Terms & Conditions
1. Definitions & Interpretation
“Agreement” means, in respect of any work or proposed work:
(a) these Terms & Conditions; and
(b) either (i) any applicable Proposal; or (ii) any applicable Work Instructions.
“Australian Consumer Law” means:
As the context requires, the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) or as adopted in Western Australia by the Fair Trading Act 2010 (WA).
(a) References to “you”, “your”, “client”, “customer” and similar words in these Terms refer to the individual or entity registering for any Services and agreeing to be bound by these Terms. If you are entering into these Terms on behalf of an entity, you represent and warrant that you have all necessary right, authority and consent to bind such entity to these Terms.
(b) where a Proposal has been accepted in writing, the person or entity named as the Client in the written acceptance; or
(c) where a Proposal has been impliedly accepted, the person or entity to whom the Proposal was addressed; or
(d) where a product and/or service(s) have been ordered for use
Bud Agency a registered business name of Growth Journey Pty Ltd (ACN: 663 183 686) and shall be known in these Terms as “we”, “our”, “us” or “Bud”.
Any document or documents provided by Bud in respect of proposed work.
a. By using these services, you agree to be bound by the Terms and Conditions; you agree to indemnify and hold harmless Bud from any loss, liability, claim, damage and expense arising from or related to your content or use of any services provided by Bud. If you are not satisfied with these Terms and Conditions then you must discontinue the use of our service(s).
b. No advice or information, whether oral or written, obtained by you from Bud, its employees or associates or through their respective websites shall create any warranty not expressly stated in these Terms and Conditions.
c. The parties each individually represent and warrant that each has full power and authority to enter into this Agreement and to perform all of their obligations here without violating the legal or equitable rights of any third party.
i. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable under any present or future law, then that provision will be fully severable. In such instance, this Agreement will be construed and enforced as if the illegal, invalid, or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions of this Agreement will remain in full force and effect.
3. Terms Of Agreement
a. An agreement in respect of any work or proposed work shall constitute the entire agreement between Bud and the client in respect of such work or proposed work and shall supersede any prior written or oral agreements, arrangements or understanding between the parties relating to such work or proposed work.
b. In the event of any inconsistency in an agreement between these Terms & Conditions and a relevant proposal, the terms of the proposal shall prevail to the extent of the inconsistency.
c. In the event of any inconsistency between these Terms & Conditions and any terms of trade or ordering customarily adopted by the client (including the terms of any order form used by the client) these terms & conditions shall prevail.
a. Unless otherwise stated in writing, prices for work or proposed work contained in any proposal or work instructions are exclusive of GST.
b. Prices for work or proposed work contained in any proposal or work instructions shall be taken to be an estimate unless they are stated to be an quotation.
c. Prices contained in quotations are valid for 30 days; however, Bud may amend a quotation prior to acceptance in the event of any increase in the cost of relevant products or services supplied by third parties.
d. Where a work Instruction has been given verbally, Bud will use its best endeavours to produce work product in accordance with that instruction. However, Bud shall not be responsible for any changes required by the client to such work product and such changes shall be deemed to be variations and chargeable as such.
5. Invoicing & Payment
a. Unless otherwise agreed in writing in a relevant proposal or Work Instruction, Bud may issue invoices to the client:
ii. upon the completion of a relevant item of work product; and/or
iii. upon the completion of a milestones outlined.
b. Where any invoiced amount is not paid on or before its due date for payment, interest at the cash rate target specified by the Reserve Bank of Australia from month to month will accrue on the overdue amount. Such accrued interest must be paid by the client to Bud upon discretion by Bud.
c. The client shall be responsible for all legal and collection costs of Bud incurred in relation to overdue invoices.
d. All invoices issued by Bud are payable within 14 days of the invoice, or as indicated by the Due Date specified at the top of the invoice. If payment is not received within this timeframe, Bud can, and will issue reminder notices by way of email communication to you.
e. Once invoices are 7 or more days overdue, Bud may suspend or take action to redact any hosting, domain, email or other services related to your customer account without notice.
f. Once invoices are 30 or more days overdue, Bud may pass on the details of the unpaid invoices to our debt collectors who may act on our behalf. The invoice details passed on will be amended to include any relevant debt collector fees as determined by our debt collection agency. These fees will ultimately be added to the outstanding amount on your account and be requested in full by our debt collector.
g. Failure to pay our debt collection agency may result in action being taken against your credit rating by them. Growth Journey Pty Ltd will not be held liable for any implications that this credit rating has on your business or person.
6. Service & Marketing Emails
a. The Client agrees to receive Service, Marketing and Promotional emails from Bud to the email address registered to their account.
b. Emails from Bud to the Client in regard to a Service, such as invoicing and other notices, will be sent from email@example.com and should always be read by the Client as they will always contain important information.
d. Marketing and Promotional emails may be opted out of, at the time of receiving the email, via the footer link within the email campaign.
7. Work Performed & Service(s) Provided
a. Delivery of work product shall be made in accordance with any relevant provision in any proposal or work instruction or, if there is no such provision, within a reasonable time.
b. Bud shall not be responsible for delivery delays resulting from variations or payment delays by the client including delays by the Client in response to communications sent by Bud for further information or material related to the product.
c. While Bud will endeavour to provide continuous availability of all services to the client. Due to the nature of the service we provide, it is not possible to guarantee; and we therefore we do not warrant; that the service will be provided free of interruption or free from intrusion or hacking by external parties. Bud will not be liable for any service interruptions or down time.
d. Bud reserves the right to take action, including legal or suspension of or termination of a service, against a client who interferes with the rights of another user online, or attempts to interfere with the smooth running of Bud’s services. We reserve the right to discontinue or terminate any account or service where use of service is deemed to be an abuse, and we will charge the customer for costs incurred by us as a result of any such abuse.
e. Bud does not tolerate SPAM. If you use spam, unsolicited emails or message board posting, or any other similar method to promote your site, then your access to our services may be immediately suspended or in the case of repeat offenders, terminated.
f. Scheduled maintenance will be performed at times which is deemed suitable by Bud or Bud’s service provider(s) which has the least noticeable impact on the Client, and should it require the service(s) to be offline for greater than thirty (30) minutes, Bud will post details of the scheduled maintenance at least 24 hours prior.
g. Unscheduled maintenance will be performed at times by Bud or Bud’s service provider(s), and should the Services be offline for greater than thirty (30) minutes, Bud will post details of the maintenance and any updates until it has been completed.
8. Limitation Of Liability
a. Bud shall not be liable to the client for harm caused by or related to client’s service or inability to utilise the service unless caused by gross negligence or wilful misconduct.
b. Neither Party shall be liable to the other for lost profits, direct or indirect, special or incidental, consequential or punitive, or damages of any kind whether or not they were known or should have been known.
c. Notwithstanding anything else in this agreement, the maximum aggregate liability of Bud, any of its employees, agents or affiliates, under any theory of law shall not exceed a payment in excess of the amount paid by the Customer for the Service in question for the six months prior to the occurrence of the event(s) giving rise to the claim.
d. Any claims by the client relating to the quality, quantity or any other aspect of any work product must (Subject to any contrary right given to a consumer by the Australian consumer law) be made in writing within 7 days of collection of the work product by, or actual delivery of the work product to the client.
e. Any claims by the client relating to the amount of any invoice or part thereof must be made in writing within 7 days of the invoice date.
9. Intellectual Property
a. The client warrants that no text or imagery supplied by the client to Bud for the purposes of work or proposed work will breach any law (written or unwritten) or infringe any intellectual property or rights of any third party or result in Bud otherwise becoming liable to any third party.
Without limiting such warranty, Bud may at its absolute discretion refuse to set up, print or deliver any matter which in its opinion may expose Bud or any of its employees or agents to any action, claim, demand, or proceeding whatsoever.
b. Where the client has informed Bud of the intended use of work product, the client warrants the accuracy of such information.
c. Bud will not, in the creation or production of work product for the client, knowingly infringe any other person’s intellectual property rights. However, Bud does not warrant that anything that it utilises in the creation or production of work product for a client, or embodied in the work product created or produced for a client, does not infringe any other person’s intellectual property rights.
d. Where more than one concept, design or other option has been presented to the client, options other than that selected by the client as the final work product shall remain the property of Bud unless otherwise agreed in writing. Fees may apply to the granting of further usage rights in respect of such concepts and designs.
e. If Work involves photographs being created by Bud on behalf of the client, then the client will own full usage rights for such photographs upon receipt of payment in full for the work product in which the photographs were used. If Work involves photographs being commissioned from third parties, then usage rights for such photographs shall be governed by the terms under which those photographs are supplied by third parties.
f. Notwithstanding any other provision in these terms & conditions, Author Materials used by Bud or its suppliers in creation of work product shall remain the sole and exclusive property of Bud or the relevant supplier(s).
g. Unless otherwise agreed in writing, the client grants to Bud standard authorship acknowledgement and permission to use its work product to promote its services. In relation to digital presentations and web-based systems or sites designed or developed by Bud, the authorship acknowledgement includes hyperlink(s) to Bud’s designated website.
10. General Undertakings
a. All materials (logos, images, text or other material) supplied by the client must be of a quality and to the specifications required by Bud. Additional costs apply for any additional Work required to be performed to attain such quality or specifications.
b. Bud and the client must agree on deadlines for delivery of materials to be supplied by the client. The client will be responsible for all costs incurred by Bud in the loss of production time due to such deadlines not being met by the client or due to the materials supplied not being of a quality or to the specifications required by Bud.
c. The client warrants that any information supplied for the purpose of creating an account with Bud, including but not limited to, first name, last name, address, telephone number and email address is true and correct, and will be kept up to date with Bud.
d. The client warrants that they will keep any passwords or sensitive information used with the Service in a secure location.
e. The client warrants that they hold and will continue to hold the copyright for data stored on Bud’s servers, or that they are licensed and will continue to be licensed to use that data.
f. The client warrants that at the time of entering into this agreement they are not relying on any representation made by Bud which has not been expressly stated in this agreement, or on any descriptions or specifications contained in any other document produced by Bud.
g. The client warrants that all due care has been taken to ensure data integrity on Bud’s servers. This includes an undertaking that the client will conduct computer virus scanning and other tests as necessary to ensure that the data uploaded by the client on to or downloaded by the client from the server does not contain any computer virus and will not in any way corrupt the data or systems of any person.
h. You are responsible for any misuse of our services, even for example, if the misuse was committed by a friend, family member, guest, employee or client with access to your account or website. You are also responsible for any such misuse regardless of whether it was with or without your consent. Therefore, you must take steps to ensure that others do not gain unauthorised access to your account or website.
i. The client agrees that they are solely responsible for dealing with anyone who accesses their data, and that you will not refer complaints or inquiries in relation to such access to Bud.
j. Bud does not warrant that the Services will not be subjected to external hacking attempts, viruses, worms, denial of service attacks, or other persons gaining unauthorised access to the Service or internal Bud systems.
k. In no event will Bud be liable to the Customer for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.
l. If you are aware of any violations of the terms and agreements, please report them to: firstname.lastname@example.org
11. Force Majeure
a. Neither party shall be held liable for a force majeure event.
b. If a party believes that a force majeure event has occurred, such party shall immediately inform the other party of the start and end of the force majeure event.
a. This Agreement shall become effective as of approval date and shall continue until terminated by either party upon not less than 30 days’ notice in writing given by either party to the other.
b. Bud reserves the right to refuse new orders or renewals to anyone at our sole discretion without prior notice.
c. Either party to this Agreement may terminate the Agreement if the other party defaults in the performance of any of its material duties and obligations and the default is not cured within thirty (30) days of the receipt of notice of said default, or if the default is not reasonably curable within said period of time, unless the defaulting party commences cure within said period of time and diligently proceeds to cure the default.
In addition, either party may immediately terminate this Agreement by giving written notice to the other party if the other party is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction, if the other party makes an assignment for the benefit of creditors, if a trustee, or similar agent is appointed with respect to any property or business of the other party, or in the case of the Client, if the Client materially breaches its obligations to make payments pursuant to this Agreement.
d. Any non-cancelable materials, services, etc. we have properly committed ourselves to purchase for your account, (either specifically or as part of a plan such as modules, photography and/or external services) shall be paid for by you, in accordance with the provisions of this Agreement. We agree to use our best efforts to minimize such liabilities immediately upon written notification from you. We will provide written proof, upon request of the Client, that any such materials and services, are non-cancelable.
e. Bud may suspend or terminate Services if the Client is found to be in breach of any formal policy including but not limited to these Terms of Services.
f. Bud may suspend or terminate Services if the Client has outstanding fees that are more than seven (7) days past the due date.
g. Bud may decide at its sole discretion to advise a Client that their service will be terminated by giving seven (7) days written notice. In this circumstance, Bud will refund any pre-paid fees for Services on the account.
h. Bud may suspend or terminate Services if a Client’s account is closed for any reason, the Client must pay all outstanding charges by the due dates.
i. Bud is under no obligation to provide the Client with a copy of the data stored on our servers if Bud has suspended or terminated access to the service for any breach of the terms of this agreement. In this circumstance, a copy of the data may be provided to the Client for an additional fee.
j. The Client can request cancellation of any Service with us for any reason by contacting Bud. Only the designated primary contact for the Client may cancel an account.
k. Any pre-paid fees for Services past the current billing month will have a credit applied to their account, except for Domain name purchases.
l. The Client agrees to pay any and all outstanding fees upon cancellation of their Services.
m. Cancellation requests must be received (3) days prior to the renewal date. An administration charge may be applied for requests passed this period.
13. Data Management
a. Bud will backup and archive the Client’s data in relation to any products and or service(s) that are contained within Bud’s infrastructure or ownership on a regular basis for the purpose of disaster recovery.
b. In the event of hard disk failure or data corruption, Bud will restore data from the last known verified archive.
c. The Customer should always maintain a recent copy of all data at all times, as Bud will not be liable for incomplete, out of date, corrupt or otherwise incomplete data recovered from our backups and archives.
d. Should the Customer require Bud to restore or supply a backup of the account data where no fault was caused by Bud, a restoration fee will be payable, prior to restoration.
e. You understand that the email services provided with your hosting account are not to be used as a long-term archive. You must download all email collected by your account to your own computer as it arrives, you must not keep emails on our servers for more than 60 days.
a. Bud may revise these terms and conditions from time to time by posting a new version of this document on our website. Each account is bound by the version of this document that was active as of the date of the initial order or, if the account has been renewed, the version that was active as of the date of the latest renewal, even if the renewal was automated. By renewing or agreeing to have your account renewed, you affirm your acceptance of these terms.
b. In exceptional circumstances, Bud may be required to amend the Terms of Service and enforce the amendments immediately. If this is the case, the Customer will be advised by email and the circumstances will be explained.
15. Governing Law
This agreement is governed by the laws of Western Australia. The client submits to the nonexclusive jurisdiction of the courts of Western Australia and any courts which may hear appeals from those courts in respect of any proceedings in connection with this agreement.