Terms (09/11/12)

Introduction

At Bloomtools, we seek to be straightforward and forthright with our customers, to avoid confusion about our respective obligations that apply to us and our Customers. This document sets out the terms and conditions upon which The Seller agrees to supply you, the Customer, with content management system, email marketing, event management, customer relationship management, website design and/or search engine optimisation services. The specific services The Seller has agreed to supply to you are specified in the accompanying Service Agreement. If you have any questions about this document, please contact us, or if you deem necessary – obtain legal advice.

Definitions

In this document:

Scope

1. This Agreement applies to all transactions between you and the Seller, including all future quotations, offers, orders and sales. This Agreement (which will only be waived or varied in writing signed by the Seller) will prevail over all other terms and conditions of all and any such transactions to the extent of any inconsistency.

2. The Seller will use its best endeavours to provide the services by any dates specified in any brochures or other documentation which may be produced by the Seller from time to time. Delivery of services is not subject to any service level guarantee.

3. From time to time, circumstances beyond the reasonable control of the Seller may result in the delay of delivery, or the temporary suspension, disconnection or non-supply of the services. In those circumstances the Seller will use its best endeavours to rectify any such problems; however any such circumstances will not entitle you to claim for any consequential loss or damage or to cancel, rescind or terminate our Agreement.

4. Should circumstances beyond the control of the Seller prevent or hinder delivery of the services, the Seller will be free from any obligation to deliver the services while such circumstances continue. For as long as such circumstances exist, the Seller may, at its option, cancel, rescind or terminate all or any part of the Agreement or keep the Agreement on foot until such circumstances have ceased. Such circumstances beyond the control of the Seller include, but are not limited to: strikes, lockouts, rebellions; fire; acts of God; shortages of raw materials; Government decrees, proclamations or orders; transport difficulties; denial-of-service (DOS) attacks and other circumstances of hacking, and failures or malfunctions of computers or other information technology systems.

Payment

5. The fees charged by the Seller for the services are set out on the accompanying Service Agreement.

6. The Seller accepts payment by credit card and BPay. Credit card payments attract a surcharge of 1.75%.

7. Customers are required to pay the Seller a $30 administration fee plus interest, on any amount due and not paid within the time required by this Agreement at the rate of 10% per annum.

8. Unless and to the extent an alternative finance arrangement or other payment plan is specified on the accompanying Service Agreement, as our Customer, you must pay:

(a) Where the total full-price specified in the accompanying Service Agreement is under $1500 + GST, pay to the Seller the full price upon your signing of this agreement.
(b) Where the total full-price price is greater than $1500 + GST, the Seller will debit from the Customer's bank account or credit card, four payments of 25% of the full price specified in the Service Agreement at the following milestones;

i) upon your signing of this Agreement,
ii) at the time the initial 2 previews have been created,
iii) once the design has been converted to HTML, and
iv) 30 days from the date of this agreement or prior to the website going live, whichever occurs first.

9. The Seller charges, in addition to the above fees, recurring fees payable in respect of maintenance and/or hosting services. All such fees shall be payable in advance at the frequency specified on the accompanying Service Agreement.

10. From time to time the Seller may consider it commercially desirable to increase its fees. In such circumstances the Seller shall provide the Customer with 30 days notice of any such increase. The Customer may terminate the services to which those fees are directly attributable, in the event the Customer does not approve any such increase.

11. All applicable taxes, duties or levies (including GST), payment gateway charges/online merchant fees and associated bank charges, domain name registration and renewal fees, and SSL certificate fees related to the services shall be payable by the Customer.

Termination

12. The Customer may terminate any recurring hosting or maintenance services upon providing the Seller with 30 days prior written notice.

13. The Seller may, at its option and without prejudice to any of its rights, either suspend any service, require payment in advance or terminate this Agreement or any other contract by written notice to the Customer where the Seller reasonably suspects the Customer to be in breach of any law, or where the Customer:

(a) defaults on any payment due under this Agreement;
(b) fails to rectify any breach of this Agreement within 30 days of notice;
(c) being a natural person, commits an act of bankruptcy;
(d) being a corporation, is subject to:

(i) a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
(ii) a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Customer’s property and undertaking;
(iii) the entering of a scheme of arrangement (other than for the purpose of restructuring); or
(iv) any assignment for the benefit of creditors.

14. Termination shall not relieve either party from any liability that has accrued on or before the date of termination and will not give cause for a refund of any monies paid or due to be paid as per this Agreement.

Advice and Information

15. The Customer must make its own enquiries into the suitability of the services to meet the Customer’s specific requirements. the Seller does not guarantee any Customers’ success or that any particular results will be achieved in connection with the services provided by the Seller hereunder. Without limiting the foregoing, there is no guarantee that search engine optimisation services will produce any specific result.

16. Any advice, recommendation, information, assistance or services given by the Seller is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty of accuracy, appropriateness or reliability and the Seller does not accept any liability or responsibility for any loss suffered from the Customer’s reliance on such advice, recommendation, information, assistance or service, to the extent available by law.

Confidentiality

17. The parties recognise and acknowledge the confidential nature of the Confidential Information.

18. Neither party may use or disclose any Confidential Information other than:

(a) to its employees to the extent necessary;
(b) with the express prior written consent of the other party; and
(c) to its professional advisers, on a confidential basis.

19. Each party agrees to implement such security arrangements as may be necessary to ensure that the secrecy of the Confidential Information is preserved.
Intellectual Property Rights

20. The Seller (or its licensors) is the sole owner of all rights (including Intellectual Property rights) in any software or other works the subject of the services supplied under this Agreement.

21. The Seller licenses the Customer, in exchange for the monthly fees payable by the Customer under this Agreement, on a limited, revocable, non-exclusive, temporary basis, to access the Seller’ Intellectual Property (and any software expressly licensed in writing to the Customer by the Seller) solely for the purpose of receiving the services solely via the computer servers of the Seller, during this Agreement.

22. The Customer must not, nor may it permit any other person to:

(a) copy, alter, modify, reproduce, reverse assemble, reverse compile or enhance the services or any related Intellectual Property;
(b) use, access or reproduce the services on or via any server not owned by the Seller;
(c) alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality, proprietary or trade secret, legend or notice, or any numbers, or other means of identification used on or in relation to the services;
(e) make any of the services available to any person other than its employees without the prior written consent of the Seller; or
(e) do any act that would or might invalidate or be inconsistent with the Seller’ Intellectual Property rights.

23. Notwithstanding the foregoing provisions, copyright in all graphical design work created by the Seller exclusively for the Customer shall be assigned to the Customer upon receipt by the Seller of full payment for the services. For the avoidance of confusion, images resupplied by the Seller for publication on the Customer’s website do not constitute such “graphical design work” and cannot be reassigned, transferred or sublicensed to any third party, due to restrictions imposed by the Seller’ image licensors. The Customer must adhere to all such restrictions.

24. The Customer shall indemnify the Seller against any claim by any third party for alleged infringement of any copyright or other Intellectual Property rights which arises as a result of the storage or processing of any of the Customer’s programs or data on the Seller’ systems and/or the provision of any information, materials or other assets of the Customer to the Seller.

25. Any data collected and transmitted on any website of the Customer in connection with the services shall be the sole risk and responsibility of the Customer. Without limiting the foregoing, the Customer is responsible for all backup, archiving and effecting insurance cover in respect of all such data. The Seller does not accept any responsibility for any loss of such data, or for the security of any such data.

E-Security

26. The Seller will use reasonable endeavours to ensure the integrity and security of the computer servers utilised by the Seller in connection with the provision of the services. the Seller does not guarantee that any such computer servers shall be free from unauthorised use or hacking.

27. You must keep confidential and secure your passwords and other confidential information relating to your access to the services. You must notify us immediately of any known or suspected unauthorised use of the services, or any known or suspected breach of security, including loss, theft or unauthorised disclosure of your password or other sensitive information. Notwithstanding such notification you will be liable for any and all uses of the services (and your websites which are hosted by the Seller in connection with such services) notwithstanding any fraudulent or improper use of your password or any other access via your account to any of the facilities or services provided by the Seller.

Acceptable Use Policy

28. The services may not be used in any manner that is illegal, discriminatory, abusive, insulting, threatening, obscene, harassing, racist, or otherwise inappropriate and your commission, or authorizing, aiding, abetting, encouraging or inciting any person to do or attempt to use the services in any such manner (including, but not limited to, by any one or more of the following acts) is strictly prohibited:-

(a) violation of all or any legal rights of any person or company or other entity in any jurisdiction is strictly prohibited (including, but not limited to, laws relating to crimes such as theft and fraud, and laws relating to the protection of copyright, trade secrets, patents or other intellectual property and laws relating to spam or privacy) and whether such violation is by way of the installation or distribution of "pirated” software or otherwise;
(b) unauthorized copying of copyrighted material including, but not limited to, digitisation and distribution of books or other copyrighted sources, copyrighted music or video and the installation of any copyrighted software for which you do not have an active license is strictly prohibited;
(c) exporting software, technical information, encryption software or technology, in violation of domestic export control laws, is strictly prohibited;
(d) introduction of malicious programs onto our webservers (e.g., viruses, worms, Trojan horses, e-mail bombs) is strictly prohibited;
(e) revealing your account password to others or allowing use of your membership account on our computer servers by others is strictly prohibited;
(f) using another person’s name, username or password or otherwise attempting to gain access to the membership account of any other person is strictly prohibited;
(g) using the services to actively engage in procuring or transmitting material that is in violation of sexual harassment or workplace relations laws is strictly prohibited;
(h) making fraudulent offers of goods or services is strictly prohibited;
(i) effecting security breaches or disruptions of network communication is strictly prohibited. Security breaches include, but are not limited to, accessing data of which you are not an intended recipient or logging into a server or account that you are not expressly authorised to access or corrupting any data. For the purposes of this paragraph, "disruption" includes, but is not limited to, network sniffing, pinged floods, packet spoofing, denial of service, and forged routing information for malicious purposes;
(j) executing any form of network monitoring which will intercept data not intended for you is strictly prohibited;
(k) circumventing user authentication or security mechanism of any service, or our network or any member account of the Seller is strictly prohibited;
(l) using any program/script/command, sending messages of any kind, or imposing unreasonable load on our servers with the intent to interfere with, or disable, any persons' access to any service or website, via any means, locally or via the Internet, is strictly prohibited;
(m) sending unsolicited email messages in breach of the Spam Act 2003 is strictly prohibited;
(n) any form of harassment via email, or any other form of harassing or spam messaging, whether through language, frequency, or size of messages is strictly prohibited;
(o) unauthorized use, or forging, of email header information is strictly prohibited;
(p) solicitation of email for any email address, with the intent to harass or to collect replies is strictly prohibited;
(q) creating or forwarding "chain letters", "Ponzi" or other "pyramid" schemes of any type is strictly prohibited; and
(r) use of the services in breach of any persons privacy (such as by way of identity theft or "phishing") is strictly prohibited.

Limitation of Liability

29. All warranties (including, without limitation, warranties and conditions as to fitness for purpose and merchantability), whether express or implied by statute, common law or otherwise, are excluded to the extent permitted by law. Without limiting the foregoing, to the extent possible by law, the Seller specifically excludes any warranty as to the accuracy or quality of information received by any person via any computer server operated or maintained by the Seller in connection with the services, and the Seller shall not be liable for any loss or damage to any data stored on any such server.

30. If the Seller breaches any condition or warranty implied by law which cannot lawfully be excluded, to the extent permitted by law the liability of the Seller is limited, at its option, to:

30.1. in the case of services, the resupply of, or payment of the cost of resupplying, the service; and

30.2. in the case of goods:

(a) the replacement of the goods or the supply of equivalent goods; or
(b) the repair of the goods; or
(c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(d) the payment of the cost of having the goods repaired.

31. The Seller shall not have any liability or responsibility to the Customer for any loss, damage or injury whether arising in contract, tort, equity or otherwise which does not flow directly or naturally (i.e. in the ordinary course of things) from a breach of this Agreement including, in each case consequential loss of business or profits, loss of anticipated savings, loss of business opportunity, loss of data, or loss of goodwill or other loss. The Seller shall only be liable for losses (excluding loss of business or profits) which flow directly from a breach of this Agreement up to a maximum of the total fees and charges paid by the Customer to the Seller in the 12 month period prior to the latest breach, which shall be the total aggregate liability of the Seller where such liability is not otherwise excluded under this Agreement.

32. The Customer acknowledges that no representations were made prior to entering into this Agreement. The Customer agrees that, in entering into this Agreement, it did not rely on any representations (whether written or oral) of any kind or of any person other that those expressly set out in this Agreement. The Customer shall have no remedy in respect of any representation (whether written or oral) made to it on which it relied in entering into this Agreement and the Seller shall have no liability otherwise than pursuant to the express terms of this Agreement. Without limiting the foregoing, the Customer acknowledges that the Seller has not made any representations that the services will achieve any particular purpose or objective.

33. The exclusions in clauses 29, 30, 31, and 32 shall apply to the fullest extent permissible by law, but the Seller does not exclude liability which may not be excluded by law.

Dispute Resolution

34. Where any dispute arises between the parties concerning this Agreement, or the circumstances, representations, or conduct giving rise to the Agreement, no party may commence any court or arbitration proceedings relating to the dispute (other than for injunctive relief) unless that party has complied with the procedures set out in clauses 34 – 37 hereof.

35. The party initiating the dispute (“the first party”) must provide written notice of the dispute to the other party (“the other party”) and nominate in that notice the first party’s representative for the negotiations. The other party must within seven days of receipt of the notice give written notice to the first party naming its representative for the negotiations. Each representative nominated shall have authority to settle or resolve the dispute.

36. If the parties are unable to resolve the dispute by discussion and negotiation within 14 days of receipt of the written notice from the first party, then the parties must immediately refer the dispute to mediation.

37. The mediation must be conducted in accordance with the procedures adopted by the Australian Commercial Disputes Centre. The mediation must be conducted by a mediator at a fee agreed by the parties. Failing agreement between the parties, the mediator shall be selected and his/her fee determined by the President for the time being of the Queensland Law Society.

Miscellaneous

38. Delay is not waiver. No failure or delay by either party in exercising any right, power or remedy under this Agreement, except as specifically provided in this Agreement, will operate as a waiver of any such right, power or remedy.

39. Survival of Agreement. Subject to any provision to the contrary, this Agreement shall enure to the benefit of and be binding upon the parties and their successors, trustees, permitted assigns or receivers but shall not enure to the benefit of any other persons.

40. Severability. If any provisions of this Agreement are held to be invalid or unenforceable, they are to that extent to be deemed omitted and the remaining provisions of this Agreement will remain in full force and effect.

41. Jurisdiction. This Agreement shall be governed by the laws of Queensland and the Commonwealth of Australia, and the parties submit to the exclusive jurisdiction of the courts of Queensland and the Commonwealth of Australia.

42. Entire Agreement. This Agreement (being this document and the accompanying Service Agreement) constitutes the parties’ entire agreement concerning the subject matter hereof, and supersedes all previous communications, representations, understandings and agreements, whether verbal or written.