon Your rights under this Agreement (in Fenton Design Pty Ltd t/a By George Digital Design's reasonable opinion); or
3.3.1.2. relates to improvements in the Service.
3.3.1.3. If Fenton Design Pty Ltd t/a By George Digital Design wishes to amend the terms of this Agreement otherwise than in accordance with clause 3.3.1, Fenton Design Pty Ltd t/a By George Digital Design may do so at any time by giving You 10 Business Days prior notice (the Amendment Notice Period).
3.3.1.4. Upon receipt of a notice under clause 3.3.1.2, You may terminate this Agreement or, where the amendment is to be made to one or more Service Schedule(s) and/or Order(s) for Service, the relevant Service Schedule(s) and/or Order(s) for Service by giving not less than 10 Business Days prior notice to Fenton Design Pty Ltd t/a By George Digital Design during the Amendment Notice Period. Any such termination must take effect within 10 Business Days of the end of the Amendment Notice Period.
3.3.1.5. If at the end of the Amendment Notice Period You have not elected to terminate this Agreement, or the relevant Service Schedule(s) and/or Order(s) for Service, You will be deemed to have accepted the amendment(s) notified to You in accordance with clause 3.3.1.2 and You will lose Your right of termination under clause 3.3.1.3.
3.4. Refusal of Service
3.4.1. Fenton Design Pty Ltd t/a By George Digital Design reserves the right to refuse, cancel, suspend or terminate any service and/or contract at our sole discretion.
4. Parties' Responsibilities Compliance with laws
4.1. You must:
4.1.1. hold all authorisations, permits and licences required under applicable law to receive and utilise the Services; and
4.1.2. comply with the requirements of all laws of any kind applying to the receipt and utilisation of the Services.
Your Equipment
4.5. Fenton Design Pty Ltd t/a By George Digital Design will not be responsible for including but not limited to, the operation, maintenance or repair of Your equipment and such equipment at all times remains at the risk of You and Fenton Design Pty Ltd t/a By George Digital Design will not assume any responsibility for the operation, safety or security of such equipment.
4.6. You are solely responsible for the transmission and reception of communications signals by Your equipment and the quality of and/or defects in such signals, and Fenton Design Pty Ltd t/a By George Digital Design has no responsibility for the same. You must ensure that Your equipment does not damage or interfere with Fenton Design Pty Ltd t/a By George Digital Design Equipment, Facilities or Network.
4.7. Subject to 4.6 Fenton Design Pty Ltd t/a By George Digital Design may at its discretion temporarily shutdown the Service to You if it is found that Your equipment is or may damage or interfere with Fenton Design Pty Ltd t/a By George Digital Design Equipment, Facilities or Network and other Customer Equipment. Where possible Fenton Design Pty Ltd t/a By George Digital Design will attempt to communicate to You such intent and give options to You to remedy
the cause.
Protection of facilities
4.8. If Fenton Design Pty Ltd t/a By George Digital Design is given access to any of Your facilities or systems to enable it to provide the Services, Fenton Design Pty Ltd t/a By George Digital Design will:
4.8.1. take reasonable care in accessing such facilities and systems, including all hardware, software and applications and observe all reasonable security procedures and work practices;
4.8.2. not unreasonably interfere with or disrupt such facilities or systems; and
4.8.3. ensure that such facilities or systems are protected from unauthorised access or use, or misuse, damage or destruction by any Fenton Design Pty Ltd t/a By George Digital Design authorised persons.
Use of Services
4.16. You are solely responsible for all use of the Services, including all fees and charges in connection therewith, notwithstanding that any use and/or charges may have been fraudulent, illegal or not authorised by You.
4.17. Nothing in clause 4.18 will be construed as imposing an obligation on Fenton Design Pty Ltd t/a By George Digital Design to monitor, detect and/or report fraudulent, illegal or unauthorised use of the Services.
4.18. The Customer may use the Services only in accordance with all applicable laws and regulations.
4.19. Fenton Design Pty Ltd t/a By George Digital Design may temporarily suspend the Service if it feels that fraudulent, illegal or unauthorised use of the Service(s) is occurring. In such case Fenton Design Pty Ltd t/a By George Digital Design will attempt to contact you and aware you of such action.
General obligations
4.20. During the term You will:
4.20.1. adhere to Fenton Design Pty Ltd t/a By George Digital Design operational procedures and technical specifications and any other reasonable directions given by Fenton Design Pty Ltd t/a By George Digital Design in relation to your obligations under this Agreement, Service Schedule(s) and Order(s) for Service from time to time;
4.20.2. not do, or permit to be done, any act which damages the reputation of Fenton Design Pty Ltd t/a By George Digital Design;
4.20.3. ensure that End User Contracts make no reference to Fenton Design Pty Ltd t/a By George Digital Design and exclude Fenton Design Pty Ltd t/a By George Digital Design (as Your supplier of the Services) from any liability to End Users;
4.20.4. not offer or supply, or purport to offer or supply, any other services of Fenton Design Pty Ltd t/a By George Digital Design that are not included in the Services You have with Fenton Design Pty Ltd t/a By George Digital Design;
4.20.5. when dealing with End Users, not attribute blame for fault or other problems with the Services to Fenton Design Pty Ltd t/a By George Digital Design unless not doing so would require You to engage in unethical, misleading or deceptive conduct; and
4.20.6. provide, and ensure End Users or any other relevant persons provide, Fenton Design Pty Ltd t/a By George Digital Design and/or our suppliers with full, free and safe access to the relevant premises if required for Fenton Design Pty Ltd t/a By George Digital Design and/or our suppliers to repair or restore the Services or the Fenton Design Pty Ltd t/a By George Digital Design Network or in order for Fenton Design Pty Ltd t/a By George Digital Design to exercise our rights under this Agreement.
5. Representatives, key people and employees Representatives
5.1. The Customer must appoint and notify to Fenton Design Pty Ltd t/a By George Digital Design in writing its representative under this Agreement (Representative). Unless otherwise agreed in any Contract, the Representative will be responsible for the day-to-day administration of this Agreement and each Contract on behalf of You. The initial Representative You will be the person named as the Order Contact in a relevant Service Order.
5.2. You must notify Fenton Design Pty Ltd t/a By George Digital Design immediately by Your Managing Director or position of equal stature should its Representative be removed or replaced, together with the contact details of its new Representative, or of any change to its Representative's contact details. Fenton Design Pty Ltd t/a By George Digital Design will not assume any responsibility whatsoever if requests are made by the said Representative and that Representative is no longer authorised to do so by you.
5.3. You will be responsible for the acts, omissions and defaults of its Representative. Any direction, instruction, notice, approval or other communication made or given to the Representative will be deemed to have been made or given to You.
6. Payments
Service payments
6.1. The Customer must pay to Fenton Design Pty Ltd t/a By George Digital Design the fees set out in any Contract for providing the Services. The Customer must make all payments to Fenton Design Pty Ltd t/a By George Digital Design in accordance with the rates and charges set out in each Contract. We will invoice you:
6.1.1. in arrears for Usage Based Charges and any Services; and
6.1.2. in advance for any Installation Charges, Setup Charges, Recurring Charges and all other Charges.
Invoices and payment
6.2. Unless otherwise agreed in any Contract, Fenton Design Pty Ltd t/a By George Digital Design will submit invoices to you detailing the payments to be made by you. Charges which are dependent on Customer usage will be invoiced monthly in arrears. The Customer must pay all invoices within fourteen (14) days of the date of the invoice.
Disputed invoices
6.3. In the case of any invoice disputed in good faith by You, You must give prompt written notice to Fenton Design Pty Ltd t/a By George Digital Design of any such dispute, which must include the reasons for the dispute, and in any event within thirty (30) days of receiving the invoice.
6.3.1. You must pay the invoice containing the Charge that is being disputed in full in accordance with this Agreement.
6.3.2. Fenton Design Pty Ltd t/a By George Digital Design is not obliged to accept a notice of a Billing Dispute in relation to an invoice unless You have complied with clause 6.3.1
6.3.3. You may be requested to provide further details of Your Billing Dispute to Fenton Design Pty Ltd t/a By George Digital Design in accordance with a notice in writing provided to You by Fenton Design Pty Ltd t/a By George Digital Design.
6.3.4. where any such dispute is determined to be unfounded, You must pay to Fenton Design Pty Ltd t/a By George Digital Design in full the amount withheld within seven (7) days of such determination or by the due date of the disputed invoice, whichever occurs later.
6.3.5. Failure to Notify Fenton Design Pty Ltd t/a By George Digital Design
6.3.5.1. In the event that You do not:
6.3.5.1.1. notify Fenton Design Pty Ltd t/a By George Digital Design of a Billing Dispute within the time period specified in clause 6.3; or
6.3.5.1.2. provide the requested additional information to Fenton Design Pty Ltd t/a By George Digital Design within seven (7) days of receipt of Fenton Design Pty Ltd t/a By George Digital Design request for further information under clause 6.3.3; or
6.3.5.1.3. pay all amounts (including any disputed amounts) in the invoice to which the Billing Dispute relates by the due date, then all amounts in the invoice to which the Billing Dispute relates will be deemed to be agreed and accepted by You and acknowledged as a debt due and payable in accordance with the terms of this Agreement.
6.3.6. where any such dispute is determined to be founded and You have paid the disputed amount, Fenton Design Pty Ltd t/a By George Digital Design must pay to You, via refund or account credit in full the relevant amount within seven (7) days of such determination.
Sums payable in full
6.4. All sums payable under this Agreement and any Contract are payable in full without deduction, withholding, set-off or counterclaim for any reason whatsoever, whether arising in contract, tort (including negligence), breach of statutory duty or otherwise, save as may be required by law.
Credit approval
6.5. Unless the Service Order provides otherwise, provision of the Services is subject to Fenton Design Pty Ltd t/a By George Digital Design being satisfied at all times with the credit rating of You and granting credit approval to You. The Customer must provide to Fenton Design Pty Ltd t/a By George Digital Design upon request, any information required by Fenton Design Pty Ltd t/a By George Digital Design for the purpose of assessing the credit rating of You. If at any time Fenton Design Pty Ltd t/a By George Digital Design is not satisfied with the credit rating of You it may require You to:
6.5.1. pre-pay amounts in respect of fees;
6.5.2. lodge a deposit as security for payment;
6.5.3. provide a guarantee from Your directors in their personal capacity as security for (among other things) the due and punctual performance of Your obligations under this Agreement.; and/or
6.5.4. put in place other credit and/or security arrangements satisfactory to Fenton Design Pty Ltd t/a By George Digital Design in respect of payment of fees, including but not limited to establishment of an automatic bank debit drawn on a debit, credit or other account of You.
Late payment
6.6. If You are overdue with any payment hereunder, then without prejudice to Fenton Design Pty Ltd t/a By George Digital Design other rights or remedies:
6.6.1. interest - You is liable to pay interest on the overdue amount at an annual rate of 5% above the Fenton Design Pty Ltd t/a By George Digital Design prevailing base rate of Fenton Design Pty Ltd t/a By George Digital Design principal bankers, which interest will accrue on a daily basis from the date payment becomes overdue until Fenton Design Pty Ltd t/a By George Digital Design has received full payment of the overdue amount together with all interest that has accrued and is payable within thirty (30) days of the date of Fenton Design Pty Ltd t/a By George Digital Design invoice in respect of the same;
6.6.2. Suspension - Fenton Design Pty Ltd t/a By George Digital Design has the right to suspend all or part of the Service until You rectifies matters. Un-suspension fees will apply; and 6.6.3. Lien of equipment - You hereby grant Fenton Design Pty Ltd t/a By George Digital Design a Lien over Your equipment and Your data in the custody, possession or control of Fenton Design Pty Ltd t/a By George Digital Design for any unpaid fees payable to Fenton Design Pty Ltd t/a By George Digital Design by You pursuant hereto and Fenton Design Pty Ltd t/a By George Digital Design is hereby authorised and empowered to sell any of the aforesaid to recover all or any such fees or expenses together with interest thereon which remain unpaid in excess of sixty (60) days from the due date.
Payment for variations
6.7. If You direct Fenton Design Pty Ltd t/a By George Digital Design in writing to alter or vary the Services, or direct Fenton Design Pty Ltd t/a By George Digital Design to carry out any work of a character similar to the Services, Fenton Design Pty Ltd t/a By George Digital Design may provide to You a separate offer to supply such additional or varied Services at fees to be determined by Fenton Design Pty Ltd t/a By George Digital Design. If You accept in writing the fees set out in the offer, Fenton Design Pty Ltd t/a By George Digital Design will supply such additional or varied Services at the agreed fees.
Increased costs and fee variation
6.8. If, as a consequence of the supply of incorrect information by You, the cost to Fenton Design Pty Ltd t/a By George Digital Design of performing the Services is increased, Fenton Design Pty Ltd t/a By George Digital Design reserves the right to charge extra fees at its then prevailing rates to cover such additional costs and expense.
6.9. If, at any time during the term of this Agreement, there is an increase in Fenton Design Pty Ltd t/a By George Digital Design cost of providing the Services, Fenton Design Pty Ltd t/a By George Digital Design may review and modify the Charges and advise You by notice in writing (the Revised Charges). The Revised Charges so advised will become the Charges effective from the date that is ten (10) Business Days after the date of the notice or upon your next invoice renewal, whichever occurs first.
6.10. If Fenton Design Pty Ltd t/a By George Digital Design varies the Charges under clauses 6.8 and/or 6.9, Fenton Design Pty Ltd t/a By George Digital Design may require from You an additional form of security or prepayment, as applicable, to cover the Revised Charges.
Goods and Services Tax
6.11. Unless stated otherwise, all prices quoted for supplies made and/or to be made under this Agreement are in Australian dollars and are exclusive of GST.
6.12. If GST is applicable to any supply made by Fenton Design Pty Ltd t/a By George Digital Design under this Agreement, Fenton Design Pty Ltd t/a By George Digital Design is entitled to add to the amount otherwise payable an additional amount for the applicable GST.
6.13. You hereby agree to pay Fenton Design Pty Ltd t/a By George Digital Design such GST charge in the same manner and at the same time as the payment for the relevant supply.
6.14. Fenton Design Pty Ltd t/a By George Digital Design will issue tax invoices to You for the purposes of GST.
6.15. For the purposes of this clause 12.4, “GST” means the Goods New Tax System (Goods and Services Tax) Act 1999 (Cth).
Fee indexation
6.16. If upon the expiry of the initial term of any Contract the provision of Services continues under clause 2.3 of this Agreement or any continuation or rollover provision in any Service Schedule, the fees will be increased on and from the first day of any such renewed or holding over period by an amount equivalent to the increase in the CPI for the twelve (12) month period preceding the price increase (or, where data showing the percentage increase for the entirety of such period is not available on such review date, the most recently updated data).
7. Intellectual Property
Fenton Design Pty Ltd t/a By George Digital Design Intellectual Property
7.1. You acknowledge and agree that all property, copyright and other intellectual property rights in work arising from or created, produced or developed by Fenton Design Pty Ltd t/a By George Digital Design (whether alone or jointly with others) under or in the course of this Agreement or any Contract (�»Works�¼), wherever in the world enforceable, including without limitation all right, title and interest in and to the equipment, facilities and/or Services and all documents, data, drawings, specifications, articles, computer programs, object code, source code, network designs, notes, sketches, drawings, reports, inventions, improvements, modifications, discoveries, tools, scripts or other items relating thereto, will immediately upon creation or performance vest in and will be and remain the sole and exclusive property of Fenton Design Pty Ltd t/a By George Digital Design, and You acquire no right, title or interest in or to the same. You agree, at Fenton Design Pty Ltd t/a By George Digital Design request, to take all such actions and execute all such documents as may in Fenton Design Pty Ltd t/a By George Digital Design reasonable opinion be necessary to enable Fenton Design Pty Ltd t/a By George Digital Design to obtain, defend or enforce its rights in the Works, and must not do or fail to do any act which would or might prejudice Fenton Design Pty Ltd t/a By George Digital Design rights under this clause.
Pre-existing intellectual property 7.2. Without limitation to clause
7.1, for the avoidance of doubt, if and to the extent that any of the equipment, facilities and/or Services comprise, include or have been created, produced or developed using any pre-existing copyright work belonging to Fenton Design Pty Ltd t/a By George Digital Design or any third party, all right, title and interest in and to such existing copyright remains with Fenton Design Pty Ltd t/a By George Digital Design or such third party.
No grant of rights
7.3. Nothing in this Agreement or any Contract has the effect of granting or transferring to, or vesting in, You any intellectual property rights, or any other right, title or interest, in or to any ideas, strategies, methodologies, processes, concepts or policies belonging to, devised, developed or created by Fenton Design Pty Ltd t/a By George Digital Design or any third party whether before or in the course of performance of this Agreement or any Contract or otherwise, or any material, item or work devised, developed or created by Fenton Design Pty Ltd t/a By George Digital Design or any third party prior to or during the term of this Agreement or any Contract.
8. Confidentiality
8.1. Each party acknowledges that in the course of performing its obligations hereunder it will receive information which is proprietary and confidential to the other party (and in the case of Fenton Design Pty Ltd t/a By George Digital Design, its licensors) (�»Confidential Information�¼). Confidential Information includes without limitation:
8.1.1. information in any Fenton Design Pty Ltd t/a By George Digital Design database that is made available online to You;
8.1.2. non-public price and service delivery information relating to Fenton Design Pty Ltd t/a By George Digital Design and/or its business; and
8.1.3. information obtained by Fenton Design Pty Ltd t/a By George Digital Design regarding Your use of Services.
8.2. Each party agrees not to use Confidential Information of the other party except in the proper performance of its obligations hereunder, and not to disclose the same to any person or entity other than the recipient party's employees, agents or contractors directly involved in the recipient party's performance hereunder who are bound by a separate written undertaking to protect the confidentiality of such Confidential Information.
Further permitted use and disclosure
8.3. Notwithstanding clause 8.2, either party may use or disclose Confidential Information only to the extent necessary to:
8.3.1. comply with any law, binding directive of a regulator or a court order;
8.3.2. comply with the listing rules of any stock exchange on which its securities are listed; or
8.3.3. obtain professional advice in relation to matters arising under or in connection with this document.
Exclusions
8.4. Clause 8.2 does not apply to Confidential Information:
8.4.1. which is in or becomes part of the public domain otherwise than through breach of an obligation of confidence; 8.4.2. which was known to a recipient party at the time of disclosure, unless such knowledge arose through breach of an obligation of confidence; or
8.4.3. which a recipient party acquires from a third party where that third party was entitled to disclose it.
Responsibility for Representatives
8.5. Each party must ensure that its employees, subcontractors, agents and representatives do not do, or omit to do anything, which if done or omitted to be done by such party,
would breach this clause 8.
Equitable remedies
8.6. Each party acknowledges that a breach of the confidentiality obligations set out in this clause 8 by it may cause the other irreparable damage for which monetary damages would not be an adequate remedy. Accordingly, in addition to a claim for damages and any other remedies available at law or in equity, such party may seek specific performance or injunctive relief (as appropriate) against any breach or threatened breach by the other party, or the employees, subcontractors, agents or Representatives of the other party.
Obligations to continue after agreement ends
8.7. All obligations of confidence set out in this clause 8 continue in full force and effect after the expiry or termination of this Agreement.
9. Privacy Disclosure of Personal Information
9.1. Each party warrants to the other that:
9.1.1. any Personal Information that it discloses to the other under this Agreement or any Contract has been collected in accordance with the Privacy Act 1998 (Cth);
9.1.2. the individual to whom the information relates has been made aware of the recipient's identity, of how to contact the recipient, and of the other matters of which the recipient is required to inform a person about whom it collects information under the Privacy Act 1998 (Cth); and
9.1.3. the other is authorised to collect the information for the disclosure and use the information for the purposes of this Agreement and any Contract.
Receipt of Personal Information
9.2. In relation to any Personal Information disclosed by a party under this document, the recipient must:
9.2.1. not use, disclose, store, transfer or handle the information except in accordance with the Privacy Act 1998 (Cth);
9.2.2. only use or disclose the information for a purpose connected with this Agreement or any Contract, or as required by law;
9.2.3. co-operate with any reasonable request or direction of the discloser which relates to the protection of the information or the exercise of the functions of the Privacy Commissioner under the Privacy Act 1998 (Cth);
9.2.4. ensure that access to its employees, Representatives and subcontractors is limited to people required to access that information for the purposes of this Agreement and any Contract and that they comply with the requirements of this clause and of the Privacy Act 1998 (Cth).
Complaints
9.3. Each party must promptly inform the other in writing of any complaint that it receives concerning the use, disclosure, storage, transfer or handling of Personal Information and comply with any reasonable direction of the other in relation to a complaint concerning the use, disclosure, storage, transfer or handling of Personal Information.
10. Warranties
General warranties
10.1. Each party represents and warrants to the other on a continuing basis that:
10.1.1. it has full corporate power and has taken all necessary action to enter into and perform to this Agreement and any Contract and to complete the transactions contemplated by this Agreement and any Contract;
10.1.2. on execution of this Agreement and any Contract, its obligations under this Agreement and any Contract will be valid, binding and enforceable; and
10.1.3. unless otherwise stated, it does not enter into this Agreement or any Contract as trustee of any trust.
Warranty regarding Services
10.2. Fenton Design Pty Ltd t/a By George Digital Design represents and warrants to You that:
10.2.1. the Services will be provided in accordance with any applicable Service Levels (if any).
Breach of Service level warranty
10.3. If specified in any Service Schedule Fenton Design Pty Ltd t/a By George Digital Design is required to give or allow Service Rebates to You in relation to any failure of Fenton Design Pty Ltd t/a By George Digital Design to comply with the warranty in clause 10.2.
10.4. If Service Rebates are applicable, Fenton Design Pty Ltd t/a By George Digital Design obligations to give or allow such rebates is the full extent of Fenton Design Pty Ltd t/a By George Digital Design liability and Your sole and exclusive remedy in respect of any failure by Fenton Design Pty Ltd t/a By George Digital Design to meet the Service Levels.
10.5.Fenton Design Pty Ltd t/a By George Digital Design liability to give or allow Service Rebates will be limited to the maximum amount specified in any Service Schedule.
10.6. The Customer acknowledges that any Service Rebates represent a genuine and reasonable pre-estimate of Your Loss arising from Fenton Design Pty Ltd t/a By George Digital Design breach of the warranty in clause 10.2. Exclusion of other conditions and warranties 10.7. The terms of this Agreement and any Contract are
in lieu of all conditions, warranties and other terms concerning the supply or purported supply or, failure to supply or delay in supplying the Services which might otherwise have effect between Fenton Design Pty Ltd t/a By George Digital Design and You or would otherwise be implied into or incorporated into this Agreement or any Contract whether by statute, common law or otherwise, all of which are hereby excluded to the maximum extent permitted by law (including, without limitation any condition, warranty or other term in relation to merchantability and fitness for a particular purpose). The Customer accepts all responsibility for the selection of the Services to meet its requirements. Fenton Design Pty Ltd t/a By George Digital Design does not warrant that the Services will be suitable for such requirements nor that any Services will be uninterrupted or error-free.
Liability for breach of non-excludable warranties
10.8. Where any legislation, such as the Trade Practices Act 1974 (Cth) implies into this Agreement or any Contract, any condition or warranty and that legislation voids or prohibits conditions in a contract excluding the application of the condition or warranty, the liability of Fenton Design Pty Ltd t/a By George Digital Design for any breach of the condition or warranty is limited to, at Fenton Design Pty Ltd t/a By George Digital Design option, in the case of Services to either:
10.8.1. the resupply of the Services; or
10.8.2. the reasonable cost of having the Services resupplied; or in the case of goods:
10.8.3. the replacement of the goods or the supply of equivalent goods;
10.8.4. the repair of any defect in the goods; or
10.8.5. the reasonable cost of replacement of the goods.
11. Liability and indemnity
Extent of liability
11.1. Subject to clause 11.3 but without prejudice to clause 10.5, the maximum aggregate liability of Fenton Design Pty Ltd t/a By George Digital Design and any of its affiliates', agents' and subcontractors to You in respect of:
11.1.1. any one claim or series of connected claims under a Contract, whether arising in or for breach of contract, tort (including negligence) breach of statutory duty, indemnity or otherwise, will in no circumstances exceed the fees paid under that Contract in the six (6) months preceding the occurrence of the event giving rise to such claim or series of connected claims;
11.1.2. any Contract, whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, indemnity or otherwise, will in no circumstances exceed in respect of all claims made in any year half of the fees paid in the twelve (12) months prior to the occurrence of the last event giving rise to such claim. The above limitations are to be read and construed independently of one another and if, on application of the limitations, any ambiguity exists, the limitation resulting in the minimum liability for Fenton Design Pty Ltd t/a By George Digital Design will apply.
11.2. In no event will Fenton Design Pty Ltd t/a By George Digital Design or its affiliates, agents and subcontractors, be liable under or in connection with this Agreement or any Contract, for any loss of income, loss of actual or anticipated profits, loss of business, loss of anticipated savings, loss of damage to or corruption of data, loss of goodwill, loss of reputation or for any special indirect, incidental or consequential loss or damage of any kind in each case howsoever arising, whether such loss or damage was foreseeable in the contemplation of the parties and whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, indemnity or otherwise.
11.3. Nothing in this clause 11 excludes or in any way limits Fenton Design Pty Ltd t/a By George Digital Design or its affiliates', agents' or subcontractors' liability to You to the extent the same may not be excluded or limited as a matter of law.
Indemnity
11.4. You indemnify Fenton Design Pty Ltd t/a By George Digital Design, and will keep Fenton Design Pty Ltd t/a By George Digital Design fully indemnified, from and against any losses, damages, costs and/or expenses (including legal costs assessed on a solicitor client basis) which Fenton Design Pty Ltd t/a By George Digital Design may suffer or incur arising out of or in connection with an action or claim brought by a third party against Fenton Design Pty Ltd t/a By George Digital Design which relates to Your (or any of Your End Users) use of the Services including, without limitation, as a result of:
11.4.1. the transmission of any illegal, fraudulent or offensive material by You (or any of Your End Users);
11.4.2. any breach of this Agreement by You; or
11.4.3. any wilful, unlawful or negligent act or omission of You (or any of Your End Users).
11.4.4. You indemnify Fenton Design Pty Ltd t/a By George Digital Design from and against any claims, demands, actions, suits, proceedings, costs, expenses, damages, losses and liabilities which Fenton Design Pty Ltd t/a By George Digital Design suffers or incurs in connection with Fenton Design Pty Ltd t/a By George Digital Design fulfilling our obligation under this Agreement
11.4.5. You are liable to pay Fenton Design Pty Ltd t/a By George Digital Design for all Charges in respect of any such End User.
11.4.6. Fenton Design Pty Ltd t/a By George Digital Design does not warrant that the Services will be free of interruptions, delays, faults or errors. Fenton Design Pty Ltd t/a By George Digital Design will not be responsible for any loss and/or damage to Your business and/or equipment and/or Your End Users�¼ business and/or equipment that may result from any interruptions, delays, faults or errors in the supply of the Services.
11.4.7. All terms, conditions and/or warranties that may be implied into this Agreement, statutory and otherwise, relating to the provision of the Services by Fenton Design Pty Ltd t/a By George Digital Design are excluded to the fullest extent permitted by law.
11.4.8. Fenton Design Pty Ltd t/a By George Digital Design liability for breach of any term, condition or warranty, or under any remedy implied by law, which cannot be lawfully excluded, will be:
11.4.8.1. limited (if permitted by law), at Fenton Design Pty Ltd t/a By George Digital Design option, to the repair or re-supply of equipment or Services or the payment of the cost of having the equipment or Services resupplied; and
11.4.8.2. reduced to the extent that such liability is caused by Your negligent acts and/or omissions and/or a breach by You of the terms of this Agreement.
11.5. The aggregate liability of Fenton Design Pty Ltd t/a By George Digital Design for all direct, indirect and consequential losses, damages, costs, expenses, actions and claims arising out of, or otherwise in connection with, this Agreement, whether based on an action or claim in contract, equity, negligence, intended conduct, tort or otherwise, is limited to the total fees paid by You for the affected Service(s) in the six (6) months preceding the relevant cause of action accruing or, if there are more than one, the last cause of action accruing.
11.6. Fenton Design Pty Ltd t/a By George Digital Design has no liability to You, any of Your End Users or to any other person, for:
11.6.1. the acts or omissions of any third party, including the suppliers which have been engaged by Fenton Design Pty Ltd t/a By George Digital Design for the purpose of supplying or maintaining a Service supplied to You under this Agreement;
11.6.2. faults or defects in Services which are caused by Your own conduct or misuse or the conduct or misuse of Your End Users;
11.6.3. faults or defects that arise in telecommunication services provided to You other than under this Agreement (even if they are connected with Fenton Design Pty Ltd t/a By George Digital Design consent to Services which Fenton Design Pty Ltd t/a By George Digital Design has supplied under this Agreement);
11.6.4. any loss of revenue or profits, loss of data, loss of bargain and damage to reputation or for any form of indirect or consequential loss, whether in respect of breach of contract, equity, negligence, intended conduct, tort or otherwise, arising out of, or in connection with, the provision of the Services or this Agreement;
11.6.5. faults or defects in the Services that arise due to equipment or cabling owned or leased by You or an End User or otherwise in Your control or Your End Users�¼ control; or
11.6.6. faults or defects in the Services that arise due to failure by You or any third party (other than a contractor or agent engaged by Fenton Design Pty Ltd t/a By George Digital Design) to appropriately maintain any equipment or cabling relevant to the supply of the Services.
11.7. Any payment to be made by You under the indemnity in clauses above must be made in full within fourteen (14) days of written demand.
12. Insurance
Maintain cover
12.1. The Customer must effect and maintain during the term of any Contract insurances for the risks and for the limits of cover as specified in a relevant Service Order.
13. Termination
Termination
13.1. Either party may terminate a Contract immediately at any time by written notice to the other if:
13.1.1. the other party commits a material breach of its obligations under this Contract which is irremediable or which it fails to remedy within fourteen (14) days after receiving a written notice from the other specifying the breach and requiring it to be remedied;
13.1.2. the other party is the subject of an Adverse Event; or
13.1.3. destruction and/or damage to equipment and/or facilities supplied by Fenton Design Pty Ltd t/a By George Digital Design renders the equipment, facilities or Services unusable or inoperable for more than seven (7) days.
13.2. For the avoidance of doubt, failure by Fenton Design Pty Ltd t/a By George Digital Design to satisfy any Service Levels will not of itself, be considered a material breach of any Contract for the purposes of clause 13.1.
Termination by Fenton Design Pty Ltd t/a By George Digital Design
13.3. Without limitation to clause 13.1, Fenton Design Pty Ltd t/a By George Digital Design may immediately terminate a Contract by written notice to You if any of the following occurs:
13.3.1. You fail after Fenton Design Pty Ltd t/a By George Digital Design has provided seven (7) days�¼ notice to pay an amount that is due (and not under dispute under clause 6.3) under a Contract;
13.3.2. the Customer engages in fraudulent, illegal or unauthorised use of the Services;
13.3.3. You is in breach of an applicable law, licence, permit, authorisation or directive of any competent authority relating to the use of the Services;
13.3.4. Fenton Design Pty Ltd t/a By George Digital Design becomes aware or is advised by any regulatory authority that applicable or relevant laws, rules, regulations or authorities, or any decision of a court or government authority, prohibits the provision of the Service;
13.3.5. any application for a consent or permit required for the provision of the Service is rejected or is cancelled, lapses or is otherwise terminated and no further replacement, consent or permit can reasonably be obtained;
13.3.6. cancellation, termination or expiration of any head lease or licence governing the site from which the Services are provided, or where the equipment and or facilities are located;
13.3.7. if applicable, You materially exceed Your agreed credit limit in relation to the Contract; or
13.3.8. You is in material breach of any other Contract with Fenton Design Pty Ltd t/a By George Digital Design.
Termination of extended term
13.4. If the parties are operating under any extension under clause 2.3 such extended term may be terminated by either party on thirty (30) days�¼ written notice.
14. Obligations at end of agreement
Fenton Design Pty Ltd t/a By George Digital Design rights on termination
14.1. Upon termination of any Contract, Fenton Design Pty Ltd t/a By George Digital Design is entitled to do each of the following:
14.1.1. retain a pro rata portion of any money paid to it;
14.1.2. charge a reasonable amount in respect of Services which it has performed but not charged for;
14.1.3. enter Customer Premises on reasonable notice and take possession of and/or retrieve any facilities or equipment owned or supplied by Fenton Design Pty Ltd t/a By George Digital Design that are in the possession, custody or control of You, and You must provide access to any Customer Premises for such purpose;
14.1.4. take any additional action it is legally entitled to take;
14.1.5. demand and receive from You immediate payment of any termination charge set out in a Service Order or Service Schedule.
Consequences of termination
14.2. Termination of any Contract will be without prejudice to any rights of either party that have accrued under this Contract prior to the date of termination.
14.3. Upon termination of any Contract for any reason:
14.3.1. You must immediately pay to Fenton Design Pty Ltd t/a By George Digital Design any sums due to Fenton Design Pty Ltd t/a By George Digital Design under such Contract;
14.3.2. Fenton Design Pty Ltd t/a By George Digital Design will cease to provide the Services and Your right to acquire and use the Services will cease;
14.3.3. You must, at Your own expense and at the option of Fenton Design Pty Ltd t/a By George Digital Design deliver each of the following to Fenton Design Pty Ltd t/a By George Digital Design, or destroy them in accordance with any instructions given by Fenton Design Pty Ltd t/a By George Digital Design:
14.3.3.1. any intellectual property of Fenton Design Pty Ltd t/a By George Digital Design then in Your possession or control;
14.3.3.2. any Confidential Information of Fenton Design Pty Ltd t/a By George Digital Design then in Your possession or control; such a right.
14.3.3.3. any Personal Information disclosed by Fenton Design Pty Ltd t/a By George Digital Design to You.
14.3.4. Fenton Design Pty Ltd t/a By George Digital Design must, at its own expense and at the option of You deliver party's failure to perform, or delay in performing, an each of the following to You, or destroy them in accordance with any instructions given by the following conditions is satisfied: Customer:
14.3.4.1. any intellectual property of You then in Fenton Design Pty Ltd t/a By George Digital Design possession or control;
14.3.4.2. any Confidential Information of You then in Fenton Design Pty Ltd t/a By George Digital Design possession or control;
14.3.4.3. any Personal Information disclosed by You to Fenton Design Pty Ltd t/a By George Digital Design.
15. Suspension
15.1. Fenton Design Pty Ltd t/a By George Digital Design will endeavour to give as much notice as reasonably practicable of any Service suspension and will use reasonable endeavours to minimise any Service disruption and/or suspension.
15.2. Subject to clause 15.1 Fenton Design Pty Ltd t/a By George Digital Design may suspend part of all of the performance of the Services immediately where:
15.2.1. Fenton Design Pty Ltd t/a By George Digital Design is required to undertake the repair, maintenance or service of any part of the facilities or equipment owned, under contract or operated by Fenton Design Pty Ltd t/a By George Digital Design relevant to the provision of the Services (or an interconnected supplier is required to undertake such work on its network);
15.2.2. it is reasonably required to reduce or prevent fraud, illegality or interference within Fenton Design Pty Ltd t/a By George Digital Design network;
15.2.3. Fenton Design Pty Ltd t/a By George Digital Design is required to comply with an order, instruction or request of or by a government or regulatory authority, the ACMA, emergency services or other competent authority; or
15.2.4. Fenton Design Pty Ltd t/a By George Digital Design has provided seven (7) days�¼ notice and You have not rectified Your failure to pay any charges (except charges in respect of which of priority: there exists a valid dispute) due to Fenton Design Pty Ltd t/a By George Digital Design pursuant to the Contract, and any suspension so occurring will be without prejudice to Fenton Design Pty Ltd t/a By George Digital Design rights to terminate the supply of the Services for breach in accordance with clause 13.1 or 13.3.
16. Dispute resolution
Meeting to attempt to resolve disputes
16.1. If a dispute arises under this Agreement or any Contract, either party may at any time give written notice to the other requesting that a meeting take place to seek to resolve the dispute. Nominated senior representatives of both parties writing and sent in one of the following ways: must meet within ten (10) business days of the notice and endeavour to resolve the dispute in good faith. If such meeting does not take place or if after ten (10) business days of the meeting the dispute remains unresolved, either party may pursue its rights at law.
Performance of obligations
16.2. During a dispute, each party must continue to perform its Change of address or fax number obligations under a Contract.
Interlocutory relief and right to terminate
16.3. Clauses 16.1 and 16.2 do not restrict or limit the right of either party to obtain interlocutory relief, or to immediately terminate this document where this document provides such a right.
17. Force Majeure
17.1. A party is not liable to the other for any loss or damage suffered or incurred by the other party arising from the first party's failure to perform, or delay in performing, an obligation (except an obligation to pay money) if each of the following conditions is satisfied:
17.1.1. the failure or delay arose from an event of Force Majeure;
17.1.2. the affected party took all reasonable precautions against that cause and used reasonable endeavours to mitigate its consequences. This does not require the party to settle a labour dispute if, in the party's opinion, that is not in its best interests;
17.1.3. the affected party gave the other party notice of the cause as soon as practicable after becoming aware of it.
17.2. If an event of Force Majeure continues for a period exceeding sixty (60) days either party is entitled to terminate the applicable Contract immediately by giving the other party written notice.
18. Application of Tariffs
18.1. Fenton Design Pty Ltd t/a By George Digital Design may elect or be required by law to file with the appropriate regulatory agency tariffs regarding the delivery of certain Services. In the event and to the extent that such tariffs have been or are filed in relation to the Service ordered by Customer, then (to the extent such provisions are not inconsistent with the terms of a Contract) the terms set forth in the applicable tariff will govern Fenton Design Pty Ltd t/a By George Digital Design delivery of, and Customer's consumption or use of, such Service.
19. Priority
19.1. In the event of any inconsistency between this Agreement, a Service Schedule, and a Service Order, than to the extent of such inconsistency the aforesaid document must be interpreted in accordance with the following order of priority:
19.1.1. the Service Order;
19.1.2. the Service Schedule;

19.1.3. this Agreement; then
19.1.4. any other documents or information incorporated by reference into this Agreement or any Contract.
19.1.5. In the event, and to the extent, of any inconsistency, the most recent Order for Service will prevail over any earlier Service Order.
20. Notices
Giving notices
20.1. Any notice, consent, information, application or request that must or may be given or made to a party under this Agreement or any Contract is only given or made if it is in writing, or posted on our website and sent in one of the following ways:
20.1.1. delivered or posted to that party at its address set out in a Service Order.
20.1.2. faxed to that party at its fax number set out in a Service Order.
20.1.3. emailed to that party at an email address set out in a Service Order.
20.1.4. The parties are made aware of the terms and information under Terms set out on our website.
Change of address or fax number
20.2. If a party gives the other party three (3) business days' notice of a change of its address, fax number or email address, any notice, consent, information, application or request is only given or made by that other party if it is delivered, posted, faxed or emailed to the latest address, fax number or email address. Time notice is given
20.3. Any notice, consent, information, application or request is to be treated as given or made at the following time:
20.3.1. if it is delivered, when it is left at the relevant address.
20.3.2. if it is sent by post, two (2) business days after it is posted.
20.3.3. if it is sent by fax, as soon as the sender receives from the sender's fax machine a report of an error free transmission to the correct fax number.
20.3.4. if it is sent by email, as soon as the sender receives from the sender's email server a report of an error free transmission to the receiver's server.
20.4. If any notice, consent, information, application or request is delivered, or an error free transmission report in relation to it is received, on a day that is not a business day, or if on a business day, after 5pm on that day in the place of the party to whom it is sent, it is to be treated as having been given or
made at the beginning of the next business day.
21. Miscellaneous
21.1. Except as may be expressly provided elsewhere in this Agreement, neither party may transfer, novate, assign or sub-license this Agreement or any Contract, or any of its rights or obligations hereunder without the prior written consent of the other party (not to be unreasonably withheld or delayed). For the avoidance of doubt, Fenton Design Pty Ltd t/a By George Digital Design will not provide its consent in the event that You propose to transfer, novate, assign or sub-license the Contract in competition with Fenton Design Pty Ltd t/a By George Digital Design business.
21.2. Notwithstanding clause
21.1, Fenton Design Pty Ltd t/a By George Digital Design may sub-contract the performance of this Agreement or any Contract, in whole or in part, to any third party.
21.3. Except as otherwise set out in this Agreement or any Contract, each party must pay its own costs in relation to preparing, negotiating and executing this Agreement or any Contract and any document related to this Agreement or any Contract.
21.4. This Agreement together with any relevant Service Order and Service Schedule contains everything the parties have agreed in relation to the matters it deals with and supersedes any prior agreement, understanding or arrangement between the parties, whether oral or in writing. No representation, undertaking or promise will be taken to have been given or implied from anything said or written in negotiations between the parties prior to this Agreement or any Contract except as expressly stated in this Agreement or any Contract. No party can rely on an earlier document, or anything said or done by another party, or by a director, officer, agent or employee of that party, before this document was executed, except as permitted by law.
21.5. This Agreement is properly executed if each party executes either this Agreement or an identical document. In the latter case, this Agreement takes effect when the separately executed Agreements are exchanged between the parties.
21.6. Each Service Schedule and Service Order is properly executed if each party executed either the same document or an identical document. In the later case, the document takes effect when the separately executed documents are exchanged between the parties.
21.7. Each party must promptly execute all documents and do all things that another party from time to time reasonably requests to effect, perfect or complete this Agreement and all transactions incidental to it.
21.8. This Agreement and each Contract is governed by the law of Queensland. The parties submit to the non-exclusive jurisdiction of its courts and courts of appeal from them. The parties will not object to the exercise of jurisdiction by those courts on any basis.
21.9. If a clause or part of a clause of this Agreement or any Contract can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this document, but the rest of this document is not affected.
21.10. Provisions of this Agreement or any Contract which either are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such termination, will remain in full force and effect notwithstanding such expiry or termination.
21.11. No variation of this Agreement, any Contract, Service Schedule or Service Order will be of any force or effect unless it is in writing and signed by the parties to this Agreement or the Contract to which it relates. The parties must negotiate in good faith regarding any changes to the terms and conditions.
21.12. The fact that a party fails to do, or delays in doing, something the party is entitled to do under this Agreement or any Contract, does not amount to a waiver of any obligation of, or breach of obligation by, another party. A waiver by a party is only effective if it is in writing. A written waiver by a party is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied waiver of any other obligation or breach or as an implied waiver of that obligation or breach in relation to any other occasion.
21.13. Fenton Design Pty Ltd t/a By George Digital Design may sub-contract any of our obligations, or any part of our obligations, under this Agreement without Your consent.
21.14. The parties must pay their own legal and related costs incurred in preparation of this Agreement.
22. Definitions and interpretation
Definitions
22.1. In this document the following definitions apply unless the context requires otherwise:
22.1.1. Adverse Event in relation to a party means any of the following:
22.1.1.1. You fail to pay any sum payable under this Agreement by the due date for payment;
22.1.1.2. You breach any provision of this Agreement and the breach is not capable of remedy;
22.1.1.3. You breach any provision of this Agreement which is capable of remedy and fail to remedy the breach within 7 days of the date of a notice from Fenton Design Pty Ltd t/a By George Digital Design demanding that the breach be remedied;
22.1.1.4. The party is liquidated or dissolved, or a step is taken to liquidate or dissolve it.
22.1.1.5. A liquidator, provisional liquidator, trustee, receiver or administrator of the party is appointed.
22.1.1.6. The party comes under an obligation to hand over to any third party any amount it has received from the other party, whether under this Agreement or not.
22.1.1.7. The party enters or proposes to enter into any form of agreement, composition, arrangement with, or assignment for the benefit of, any of its creditors without the consent of the other party.
22.1.1.8. A notice under section 601AB(3) of the Corporations Act 2001 (cth) is given in respect of the party.
22.1.1.9. The party is, or is reasonably assumed to be, subject to an event described in section 459C(2) of the Corporations Act 2001 (Cth), or is registered as being unable to pay its debts under section 585 of the Corporations Act 2001 (Cth).
22.1.1.10. The party ceasing, or indicating that it is about to cease, carrying on business.
22.1.1.11. Anything happening under any law or in any jurisdiction that is similar to, or has a similar effect to, any of the events listed above.
22.1.1.12. You have a Change in Control.
Business Day means a day on which banks (as defined in the Banking Act 1959 (Cth)) are open for general banking business in Brisbane Queensland, excluding Saturdays, Sundays and Public Holidays.
Contract has the same meaning given in clause 1.3 of this Agreement.
Corporations Act means the Corporations Act 2001(Cth) and any regulations made under it.
CPI means the Consumer Price Index (All Groups) Brisbane published by the Australian Bureau of Statistics from time to time or the index officially substituted for it and if no such index is available, such published price index agreed by the parties acting reasonably.
Effective Date means the date of signing this Agreement.
End User means any person who acquires the Services (or part thereof) from You and uses those Services (with or without Your authorisation).
Force Majeure includes but not limited to, an act of God, strike, lockout, other industrial disturbance or labour difficulty, war, act of public enemy, blockade, revolution, riot, insurrection, civil commotion, lightning, storm, flood, fire, earthquake, explosion, embargo, unavailability of any essential equipment or materials, unavoidable accident, lack of transportation, or anything done or not done by or to a person, government or other competent authority, except the party relying on force majeure.
Fenton Design Pty Ltd t/a By George Digital Design means our employees, agents, sub-contractors and others that are permitted to act upon our behalf.
Fenton Design Pty Ltd t/a By George Digital Design Equipment means any equipment owned by Fenton Design Pty Ltd t/a By George Digital Design and/or provided by Fenton Design Pty Ltd t/a By George Digital Design or it's contractors/sub-contractors to You for use in connection with the Services, other than equipment supplied by Fenton Design Pty Ltd t/a By George Digital Design to You by outright sale.
Fenton Design Pty Ltd t/a By George Digital Design Facility/Facilities means the location(s) used by Fenton Design Pty Ltd t/a By George Digital Design for services.
Fenton Design Pty Ltd t/a By George Digital Design Network means the telecommunications network used by Fenton Design Pty Ltd t/a By George Digital Design and its contractors/sub-contractors.
Initial Period means in respect of a Service ordered pursuant to the terms of the relevant Service
Schedule the period commencing on the “Service Commencement Date” as set out in the applicable Service Schedule until the expiry of the “Initial Period” set out in that Wholesale Service Schedule.
Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in writing or spoken, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
Related Entity has the same meaning as under the Corporations Act.
Representative means any director, officer, employee or agent appointed by a party under clause 5.1.
Service Levels means the levels of service (if any) applicable to a Contract as set out in an annexure to the relevant Service Schedule.
Service Order means a document in the standard form approved by Fenton Design Pty Ltd t/a By George Digital Design that sets out the details of You, the technical details of the Service and the commercial terms applicable to the supply of a Service. Also known as Order for Service.
Service Rebates means the service level rebates (if any) described in an annexure to the Service Schedule.
Service Schedule means the schedule(s) setting out the specific terms and conditions including Service Levels applicable to a category of Service
Services means the services to be provided by Fenton Design Pty Ltd t/a By George Digital Design to You under this Agreement and as set out in a Contract.
Your Premises means any premises owned or occupied by You as further described in a relevant Service Order and/or Service Schedule or at which Fenton Design Pty Ltd t/a By George Digital Design or contractors/sub-contractors equipment or facilities are located.
22.2. Interpretation
22.3. In the interpretation of this Agreement and any Contract, the following provisions apply unless the context otherwise requires:
22.3.1. Where the context so admits or requires words denoting the singular include the plural and vice versa and words denoting any gender include all genders.
22.3.2. Clause headings are purely for ease of reference and do not form part of or affect the interpretation of this Agreement.
22.3.3. References to Clauses and Schedules are to Clauses of and Schedules to this Agreement.
22.3.4. References to each party herein include references to its successors in title, permitted assigns and novatees.
22.3.5. The word “includes” is not a word of limitation.
22.3.6. A reference to a “day” or a “month” is a reference to a calendar day or to a calendar month, as applicable.