OUR SERVICE PROVISION AND OR USE OF SERVICES AGREEMENT
VERSION 2.2 UPDATED 24th MARCH 2021
1.Scope and Purpose
A. This Agreement is the Service Provision and/or Use of Service Agreement, hereafter referred to as the “Agreement”. It explains the terms of service, responsibilities, benefits, restrictions and liabilities You agree to by entering into a service arrangement with Us, or by accessing or using Our services or information provided by Us. As a user of Our website(s) or as a user of Our products and/or services, You enter into the following legally binding agreement.
B. These Terms constitute the entire and only agreement and supersede all prior or contemporaneous agreements, conduct, representations, warranties and understandings.
A. Where this Agreement refers to “We”, “Our”, “Ours” or “Us” it is referring to Splotch Studio, Our affiliates or any respective directors, officers, employees, agents, contributors, third party content providers or licensees involved in service or product provision.
B. Where this Agreement makes reference to “User”, “You”, “Your” and/or “Yourself” it is referring to any and all persons or entities using services provided via Our website or accessing services and/or products provided by Us, including business owners and their representative operators as a direct or indirect result of using Our site(s) or services.
C. Where You use this site or purchase goods or services on the authority of another (e.g. Your employer) You enter this person or enterprise into this Agreement by virtue of that authority granted.
3. Meanings Intended
A. Where the term “Work” is used, it refers only to the final, deliverable service or product, and not any preliminary Work or sketches.
B. Where the term “Designer Tools” is used, it refers to the means and/or tools developed or utilized by Us in performing the services supplied, including without limitation: pre-existing and newly developed software, Web authoring tools, type fonts, and application tools.
C. Legitimate meanings are not altered or invalidated by the headings provided in the Agreement if You misunderstand any meaning or grammatical variants do not alter the intended meaning.
4. Your Acceptance of These Terms
A. Your decision to use Our website, any service or product or make commercial enquiry of Us, indicates Your acceptance of the terms of this Agreement, whether seen or unseen, read or unread, understood or misunderstood as well as the policies mentioned in this Agreement.
B. You agree to observe and comply with any policies in place by a service provider accessed by You through Our network.
C. If You do not agree to these Terms, You should not review information or obtain services or products from Us. If there is an existing arrangement that needs to be cancelled contact Us immediately.
5. Changes To These Terms and Our Policies
A. We reserve the right to modify or remove the terms of this Agreement and Our policies at any time by posting changes online. We will make reasonable efforts to inform You of the changes. Your continued use of Our services is Your indication that You agree to all changes (including those which You may have been unaware of).
6. Jurisdictions and Limitations Notified
A. Subject to any overriding conflict of laws, these terms and Your dealings with Us are governed by the laws of Western Australia. You irrevocably and unconditionally submit to the non-exclusive jurisdiction of courts exercising jurisdiction there and to the conducting of any court proceeding within the geographical confines of Perth, WA.
B. Any provision that is prohibited or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability. That will not invalidate the remaining Terms nor affect the validity or enforceability of that provision in any other jurisdiction.
C. We do not warrant that the content of Our site(s) complies with the laws of Your country or jurisdiction. You accept responsibility for ensuring or confirming compliance with all laws that apply to You.
D. You are responsible for ensuring that Your use of Our services is lawful, does not infringe any third party’s rights and does not breach any standards, content requirements or codes promulgated by any relevant authority (including relevant industry codes of practice).
E. Nothing on this site constitutes an offer to provide products or services in any jurisdiction if to do so would contravene the laws of that jurisdiction.
7. Liability is Limited and Indemnities Apply
A. The disclaimers, liability limitations and indemnities within this Agreement do not exclude rights that by law may not be excluded.
B. We do not make any express or implied representation or warranty about, or shall be liable, in contract, tort (including negligence) or otherwise, for any direct, indirect, special or consequential loss, damages or reliance in connection with any of Our sites, content or any products or services provided by Us.
C. We retain limited liability to You. Our total liability (if any) for loss, damage or reliance shall be limited, at Our election, to re-supply, repair, replacement or supply of equivalent products, services or information, or payment of the cost of doing this.
D. You indemnify Us from all actions, suits, claims, demands, liabilities, costs, expenses, loss and damage (including legal fees on a full indemnity basis) incurred or suffered by You or Us as a direct or indirect consequence of using or attempting to use Our information, products, services or any breach by You or Your agents of the Agreement. We are not responsible for, and expressly disclaim all liability for damages of any kind arising out of use, a reference to, or reliance on any information contained within the site(s), or through use of Our products or services.
E. The limitation and terms explained herein include (but is not restricted to) loss or damage You might suffer as a result of:
i. Reliance on the completeness, accuracy, suitability or currency of information, products or services irrespective of any verifying measures taken by Us (including third party material and advertisements).
ii. Failure of performance, error, omission, interruption, deletion, defect, failure to correct defects, delay in operation or transmission, computer virus or harmful component, loss of data, communication line failure, unlawful third party conduct, or theft, destruction, alteration or unauthorised access to records.
iii. Accessing sites or servers maintained by other organisations through links on Our site(s) or services. Links are provided for convenience only. We do not endorse linked sites nor their products and services and You access them at Your own risk.
iv. The use of credit card or other financial information, failure to complete (or delay in completing) any transaction, or other loss or damage arising from any transaction made or attempted on Your site(s), Our site(s) or via Our procedures.
v. Defamatory, threatening, offensive or unlawful conduct of third parties or Our publication of any materials relating to or constituting such conduct.
vii. The loss of existing rankings or site URL benefits or structures. Please note that while efforts will be made to maintain search engine rankings and/or the continued functionality of external links, we cannot guarantee that either existing rankings or URL links will remain the same or equivalent.
viii. Delays to results. Improvements in website performance may take place quickly but typically require two months to be evidenced.
ix. Fluctuations in website search engine ranking performance of any type, regardless of the specific services you have employed Us for. Changes to the algorithm used by search engine providers are beyond our control, and changes to penalty and other factors can result in loss of position to various degrees. At the time of implementation, We exercise due care and professional awareness, however, it is impossible to anticipate or control how third-party services will respond to strategies in the short term or in the longer-term.
x. Competitor performances that are a result of our services. Unless specifically stated in a trade-restriction arrangement, We do not guarantee to withhold our services from competitors (even though on principle we are usually reluctant to do so). On request, usually for additional fees, and for a limited time, we may provide exclusivity limitations to specified services, however, the impacts of work already performed, or work performed after the agreement period ends may impact on competitor performances.
8. Opinions Given and Variability of Suitability
A. Opinions expressed on or off-site are at times those of relevant contributors. We do not necessarily share those opinions.
B. Where observations or commentary are offered, individual application and relevance may vary significantly dependant upon any particular individual’s circumstances. When You require specific advice for Your individual circumstances, You should consult an expert disclosing all relevant matters. We endeavour to assist in areas where We have the expertise, but do not accept responsibility for commentaries made beyond those required of Us by law and not excludable under the law within Our jurisdiction and this Agreement. Website, as well as other service and product consultations, can cover a broad range of business and related topics and You are responsible for evaluating and acting upon any consultations received.
C. We make no representations as to the currentness, suitability, accuracy, validity or completeness of any information and will not be liable for omissions, errors or delays in this information or any injuries, losses or damages arising from its use or display.
9. Warranties and Exclusion of Implied Warranties
A. To the maximum extent permitted by law, we exclude all warranties by Us that otherwise would be implied in any transactions for the supply by Us of Our site(s), information, products or services (including warranties of satisfactory quality, merchantability and fitness for purpose). All warranties and guarantees offered are express as stated and limited to that clearly stated therein.
B. All warranties and guarantees are offered strictly to those services named within the text of the warranties and/or guarantee and under the terms and provisions stated. There is no implied extension of the warranties and guarantees of one service or product applying to another product or service.
10. Monitoring of and Responses to Non-Compliance
A. We reserve the right to monitor Your compliance with this Agreement by any means and to take action if we deem it necessary.
B. We reserve the right to determine whether Your actions are a breach of any of these terms.
C. We reserve the right to act on any complaint received and will cooperate and assist fully with law enforcement agencies if required.
D. We will report breaches of this policy to appropriate law enforcement agencies where deemed appropriate.
E. We reserve the right to charge fees for problems caused by breaches of this Policy. These charges will be equal to any resulting cost incurred by Us, as calculated by Us and explained to You in writing. You will receive an invoice, with terms of 14 days, payable via Our usual payment facility and method.
11. Continuity of Services, Conditions and Product Availability
A. We do not warrant that We will continue to make Our site(s), services or products available. We reserve the right at any time to stop providing services, to impose or alter fees and/or use alternative products and or services. You should make sure You are aware of the price of any service before You purchase it.
B. We reserve the right at any time to alter information, products or services in such a way as to change the equipment needed by You to access or use the site or any part of it.
12. Use of Subscription and Registered User Services
A. We may offer services not available to non-registered users. Any terms and conditions attaching to the use of such a service are in addition to these terms.
B. If You are a registered user or subscriber to this site or any of Our products or services, You acknowledge and agree that:
i. You are solely responsible for protection and confidentiality of any password or user ID that may be issued to or subscribed for by You from time to time (“Password”);
ii. You will not reveal (or cause to be revealed through any act or omission) Your Password to any other person;
iii. You will immediately notify Us if Your Password is lost or becomes known to any other person;
iv. You are solely responsible for all access to and use of this site via Your Password, whether such access or use is by You or any other person; and
v. Any information, You provide to Us for posting or inclusion in Our online forums, at any time, becomes Our property.
C. Where a registered user or subscriber services is for one user only, You will not let any other person use Your Password or any registered user or subscriber services.
D. We may cancel or discontinue Your use of or access to any subscriber service without liability to refund any fees paid in advance for future services if You have breached these terms.
13. Unacceptable Use of Resources
A. You must not use, attempt to use, or allow the use of Our website, services, products or associated personnel (including staff, agents and contractors) in a way that:
i. Contravenes Commonwealth and/or State laws or is misleading, deceptive or promotes illegal activity.
ii. Supports a cause, industry, enterprise, individual or practice that is harmful to children, their healthy development or parental rights.
iii. Causes unethical, obscene, defamatory, offensive or abusive material to be made known or available.
iv. Contravenes, restricts, endangers the good name of or unfairly impedes Our commercial well-being or reputation.
v. Uses server or other resources such that Our servers, network, or other resources are burdened in a way that other users or Our services, in general, suffer unfairly. This includes any services described as ‘unlimited’.
vi. Facilitates high output emailing; for these purposes We consider more than 100 emails per hour per domain name to be high output emailing action.
vii. Has a spamming effect. This includes messages that are indiscriminate, unsolicited, unwanted, inappropriate, commercial advertising en-masse, adversely impacting on a computer, network or other parties data, accessing anyone else’s system, empowering to third parties to do similar, or that seeks to hide or obscure You as the source of a message or action.
viii. Exploits Our Information Technology or services for the purpose of activities not directly and implicitly related to the operation of Your website (e.g. downloading movies, excessive file transfers etc.). All such uses are unacceptable.
ix. Causes direct streaming/downloading of videos from Your site. A third party dedicated provider such as Vimeo or similar may be used.
x. Impacts negatively upon Our ability to operate.
14. Accounts and Financial Transactions
A. We operate an online and automated billing system.
B. You agree to ensure sufficient funds are available in Your nominated account to meet any account withdrawals made by Us on their scheduled due dates.
C. We reserve the right to commence billing from the commencement of services and in advance of delivery of any final Work.
D. If payment is defaulted or not received, You authorise Us to debit any outstanding funds from Your nominated account without the need for notification at a future date.
E. Where another agent or enterprise is debiting funds pursuant to an arrangement entered into with Us, You also affirm the same rights and undertakings explained in this policy to them.
F. We reserve the right to suspend or terminate any website, service or account, at Our discretion, if payment defaults.
G. We reserve the right to on-sell or otherwise authorise a debt-collection or other authorised agency to collect any amount not paid by You.
H. We reserve the right to inform other providers of Internet, Information Technology or other credit watch monitoring services of ongoing defaults trends or payment-avoiding strategies employed where we deem it is appropriate.
I. We endeavour to work with clients who have financial difficulties to ensure actions such as those listed above do not happen. If You are having difficulties or require a payment plan please contact Us.
J. We reserve the right to issue pro-rata or full refunds, or equivalent credit notes, in appropriate circumstances, at Our own discretion. We offer such actions only in circumstances required by law, or when we determine for some reason to act beyond these requirements. You may have rights under the law. Please retain the proof of your agreement, e.g. your invoice, scope or quote if making enquiries regarding this.
K. We reserve the right to take complete ownership of any or all websites, domain names or other digital intellectual property in the event of a non-payment of invoices for a period of over 6 months. We may release said intellectual property on payment.
L. We reserve the right to charge a late fee on invoices which are unpaid after 30 days of their due date. This late fee will be a percentage of each invoiced amount which is subject to change any time. In circumstances we deem appropriate we may cancel late fees.
15. Revisions, Adaptations and Versions
A. Where design, thematic, visual or any other undefined and/or non-objective matter is to be determined, We reserve the right to cease making revisions, adaptations or versions when We determine, at Our discretion, that We have reasonable and sufficiently delivered on Our service and/or product.
B. Unless specifically stated in a Scope Document, Product Description, Invoice or equivalent project/task defining agreement, the number of revisions you will be entitled to be one. Unless otherwise stated, a single revision will equate to 15 minutes of labour by the appropriate person on Our team, as determined by Us. Revisions or adaptations that are beyond or outside a project’s scope (or reasonable resource parameters as determined by Us) may be billed to You at the currently posted Update labour fee.
C. When You send Us any feedback or suggestions about this site, Our other sites or Our business, You agree that We can use and adapt any ideas, concepts, techniques, words or images contained in the feedback or suggestions for any purpose and without restriction or compensation.
16. Responding to Offers
A. Any offer of service(s) or product(s) made is subject to Your indicating agreement to the offer in a reasonable amount of time, as determined by Us. We reserve the right to revise or withdraw any offer made that is not responded to in a reasonable amount of time.
17. Rights and Limitations Pertaining to Websites and Forums
A. We do not assume any obligation to monitor or censor materials of any site hosted by Us.
B. We reserve the right to host both moderated and unmoderated forums or other web pages to which site users can post materials (“Forums”). We are not responsible for materials posted to Forums by third parties, whether or not We moderate those Forums; materials altered by Us in moderating Forums; or Our removal of, or failure to remove, all or any part of those materials.
C. These terms supplement other rights We might have, such as Our rights in relation to contributors under a Contributor’s agreement or those cited elsewhere in the Agreement. By submitting a contribution to Us for inclusion on site, You agree to be bound by any such Contributor’s agreement.
D. Subject to a separate written agreement, We may elect whether or not to make material available to others under a creative commons license. Typically, comments and forum postings will be available under a creative commons license (but this does not limit Our rights to treat other materials in the same manner).
E. We may add information to any message originated via Our site(s).
F. If We publish material submitted by any third party, the author of that content permits all other users to access, view, store or reproduce the material for their personal, non-commercial use.
G. If We publish material submitted by You, any third party, or Us and the web page indicates that the content of that page is available for dealing under a creative commons license, others are also authorised to deal with the relevant content under the terms of that license.
H. If You submit material to any of Our sites You grant, or warrant that the owner of such material has granted, to Us and Our affiliates, third party content providers and licensors a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, unrestricted and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such materials, or incorporate them in other works, in whole or in part; use the names and images (if any) that You submit with any such material, including names and images identifying You as the author of the material; and exploit all proprietary rights (such as copyright, trademarks and service marks) in any such material, in any form, media or technology now known or later developed, for any purpose, commercial or otherwise (including the promotion of Us or Our objectives).
I. If You submit material to any of Our sites, You consent to Us and any person authorised by Us doing any or all of the above despite all moral and similar rights You may have or later acquire in respect of any such material.
J. If You submit material to any of Our sites, at Our request and expense, You will execute and deliver to Us all such instruments and take such other actions as may be requested by Us to obtain the benefit of and perfect this grant of license and consent.
K. If We publish material submitted by You for publishing, You permit all other users to access, view, store or reproduce the material for their personal, non-commercial use.
L. If You submit material to this site for publication, You permit Us, for any reason, to monitor the content of this site, including chat rooms, electronic bulletin boards, forums and other communications facilities, to determine compliance with these conditions; and edit, refuse to post or remove any material submitted by You or to You.
18. Third-Party Materials and Links
A. You acknowledge that third party materials appearing on this site are not necessarily controlled or monitored by Us and that the views expressed are not necessarily Ours.
B. You acknowledge that outbound links to third party sites have materials that may change or be deleted from time to time. These are beyond Our control, are not monitored by Us, nor necessarily express views that are synonymous with Ours.
C. We do not make or infer any representations, opinions or recommendations about third-party web sites or parties that may be linked to Our web sites other than those clearly stated within Our policies and this Agreement.
19. Pertaining to Content You Submit
A. Where You provide images or content for inclusion in the Work, You accept responsibility for obtaining any relevant releases or licenses required.
B. You agree to release Us, defend Us, and hold Us harmless from and against any claims, damages or liability arising from or related to the use of photographs You supply, including but not limited to any misuse, distortion, blurring, alteration, optical illusion or use in composite form, either intentionally or otherwise, that may occur or be produced in taking, processing, reduction or production of the finished product, its publication or distribution.
C. Other than Our rights to use images or information as explained elsewhere, the Work created becomes Your Intellectual property upon final payment of design and construction phases.
20. Pertaining to Work or Work elements provided by Us.
A. Images may be supplied directly by Us or under license from a third party. You agree to inform Us and seek legal release if You intend to use any such image supplied by Us for a different purpose. There may be no release or fee incurred, but You agree to check with Us to ensure Your use of the image is not in breach of third-party copyright.
B. We may use/display screenshots or reproductions of the Work created as a result of this Agreement. Display locations include (but is not limited to) Our portfolio online or elsewhere. This link may include a hyperlink to Your site. This right to display includes a moral right to display Work in the form that We created it or intended it to be prior to alterations by You.
C. Where Work is displayed (online or elsewhere), You and We agree that when asked, You must properly identify Us as the creator of produced Work. You do not have a proactive duty to display Our name together with Work, but You may not mislead others that Work was created by anyone other than Us.
D. Where Work is changed significantly by You or others, You and We agree that when asked, You must properly identify that though We were the original creator of produced Work, You or others have made changes. Again You do not have a proactive duty to explain this, but You may not seek to mislead others that the Work originally created by Us was not altered by others.
E. Ownership of preliminary Work or sketches pertaining to design is retained by Us.
F. We may incorporate certain Designer Tools into the Work. In the event Designer Tools are incorporated into the Work, We grant You a royalty-free, perpetual, worldwide, non-exclusive license to use the Designer Tools to the extent necessary to use the Work. We retain all other rights in the Designer Tools.
21. Obligations and Disclaimer Concerning Legal Copy Provided.
B. You authorise Us to provide and publish in the Work such copy, in the sample form, prior to vetting by You.
C. We disclaim any liability connected to the use of such copy and recommend the use of appropriate professional legal services to vet or tailor any copy provided so that Your particular circumstances and needs are accommodated.