Terms & Conditions
These Terms & Conditions, as varied from time to time, applies to all sales of goods and the provision of all services by the Supplier to the Client pursuant to the agreement, together with any non-excludable conditions and warranties expressed by law, constitutes the entire agreement between the parties.
- “Agreement” means these terms and conditions herewith.
- “Client” means the person and/or business described as the client within the “Client Details” area of the order form, proposal, Contract.
- “Authorisation” means the acceptance of the proposal using the online portal, making a payment or signing our paperwork/contract.
- “Business Day” means any day that is not a Saturday, Sunday or a public holiday in Victoria.
- “Fees” means the Price together with any Additional Charges incurred by you relating in any way to this Agreement and the Services.
- “Bug” means any lack of function in the Services that is the direct result of a coding or design error by XUGAR.
- “Training” means the instruction of 1 person in the operation of the Services at XUGAR offices, at an agreed time and date.
- “Website” means your website designed, built and hosted pursuant to this Agreement.
- “Scope” means the document entitled “Scope” provided by XUGAR to the Client and which describes the Services XUGAR offers to perform for the Client pursuant to this Agreement.
- A “reasonable time frame” is within 12 months however shall be extended by client requests, amends or delays.
- “Intellectual Property” means the intellectual property attaching to the Services including copyright, patents, trademarks, design rights, domain names whether registrable or not and whether registered or not.
- “Confidential Information” means all the information provided by one party to the other in connection with this Agreement where such information is identified as confidential or ought to reasonably be considered to be confidential based on its context, nature or the manner of its disclosure, but excluding:
- Information that is in the public domain other than by a breach of this Agreement;
- and Information developed independently by a third party.
- Without limiting the foregoing, Confidential Information includes the terms of this Agreement and the contents of the Scope.
- “Price” means the fees outlined by XUGAR. “You” and “Your” means the Client named within the “Client Details” area.
- “Our”, “Us”, “1 Being” and “We” means the “Supplier” 1Being Pty Ltd, ACN 619 607 448 and associated brands and businesses.
- “Notice of completion” means a notice in writing, given by the XUGAR to the Client advising that the goods or services subject of the Contract have been provided completed by the Supplier.
You are engaging XUGAR to provide the Services as defined in the “Authorisation Agreement”. To accept our offer to provide the Services, you must accept the offer of XUGAR using the online acceptance system or sign our paperwork or pay either the agreed Deposit / Initial Payment or agree to a payment schedule (any of these acts, individually or combined is considered “Acceptance”). If Acceptance does not take place within 28 days from the date the Offer is provided to you, then our offer to provide the Services will expire without further notice to you.
This may be extended by mutual agreement. Services XUGAR will produce the chosen services to the specifications contained in the Scope (herein referred to as “the Services”) our services offered include:
- Graphic Design / Web Design;
- Website Development;
- Search Engine Optimisation;
- Content Writing;
- iPhone App Design and Development;
- Google Adwords / PPC Services Conversion Tracking;
- Domain Name Acquisition;
- Technical Support;
- Conversion Tracking;
- CRM Customisation;
- CRM/SAAS Consultancy;
- Web Application Development;
- Custom Development;
- Omnichannel Integration;
- Third Party Integration;
- Social Media Marketing;
- Social Media Consultation.
You agree to pay XUGAR the Price for the Services in accordance with the Authorisation Agreement. Xugar may, at the cost of the Client, engage the services of a debt recovery agency to assist it, if payment is more than 15 days late. The engagement of a debt recovery agency may result in your credit file being updated, having a negative impact on your credit history. XUGAR is retained to undertake the Services exclusively. No part of the Services may be undertaken by you or by any third party instructed by you.
4. Breach & Termination
You will breach this Agreement upon:
- Failure to have provided content as required within 4 weeks of signing this agreement;
- Contravention of your obligations pursuant to Warranty Indemnity & Confidentiality terms previously listed;
- Termination of the Hosting;
- Being unresponsive to our communication;
- Failure to conduct yourself in a professional manner;
- Being rude or aggressive towards the Supplier;
- Referring to any of our companies, brands, staff / agents on social media, forums, reviews or websites. XUGAR may terminate this Agreement upon the occurrence of any of the events described immediately above, where you have failed to remedy the breach within 14 days of notice. In addition to these clauses, any party may terminate this Agreement by written notice to the other party if any of the following events has occurred in respect to the other party:
- A material breach of this Agreement which is not remediable or if the other party has not remedied within 14 days of written notice;
- An insolvency event occurs, other than an internal reconstruction with notice to the other party.
5. Upon termination:
The parties are immediately released from their obligations under this Agreement except those obligations contained within the Price, Additional Charges, Warranties, Intellectual Property & Indemnity clauses and any other obligations which by their nature survive termination within their contractual period;
- Each party retains the claims it may have against the other;
- You must immediately pay any outstanding Fees.
6. General Provisions
In regards to the production of the chosen Services, Time is not of the essence. The Services will be provided within a reasonable time frame as defined above. Nothing in the Authorisation Agreement creates any relationship of partnership or agency between the parties. If a provision is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions. Each party must at its own expense do everything reasonably necessary to give full effect to the Agreement and the events contemplated by it.
The Agreement and the Scope together form the entire agreement between the parties about its subject matter and supersedes all other representations, arrangements or agreements. Except as expressly set out in this Agreement or the Scope, no party has relied on any representation made by or on behalf of the other. Unless otherwise expressly stated in the Contract, no waiver or relaxation in whole or in part of any of the terms and conditions of the Contract will be binding on the Supplier unless in writing and signed on by a Director of the Supplier.
Any such waiver or relaxation shall be limited to the term or condition and occasion in question. A party will not be responsible for a failure to comply with its obligations under the Agreement to the extent that its failure is caused by an event beyond the control of that party (“Force Majeure”) provided that the party so affected keeps the other party closely informed and uses reasonable endeavours to rectify the situation. Without limiting any other right to terminate under this Agreement, if Force Majeure affects a party’s performance under this Agreement for a period of more than 30 consecutive days, the other party may immediately terminate the Agreement by written notice.
All recurring services such as Monthly Website Package, SEO, Social Media & PPC will continue after the initial term on a month by month basis unless cancelled by the client in accordance with our standard terms and conditions & those Terms & Conditions outlined on the cancellation form. Clients must provide a minimum of 30 days’ notice in writing to email@example.com & the other email addresses listed on the cancellation form.
Non-payment of invoices can result in all services with XUGAR being suspended until the account is paid up to date. This includes the suspension of website hosting for non-payment of web design, online marketing & any other services.
Any action or thing that falls due to be done on a day that is not a Business Day will fall due on the next Business Day. The law of Victoria governs this Agreement and each party submits to the jurisdiction of the courts of Victoria, Australia. The Client agrees that there is no cooling off period and any monies debited or received are non-refundable. Cancellation of any Direct Debit Authority does not affect your liability to pay the fees in full under the contract.
A party must not, without the prior written consent of the other party, use or disclose the other party’s Confidential Information unless expressly permitted by disclosing party’s managing director in writing or required to do so by law or regulatory authority. Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party’s Confidential Information.
A party may:
- use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement;
- and disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for the purposes related to this Agreement but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.
8. Additional Charges
Subject to the Price, all work requested by you and undertaken by XUGAR in addition to the Services will incur charges additional to the Price (“Additional Charges”).
- As at the date of the Agreement, the Additional Charges are $180 / hour + GST;
- Minimum charge is 1 hour;
- Except for agreed and quoted work. Where the Supplier, at the request of the Client, provides services in addition to those specified in the Scope of Works, and no Price for those additional services has been agreed to by the parties in writing signed by them, the Supplier’s fee for those additional services shall be the number of hours (or part thereof) spent by each employee of the Supplier in providing those services multiplied by the Supplier’s hourly rate.
9. Intellectual Property
You authorise XUGAR to display your Services in its portfolio, including but not limited to the portfolio displayed on https://www.xugar.com.au, any of our partner websites, and media releases. You also agree for a XUGAR or our partner’s logo to be placed on the footer of your website and hyperlinked to any of our websites with a “Do Follow” tag. Subject to the full payment of the Price, the Intellectual Property shall be vested in you and XUGAR thereupon assigns the Intellectual Property to you.
You hereby unconditionally and irrevocably agree to indemnify and keep indemnified XUGAR, its officers, employees, contractors and agents against any and all actions, claims, demands, losses, liabilities or costs (including legal costs) that arise, or result from, or are connected in any way with the Services XUGAR offers or Hosting, including but not limited to the sale of any product or service via your Website, except to the extent to which it arises out of any breach by XUGAR of the Agreement.
If the Client orders goods or services in its capacity as trustee of a trust, the Client warrants that it has full power and authority to accept goods and/or services under the Contract for the benefit of the trust, warrants that its right of indemnity against the trust property is unrestricted and will not be adversely affected by the Contract, agrees that it will be bound by the Contract both personally and in its capacity as trustee of the trust, acknowledges that its liability for indebtedness incurred while a trustee will apply even if it ceases to be trustee of the trust for any reason; and acknowledges that its liability will not be limited to the assets of the trust.
11. Limitation of Liability
XUGAR excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages or loss. To the full extent permitted by law, XUGAR excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement. To the full extent permitted by law, XUGAR excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement.
XUGAR‘s total aggregate liability for all claims relating to the Agreement is limited to 35% of the Price and any Additional Charges incurred by you. Each party’s liability for any claim relating to the Agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.
The Supplier will not be liable to the Client for any loss or damage of any kind sustained by the Client as a consequence of any breach of the Supplier’s obligations pursuant to the Contract. If failure to supply is caused by matters beyond the Supplier’s reasonable control including (without limitation) acts of God, acts of any government, war or other hostility, national or international disaster, the elements, fire, explosion, power failure, equipment failure, strikes, lockouts, inability to obtain necessary supplies and any other force majeure occurrence.
This Agreement is to be read subject to any legislation, which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions or obligations. If such legislation applies, to the extent possible, XUGAR limits its liability in respect of any claim to, at XUGAR’s option:
11.1. In the case of goods:
- The replacement of the goods or the supply of equivalent goods;
- The repair of the goods;
- Part payment of the sum chargeable by XUGAR (without discount) if it supplied those goods to an unrelated third party;
- or Part payment of the sum chargeable by XUGAR (without discount) if it repaired those goods for an unrelated third party, and
11.2. In the case of services:
- The supply of the services again;
- or Part payment of the sum chargeable by XUGAR (without discount) if it supplied those services to an unrelated third party.
Each party warrants that:
- The execution and delivery of the Agreement has been properly authorised;
- It has full corporate power to execute, deliver and perform its obligations under the Agreement;
- The Agreement constitutes a legal, valid and binding obligation of it enforceable in accordance with its terms by appropriate legal remedy;
- The Agreement does not conflict with or result in the breach of or default under any provision of its constitution, or any material term or provision of any law or regulation to which it is a party or subject or by which it is bound;
- There are no actions, claims, proceedings or investigations pending or threatened against it or by it of which it is aware and which may have a material effect on the subject matter of the Agreement.
In addition to the warranties above, XUGAR warrants that: It will exercise reasonable skill, care and attention in providing the Services;
- The Services will not contain any viruses as at the date of activation;
- The Services will be compatible with Internet Explorer 9 and above, and the latest versions of Mozilla Firefox, Google Chrome and Safari.
- Other than in relation to material included in the Services by you or any third party from time to time, any use of the Services by you in accordance with the Agreement will not infringe the right of any party and will not breach any applicable law.
- In addition, you warrant that any material which you cause to be published, displayed or contained with the provided Services will not contain any illegal or unethical material or activity. You warrant that you own the copyright or have been granted copyright for all, text, images and materials used.
13. Business Relationship
The relationship between the Client and XUGAR is important to ensure that the Client’s work is completed efficiently and to the Client’s satisfaction, however, if the relationship breaks down for whatever reason XUGAR has the right to immediately cease all work on behalf of the Client without notice and without any liability whatsoever. Having received notice of the breakdown in the business relationship the client must immediately pay all outstanding monies due to XUGAR at which point the Client will receive full title to the work completed.
Examples of when a relationship can breakdown include but are not limited to:
- Abusive and Insulting Language.
- Unrealistic Demands.
- Breakdown in Communication.
- Poor Client Co-operation.
14. Retention of Title
XUGAR retains title to all work carried out on behalf of the Client until paid for in full.
15. Web Design & Development Terms & Conditions
“Bug” means any lack of function in the Services that is the direct result of a coding or design error by XUGAR;
“Training” means the instruction of 1 person in the operation of the Services at XUGAR offices, at an agreed time and date.
“Website” means your website designed, built and hosted pursuant to this Agreement.
“Scope” means the document entitled “Scope” provided by XUGAR to the Client and which describes the Services XUGAR offers to perform for the Client pursuant to this Agreement.
A “reasonable time frame” is within 12 months however shall be extended by client requests, amends or delays.
XUGAR will endeavour to rectify any Bugs of which XUGAR receives written notice of, up until the expiration of 90 days from the date of activation of your Services. Tweaks, amends or improvements in usability, functionality or design are not considered a Bug, they are considered outside the original Scope and as such are billable at the standard hourly rate. XUGAR does not support or warrant any bugs derived from obsolete browsers such as Internet Explorer 6 and versions of other browsers that are more than two versions old. XUGAR shall do a reasonable level of testing of your Services, however the Client is responsible to thoroughly test your Services for any Bugs during the warranty period.
Provision of Content and Communication
XUGAR will always endeavour to complete the development of the client website efficiently and within a reasonable time frame, however, this relies on the co-operation of the client to provide content in a timely manner. The client agrees to respond to any form of communication from XUGAR within two working days or 48 hours.
- The client website will be archived under the following circumstances:
- When a client is non-responsive to any form of communication from XUGAR including, but not limited to, telephone and email communication for 15 working days or more.
- When the client does not provide website content for 15 working days or more e.g. text and images.
- When the development process lasts longer than 20 working days due to the slow provision of content from the client or lack of responses to telephone and email communication.
- A re-activation charge of $150 plus GST must be paid prior to the website being made live once more. In the above circumstances the client website will be archived without notice and an archive charge of $395 plus GST levied which will fall due immediately upon receipt of invoice. There will then be a monthly archive charge of $50 plus GST.
15.3 Mobile Responsive, Devices and Screen Resolution
XUGAR does not guarantee every single resolution sequence and ‘dragging and dropping’ the browser is not a sign of correct screen re-sizing. All websites are designed to work to the follow resolutions and internet browsers:
- Screen Resolutions iPhone: Latest supported versions.
- Samsung Galaxy: Latest supported versions.
- Tablet: 1024 x 768 pixels.
- Laptop: 1366 x 768 pixels.
- Desktop: 1680 x 1050 pixels.
XUGAR no longer caters to Internet Explorer. Further resolutions or devices requested by the clients would be billed as additional development time based on the hourly rate.
XUGAR will provide notices in the form of an invoice, when milestones are achieved. Once the invoice in received, payment will be due within the stated period, generally 7 days Notices will be provided for “Deposit”, “Design Sign Off” and “Supply of Development Link”, or as per the contract terms.
17. PPC T&C’s
Comply with all Google AdWords & Bing terms and conditions, which update regularly;
- There is a minimum 4-month term on all campaigns, unless otherwise stated on the contract;
- You will not get direct access to the AdWords portal;
- Monthly Statements / receipts from AdWords & Bing can be sent on request:
- We will provide reports generated via Google Analytics and various 3rd party software linked to the AdWords & Bing accounts;
- Any tracking telephone numbers remain our property.
- After cancellation, you will forfeit any outstanding credit, it shall not be refunded under any circumstances;
- For cancellation of Google AdWords or Bing services we require 30 days’ written notice to firstname.lastname@example.org and all charges are pro rata.
The PPC contract will continue after the initial term on a month by month basis unless cancelled by the client in accordance with our standard terms and conditions & those Terms & Conditions outlined on the cancellation form. Clients must provide a minimum of 30 days’ notice in writing to email@example.com & the other email addresses listed on the cancellation form.
18. SEO Terms & Conditions
We make no guarantee the targeted phrases will move in a positive direction, especially if the targeted website has:
- Engaged in SEO previously;
- Has poor or duplicate content;
- Is on a SEO unfriendly content management system (CMS);
- If we cannot get access to your hosting and or CMS;
- Is suffering from a penalty, either automatic or manual from Google;
- Has an unnatural link profile;
- Is hosted on a slow or blacklisted server.
The standard term of an SEO contract is for 6 months. Any variations to a shorter contract period must be signed off by XUGAR’s management prior to the agreement being signed.
Furthermore, you should be aware that Google continually updates its search algorithm, which may have a negative impact on your rankings at any time, this does not release you from your contract. We will endeavour to rectify any negative losses as quickly as we can but make no guarantees you will recover. In rare instances, we may have to move your website to a new domain to remove a penalty, you have to accept the change if we recommend this action.
18.1 Website Amendments Made by the Client
XUGAR must be notified of any changes that the client proposes to make to the website prior to such changes being made as some amendments may have a negative effect on the ranking of the website within the search engines. Examples of changes that WILL affect the website’s ranking include but are not limited to the following: amendments to Header Title tags, uploading duplicate content, changing navigation and creating links to third party websites. ALL proposed changes by the client to the website must be approved in writing by XUGAR before being actioned. Failing to do so releases XUGAR from any liability in the event that the website’s ranking falls. Clients who make changes without consulting XUGAR do so at their own risk.
SEO campaigns can be suspended for 1 month or 2 months. The client acknowledges their rankings will be affected by a suspension of their service & they take full responsibility for the expected loss of position. The client acknowledges XUGAR will not be responsible for returning their rankings, once the campaign is commenced again. The campaign will be continued with the same level of resources used prior to the suspension.
The SEO contract will continue after the initial term on a month by month basis unless cancelled by the client in accordance with our standard terms and conditions & those Terms & Conditions outlined on the cancellation form. Clients must provide a minimum of 30 days’ notice in writing to firstname.lastname@example.org & the other email addresses listed on the cancellation form.
19. Late Payment Policy
Xugar endeavours to provide excellent service to all our clients. In return, we request all our clients to adhere to the payment terms and pay all the due invoices in time within the due date mentioned on the invoices. If the payment is not made in time additional compounding fees of 5% is added to the invoices on a monthly basis. Xugar may, at the cost of the Client, engage the services of a debt recovery agency to assist it, if payment is more than 15 days late. The engagement of a debt recovery agency may result in your credit file being updated, having a negative impact on your credit history. XUGAR is retained to undertake the Services exclusively. No part of the Services may be undertaken by you or by any third party instructed by you.