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[Dashboard] - Terms and Conditions

General

The Agreement, 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.

DEFINITIONS

  • “Agreement” means these terms and conditions herewith.
  • “Client” means the person and business described as the client within the “Client Details” area.
  • “Authorisation” means the acceptance of the proposal using the online portal, or making a payment in accordance with our payment terms;
  • “Business Day” means any day that is not a Saturday, Sunday or a public holiday in Western Australia;
  • “Fees” means the Price together with any Additional Charges incurred by you relating in any way to this Agreement and the Services.
  • “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.
  • “Price” means the fees outlined by Digital Monopoly as described in the “Payment Schedule” area.
  • “You” and “Your” means the Client named within the “Client Details” area.
  • “Our”, “Us”, “Digital Monopoly” and “We” means the “Supplier” Digital Monopoly Pty Ltd, ACN 131 306 155 and associated brands and businesses.
  • “Notice of completion” means a notice in writing, given by the Digital Monopoly to the Client advising that the goods or services subject of the Contract have been provided completed by the Supplier.

TERMS OF THE AGREEMENT

OFFER

  • You are engaging Digital Monopoly to provide the Services as defined in the “Contract”.
  • To accept our offer to provide the Services you must accept the offer of Digital Monopoly using the online acceptance system and pay either the agreed Deposit / Initial Payment or agree to a payment schedule (either act is considered “Acceptance”).
  • If Acceptance does not take place within 28 days from the date the document is provided to you, then our offer to provide the Services will expire without further notice to you. This may be extended.

PRICE

  • All pricing is in AUD.
  • You agree to pay Digital Monopoly the Price for the Services in accordance with the Contract
  • The Supplier may, at the cost of the Client, engage the services of a debt recovery agency to assist it, if payment is more then 7 days late.
  • Digital Monopoly 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.
  • The Client agrees that there is no cooling off period and any monies debited or received are non-refundable
  • In the event that Digital Monopoly cannot substantiate the reason for the drawing, you will receive a refund of the drawing amount to the account the money was originally debited from.

ADDITIONAL CHANGES

  • Subject to Clause 5, all work requested by you and undertaken by Digital Monopoly in addition to the Services will incur charges additional to the Price 
(“Additional Charges”).
  • As at the date of this Agreement, the Additional Charges are $125 / hour + GST;
  • Minimum charge is half an 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 addition 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 for additional services as specified in the Scope of Works.

INDEMNITY

  • You hereby unconditionally and irrevocably agree to indemnify and keep indemnified Digital Monopoly, its officers, employees 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, the 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 Digital Monopoly of this 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.

LIMITATION OF LIABILITY

  • To the full extent permitted by law, Digital Monopoly 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, Digital Monopoly excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement.
  • Digital Monopoly‘s total aggregate liability for all claims relating to this Agreement is limited to 50% of the Price and any Additional Charges incurred by you.
  • Each party’s liability for any claim relating to this 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 maejure 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, Digital Monopoly limits its liability in respect of any claim to, at Digital Monopoly’s option:
  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 Digital Monopoly (without discount) if it supplied those goods to an unrelated third party; or
  • part payment of the sum chargeable by Digital Monopoly (without discount) if it repaired those goods for an unrelated third party, and
  1. in the case of services:
  • the supply of the services again; or
  • part payment of the sum chargeable by Digital Monopoly (without discount) if it supplied those services to an unrelated third party.

INTELLECTUAL PROPERTY

  • You authorise Digital Monopoly to display your Services in its portfolio, including but not limited to the portfolio displayed on http://www.digitalmonopoly.com.au our partner websites including http://www.perth-web-design.com.au, and media releases.
  • You also agree for a Digital Monopoly or our partners logo to be placed on the footer of your website and hyperlinked to the Digital Monopoly website with a “Do Follow” tag.

BREACH AND TERMINATION

  • You will breach this Agreement upon:
  1. failure to have provided content as required within 4 weeks of signing this agreement;
  2. failure to have content uploaded as required in the Scope;
  3. Contravention of your obligations pursuant to clauses 7, 8 or 10;
  4. termination of the Hosting.
  • Digital Monopoly may terminate this Agreement upon the occurrence of any of the events described in clause 12.1, where you have failed to remedy the 
breach within 14 days of written notice.
  • In addition to clauses 12.1 and 12.2, 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:
  1. a material breach of this Agreement which is not remediable or if the other party has not remedied within 14 days of written notice;
  2. an insolvency event occurs, other than an internal reconstruction with notice to the other party.
  • Upon termination:
  1. the parties are immediately released from their obligations under this Agreement except those obligations contained in clauses 5, 6, 7, 8 and 10 and any 
other obligations which by their nature survive termination;
  2. each party retains the claims it may have against the other;
  3. you must immediately pay any outstanding Fees.

NOTICES

  • The parties’ contact details for notices under this Agreement are as contained in the Authorisation or as otherwise notified by one party to another in 
writing from time to time.
  • All notices must be in writing and can be given by:
  1. hand delivery between the hours of 9am and 4.30pm Australian Western Standard Time;
  2. registered post.
  • A notice is deemed to be given and received:
  1. if delivered in accordance with clause 13.2.1 on the next Business Day after delivery;
  2. if sent in accordance with clause 13.2.2, in 5 Business Days after the day of posting;
  • A Notice of Completion will be issued upon achieving a milestone detailed and the relevant amount is due within 7 days.
  • The Client will inspect the goods and services provided by the Supplier within 7 days of receipt of a Notice of Completion and must within that period: (a) give the Supplier written notice of any matter by virtue of which the Client alleges that the goods or services are not in accordance with the Contract; and (b) Make payment of the Balance of the price. The Supplier shall have no obligation to rectify or replace any goods or services not in accordance with the Contract where notice is not given by the Client within seven days after the date of provision.

GENERAL PROVISIONS

  • No party may assign or otherwise deal in any way with its rights under this Agreement without the prior written consent of the other party.
  • Unless explicitly stated, time is not of the essence and the Services will be provided within a reasonable time frame as defined in term 16 of the definitions 
above.
  • Nothing in this 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 this Agreement and the events contemplated by it.
  • This 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.
  • This Agreement may only be amended in writing signed by all the parties.
  • Any rights under this Agreement may not be waived or varied except in writing signed by the party to be bound.
  • 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. 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 this 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 this Agreement by written notice.
  • 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 Western Australia governs this Agreement and each party submits to the jurisdiction of the courts of Western Australia.

Cancellation of any Direct Debit Authority does not affect your liability to pay the fees in full under the contract.

 


 

Web Design

DEFINITIONS

  • “Bug” means any lack of function in the Services that is the direct result of a coding or design error by Digital Monopoly;
  • “Training” means the instruction of 1 person in the operation of the Services at PWD offices, at a agreed time and date.
  • “Website” means your website designed, built and hosted pursuant to this Agreement.
  • “Scope” means the document entitled “Scope” provided by Digital Monopoly to the Client and which describes the Services Digital Monopoly 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.

TERMS OF THE AGREEMENT

THE SERVICES

  • Digital Monopoly will produce the services to the specifications contained in the Scope (herein referred to as “the Services”) which include:
  1. Graphic design;
  2. Website Development;
  3. Training;
  4. Consultancy.

NOTICES

  • Digital Monopoly 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.

BUGS

  • Digital Monopoly will repair free of charge any Bugs of which Digital Monopoly receives written notice up until the expiration of 90 days from the date of activation of your Services, being live.
  • Digital Monopoly 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.

ADDITIONAL CHANGES

  • Subject to clause 5, all work requested by you and undertaken by Digital Monopoly in addition to the Services will incur charges additional to the Price 
(“Additional Charges”).
  • As at the date of this Agreement, the Additional Charges are $125 / hour + GST;
  • Minimum charge is half an hour;
  • Except for agreed contract value requested 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 addition 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 for additional services as specified in the Scope of Works.

WARRANTIES

  • Each party warrants that:
  1. the execution and delivery of this Agreement has been properly authorised;
  2. it has full corporate power to execute, deliver and perform its obligations under this Agreement;
  3. this Agreement constitutes a legal, valid and binding obligation of it enforceable in accordance with its terms by appropriate legal remedy;
  4. this 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;
  5. 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 this Agreement.
  • In addition to the warranties in clause 8.1, Digital Monopoly warrants that:
  1. it will exercise reasonable skill, care and attention in providing the Services;
  2. the Services will not contain any viruses as at the date of activation;
  3. the Services will be compatible with Internet Explorer versions 7 to 8 and the latest versions of Mozilla Firefox, Google Chrome and Safari.
  4. 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 this 
Agreement will not infringe the right of any party and will not breach any applicable law.
  • In addition to the warranties in clause 8.1, you warrant that any material which you cause to be published or displayed upon your Website will not contain 
any illegal or unethical material or activity.
  • That you own copyright or have been granted copyright for all, text, images and materials.

INTELLECTUAL PROPERTY

Subject to clause 11.2 and subject to payment of the Price, the Intellectual Property shall be vested in you and Digital Monopoly thereupon assigns the 
Intellectual Property to you.

 


 

Search Engine Optimisation

  • The Supplier may cancel or suspend the performance of its obligations under the Contract (without any liability to the Client) if at any time the Client defaults in respect of any of its payment obligations.
  • The website must be hosted with Digital Monopoly Pty Ltd or with an approved hosting provider as specified by the supplier.
  • The client agrees not to make any changes to the website or settings within Google Webmaster Tools without written confirmation from the supplier.
  • The client agrees to approve any requested onsite SEO changes to the website, as recommended by the supplier only.
  • The client agrees not to engage in any other SEO practices with a third party without written consent from the supplier.
  • The client agrees to respond in a timely manner, generally within 5 working days.
  • The Client agrees not to cancel any Direct Debit Authority unless and until it has paid to the Supplier in full all amounts due and payable to the Supplier under the Contract.
  • Cancellation of any Direct Debit Authority does not affect your liability to pay the fees in full under the contract.

 


 

Adwords

  • For the cancellation of Adwords services, the client must provide 30 days written notice &
  • 4 months minimum

 


 

Hosting

  • “Hosting” means 12 months’ hosting by Digital Monopoly of the Services.
  • The 12 months of the Hosting is calculated from the date of Acceptance.
  • You may discontinue the Hosting at any time. To discontinue the Hosting does not affect your liability to pay the Fees.
  • If you host your services elsewhere, Digital Monopoly will not warrant or support the services regardless the date of activation, you will have to resolve any issues with your new hosting provider.
  • Digital Monopoly will not under any circumstances provide FTP or cPanel access to websites hosted on their server.
  • Your CMS access level will have ‘editor’ status
  • If you wish to move your website from Digital Monopoly’s hosting environment, a back up of the website will be provided to you in electronic format, such as USB, Disc or Downloadable link.
  • It is the clients responsibility to provide notice to Technical Support and the Accounts Department once the site has successfully been moved to your new hosting environment. Until the notice has been provided to Technical Support and the Accounts Department, the fees for hosting will still be applicable.
    [email protected]
    [email protected]

 


 

Direct Debit

Digital Monopoly Pty Ltd’s Commitment to the Client

This document outlines our service commitment to you, in respect of the Direct Debit Request (DDR) arrangements made between Digital Monopoly Pty Ltd, (Direct Debit User ID: XXXXXXX) (“the Supplier”) and you (“the Client”). It sets out your rights, our commitment to you and your responsibilities to us together with where you should go for assistance.

Digital Monopoly Pty Ltd will keep your information about your nominated account at the financial institution private and confidential unless this information is required for the following reasons:

  • For our financial institution to initiate the drawing of your nominated account.
  • For our financial institution in relation to a dispute.
  • As required by law.

Digital Monopoly Pty Ltd, will keep a record of the Direct Debit Authorisation for 7 years from the last Direct Debit date, in accordance with APCA’s policies.

Initial Terms of the Arrangement

You hereby authorise Digital Monopoly Pty Ltd ACN 131 306 155, (Direct Debit User ID: XXXXXXX) to make periodic debits for Digital Services as indicated on the attached Direct Debit Request.

Drawing Arrangement

You acknowledge that the debit amount will be debited from your account according to the terms and conditions of the agreement with the Business and the terms and conditions of the Direct Debit Request (and specifically the Debit Arrangement and the Fees/Charges detailed in the Direct Debit Request) and this DDR Service Agreement.

You authorise the first drawing under this Debit Arrangement will occur on the day nominated under the Direct Debit Request.

You acknowledge that there may be a delay in processing the initial debit and those thereafter if:

  • there is a public or bank holiday on the day of the debit, or any day after the debit date;
  • a payment request is received by Digital Monopoly Pty Ltd on a day that is not a banking business day in Western Australia;
  • a payment request is received after normal Digital Monopoly Pty Ltd cut off times, being 3:00pm Western Australia time, Monday to Friday.

Any payments that fall due on any of the above will be processed on the next possible business day.

Changes to the Arrangement or Initial Terms

You acknowledge that Digital Monopoly Pty Ltd is to provide at least 14 days notice via email if it proposes to vary the initial terms of the arrangement are made. This notice will state any changes to the amount, frequency, next drawing date and any other changes to the initial terms.

If the Client wishes to discuss any changes to the initial terms, please contact our Accounts department on 1300 224 806 or email [email protected]

You acknowledge that you will contact the Business at least 7 working days prior to the next scheduled drawing date, if you wish to cancel, suspend, alter or defer any of the debit arrangements. You acknowledge that any request by them to stop or cancel the debit arrangements will be subject to the terms and conditions of the contract or at the discretion of Digital Monopoly Pty Ltd.

If the Client wants to make changes to the drawing arrangements, contact the Accounts Department on 1300 224 806 or email [email protected]

To cancel the Direct Debit Authority, the online Cancellation Form, found within your personalised Dashboard, must be submitted. The Accounts Department will refer you here, however they will be able to assist with providing further information. The cancellation will be subject to approval by Digital Monopoly. Cancellation of any Direct Debit Authority does not affect your liability to pay the fees in full under the contract.

Disputes

You acknowledge that any disputed debit payments will be directed to the Accounts Department on 1300 224 806 or email [email protected]

The Accounts Department at Digital Monopoly Pty Ltd will endeavor to resolve the matter directly with you & provide evidence to support the drawing.

If you do not receive a satisfactory response from Digital Monopoly Pty Ltd to your dispute, you agree to contact your financial institution.

The Financial Institution will respond with an answer:

  • within 5 business days (for claims lodged within 12 months of the disputed drawing); or
  • within 30 business days (for claims lodged more than 12 months after the disputed drawing)

(Note: Your financial institution will ask you to contact us to resolve your disputed drawing prior to involving them.)

Responsibilities of the Client

You acknowledge that bank account and/or credit card details have been verified against a recent bank statement to ensure accuracy of the details provided and You will contact your financial institution if you are uncertain of the accuracy of these details.

You acknowledge that is your responsibility to ensure that there are sufficient cleared funds in the nominated account by the due date to enable the direct debit to be honoured on the debit date. Direct debits normally occur overnight, however transactions can take up to three (3) business days depending on the financial institution.

Accordingly, You acknowledge and agree that sufficient funds will remain in the nominated account until the direct debit amount has been debited from the account and that if there are insufficient funds available, You agree that Digital Monopoly Pty Ltd will not be held responsible for any fees and charges that may be charged by either your financial institution or ours.

You acknowledge and agree it is your responsibility to ensure your nominated accounts can accept direct debits through the Bulk Electronic Clearing System (BECS). You acknowledge and agree to advise Digital Monopoly Pty Ltd if the nominated account is transferred or closed. You agree to contact your Financial Institution if you need to confirm these points.

You acknowledge that if a debit is returned by your financial institution as unpaid, a failed payment fee is payable by you to Digital Monopoly Pty Ltd. You will also be responsible for any fees and charges applied by your financial institution for each unsuccessful debit attempt together with any collection fees, including but not limited to any solicitor fees and/or collection agent fee as may be incurred by Digital Monopoly Pty Ltd.

You authorise Digital Monopoly Pty Ltd to attempt to re-process any unsuccessful payments after 3 business days. If the payment remains unsuccessful after 14 days, You authorize Digital Monopoly Pty Ltd to suspend all services, pending payment.

 


 

Cancellations

  • Cancellation Requests will only be acknowledged by Digital Monopoly if submitted using the online Cancellation Form, found within the clients personalized Dashboard.
  • Cancellation Requests will not be acknowledged if submitted by phone or email.
  • Cancellation Requests must be authorised by the Managing Director of the Supplier or an authorised agent.
  • Cancellation of the Direct Debit Authority does not affect your liability to pay the fees in full under the contract and will require approval by authorised agents of the Supplier.

 

Privacy Policy

 

DEFINITIONS

“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 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 party.

Without limiting the foregoing, Confidential Information includes the terms of this Agreement and the contents of the Scope.

CONFIDENTIALITY

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 this Agreement 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.