Terms and Conditions
- ‘Website’ - Any website, software or business systems purchased from the Seller by the Client.
- 'Services' - The access to the Bloomtools software and systems that are hosted on the Server.
- ‘Client’ - The party named in the Client Service Agreement.
- 'Seller’ - Bloomtools Pty Ltd.
- 'Server' - The physical server infrastructure managed by the Seller.
- 'Hosting Period' - The period from when the Client's website or Services go live, until the service is terminated by either the Seller or the Client.
2) Intellectual Property Rights
All intellectual property rights in any design work, documents, drawings and information created by the Seller will remain at all times the property of the Seller. A license is issued to the customer for use of the Website and Services produced for the Hosting Period.
The Website is designed for use on the specific Server environment for which is was created, including e-mail, security, e-commerce and other systems.
Where information is taken from other sources or databases it is the responsibility of the client to ensure that there is an agreement for supply of this information with the owner of that information.
3) Limitation Of Liability
In no event will the Seller be liable to the client for any indirect, incidental or consequential damages arising out of Services provided under any agreement, even if the Seller has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to the Client.
The Seller’s liability to the Client for actual damages for any cause whatsoever, regardless of the form of the action, will be strictly limited to 100% of the Fees paid for the prior 12 months. (or down for the time period down)
4) Termination of services
4. 1) The service may be terminated or suspended by the Seller at any time where:
a. The Client is in breach of any of the conditions of this agreement
b. The Client becomes insolvent
c. Invoices are more than 30 days overdue
The Client may terminate the Services by giving the Seller 30 days written notice.
5) Force Majeure
Neither party shall be liable to the other if its performance of its obligations under any agreement is prevented or hindered due to any circumstances outside of its control. This does not include the obligation for the Client to pay the Seller for the Services Rendered.
Should any part of any agreement, for any reason, be declared invalid by a court of competent jurisdiction, such determination shall not affect the validity of any remaining portion and such remaining portion shall remain in full force and effect. These Terms and Conditions of service are governed by and construed in accordance with the laws of Australia and the parties submit to the exclusive jurisdictions of the courts of Australia. These Terms and Conditions shall be binding to the benefit of each party and their respective heirs, successors and assigns.
11.1) This Agreement is governed by the laws of the State of Queensland, Australia, and each of the parties irrevocably submits to the jurisdiction of the Courts of Queensland, Australia.
11.2) The Client's quotation, [X], and this Service Agreement forms The Seller's entire understanding of the offer. Anything else discussed or represented previously is not included in the price or the terms of this agreement.
7) Data Protection Act
Any data collected and transmitted on, via the Website or the Services is the sole ownership of the Client and as such the Client is responsible for the legal use of that data.
8) Website Hosting/email/secure webpage/virus protection terms
8.1) The Seller specifically excludes any warranty as to the accuracy or quality of information received by any person via the Server and in no event will we be liable for any loss or damage to any data stored on the Server. The Client is responsible for maintaining insurance cover in respect of any loss or damage to data stored on the Server. The Client warrants to the Seller that the Website wll only be used for lawful purposes. In particular, the Client further warrants and undertakse that:
a. The Client will not, nor will the Client authorise or permit any other person to, use the Server in violation of any law or regulation;
b. you will not knowingly or recklessly post, link to or transmit any material:
i. that is unlawful, threatening, abusive, harmful, malicious, defamatory, violent or teaching violence, obscene, pornographic, profane or otherwise objectionable in any way, or
ii. containing a virus or other hostile computer program, or
iii. that shall constitute or encourage a criminal offence, give rise to civil liability or that violates or infringes any trademark, copyright, other intellectual property rights or similar rights of any person under the laws of any jurisdiction
8.2) the Client is responsible for sending mail in accordance with any relevant legislation, including but not limited to the Commonwealth Spam Act (2003) and for sending the same in a secure manner.The Seller will take all reasonable steps to ensure accurate and prompt routing of messages but we will not accept any liability for non-receipt or misrouting or any other failure of email. In the event of deliberate transmission of unsolicited commercial email (UCE), The Seller reserves it right to terminate services without prior notification.
8.3) You warrant, undertake and agree that:
a. the information contained within your Website will comply with all applicable law, and codes of practice governing the use of Websites and related services, including, without limitation, those laws and/or codes of practice governing distance selling and data protection;
b. you will keep secure your passwords and other confidential information relating to your access to the Service and you will 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 information. Notwithstanding such notification you will be liable for any and all uses of your account (and Website) notwithstanding any fraudulent or improper use of your password or any other access to any of the facilities we offer which is not unauthorised use or access by us.
c: Whilst we shall use reasonable endeavours to ensure the integrity and security of the Server, we do not guarantee that the Server will be free from unauthorised users or hackers.
d: We do not warrant whatsoever that our virus protection services will stop every virus from reaching your computer network. We make no warranty that the service will be error free or free from interruption of failure, and the Seller expressly disclaims any express or implied warranty regarding system and/or service availability, accessibility, or performance.
9) Proprietary Information
9.1) The Seller acknowledges that its relationship with its clients is one of high trust and confidence and that in the course of services to the client it will have access to and contact with proprietary Information. The Seller will not, at any time disclose to others or use for its benefit or the benefit of others, any Proprietary Information.
9.2) The Seller’s obligation under this section shall not apply to any information that
a) is or becomes known to the general public under circumstances involving no wrongful act or omission by or attributable to the Seller or other of the terms of this section,
b) is made available to The Seller as a right by any third party, is independently developed by The Seller, or is disclosed under judicial or governmental process,
c) is generally disclosed to third parties by Customer without restriction on such third parties, or
d) is approved for release by written authorisation from Customer.
9.3) At any other time, upon request by Client, The Seller shall promptly deliver to Client all records, files and documentation relating to the business of Client..
10) Fees and Charges
10.1) Payment Terms: Full payment of the contract price upon signing hereof. If the total setup price is over $3000, then 50% is due on signing of the contract, and a balance is due in 30 days from the signing of this contract.
10.2) Fees for ongoing maintenance and/or hosting contracts are payable either yearly in advance or monthly by standing order.
10.3) The Client will be given 30days notice in the event that any ongoing Service fees are changed.
10.4) The Client must also pay for;
a. All Government taxes, duties and levies, imposed on either the Client or the Seller in respect to the Services or any other Services or goods supplied to the Client.
b. Any Bank charges in relation to online merchant accounts or payment gateways.
c. All domain name registrations, or renewals.
10.5) Any payment by credit card will be subject to a surcharge of 1.75%