• Definitions

 

    1. “Skypoynt” means Skypoynt Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Skypoynt Pty Ltd.
    2. “Client” means the person/s requesting Skypoynt to provide the Services as specified in any invoice, document or order, and if there more than one person requesting the Services is a reference to each person jointly and severally.
    3. “Services” means all Goods (which includes any files, information, printed or virtual material, images, advertising, data, graphics, pictures, trademarks, software, applications, manuals, and other associated documentation and/or goods) or Services (which includes any advice or recommendations, consultancy, hosting, backups, design and/or maintenance of web sites, brands, designs, or advertising, project management work, technical service and support and training, etc.) supplied by Skypoynt to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
    4. “Web Site” means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.
    5. “Prohibited Content” means any content on any advertising media that:
      1. is, or could reasonably be considered to be, in breach of the Broadcast Services Amendment (Online Service) Act 1999 (Cth); the Competition and Consumer Act 2010 (Cth); or any other applicable law or applicable industry code; or
      2. contains, or could reasonably be considered to contain, any misrepresentations; or is, or could reasonably be considered to be, misleading or deceptive, likely to mislead or deceive or otherwise unlawful; or
      3. is, or could reasonably be considered to be, in breach of any person’s Intellectual Property Rights (including, but not limited to, the distribution of music files or any other material in which the Client does not own the copyright).
    6. “Price” shall mean the cost of the Services (plus any Goods and Services Tax (“GST”) where applicable) as agreed between Skypoynt and the Client subject to clause 4 of this Agreement.
    7. “GST” means Goods and Services Tax (GST) as defined within the “A New Tax System (Goods and Services Tax) Act 1999” Cth.

 

 

  • Acceptance

 

    1. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by Skypoynt.
    2. These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or Agreement between the Client and Skypoynt.
    3. These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on Skypoynt’s Web Site. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
    4. None of Skypoynt’s agents or representatives are authorised to make any representations, statements, conditions or Agreements not expressed by the manager of Skypoynt in writing nor is Skypoynt bound by any such unauthorised statements.
    5. Once accepted by the Client, Skypoynt’s quotation shall be deemed to interpret correctly the Client’s instructions, whether written or verbal. Where verbal instructions only are received from the Client, Skypoynt shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
    6. Any advice, recommendations, information, assistance or service provided by Skypoynt in relation to Services provided is given in good faith, is based on information provided to Skypoynt, and Skypoynt’s own knowledge, and experience. Whilst it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Services, human error is possible under these circumstances, and Skypoynt shall make all effort to offer the best solution to the Client.
    7. The Client accepts that is a choice of design is presented, only one solution is deemed to be given by Skypoynt as fulfilling the Agreement. All other designs shall remain the property of Skypoynt, unless otherwise agreed in writing.
    8. The Client accepts and acknowledges that copyright is retained by Skypoynt on all design work and other Services provided by Skypoynt including text, images, ideas, models, visuals and illustrations unless specifically released in writing and after all costs have been settled.
    9. This Agreement constitutes the entire Agreement between Skypoynt and the Client, and the Client hereby acknowledges that no reliance is placed on any representation made by Skypoynt, but not embodied in this Agreement.
    10. Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

 

 

  • Agreement Term

 

    1. Where this Agreement is for ongoing Services, the Agreement Term, unless otherwise specified in writing by Skypoynt, shall be for a period of four (4), six (6) or twelve (12) month periods and will automatically renew for a further respective term on each anniversary unless terminated by either party in accordance with clause 19.
    2. The Client accepts and acknowledges that all fixed Agreements are subject to annual price reviews aligned with Consumer Price Index (CPI) inflation increases.
    3. For any larger contracted Service, Skypoynt works to assign a principal team to each organisation. Skypoynt periodically rotate team members to ensure quality cleaning and quality checks and will always provide at least one (1) of the principal team members in this rotation. This is important because Skypoynt feel it is critical to ensure each team is familiar with the Client’s specific requirements.
    4. Skypoynt invests significant resources in recruiting, selecting and training personnel. By entering into the Agreement with Skypoynt, the Client agrees that after cancellation of the Services the Client will not directly, or indirectly, engage, employ or Agreement with any of Skypoynt’s personnel (or ex-personnel), within twelve (12) months, to provide any services without Skypoynt’s express permission. If the Client wishes to hire or use services provided by Skypoynt’s personnel (or ex-personnel) the Client shall be liable for the payment to Skypoynt of a referral fee, which will be as agreed between the parties.

 

 

  • Change in Control

 

    1. The Client shall give Skypoynt not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by Skypoynt as a result of the Client’s failure to comply with this clause.

 

 

  • Authorised Representatives

 

    1. The Client acknowledges that Skypoynt shall (for the duration of the Services) liaise directly with one (1) authorised representative, and that once introduced as such to Skypoynt, that person shall have the full authority of the Client to order any Services and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to Skypoynt for all additional costs incurred by Skypoynt (including Skypoynt’s profit margin) in providing any Services or variation/s requested thereto by the Client’s duly authorised representative.

 

 

  • Price and Payment

 

    1. At Skypoynt’s sole discretion the Price shall be either:
      1. as indicated on any invoice provided by Skypoynt to the Client; or
      2. Skypoynt’s estimated Price (subject to clause 6.3). The final price can only be ascertained upon completion of the Services. Variances in the estimated Price of more than ten percent (10%) will be subject to Client approval before proceeding with the Services; or
      3. as per Skypyont’s set non-refundable monthly Charges for the Services (“Fixed Agreement”), which will be as stipulated (including when due and payable) by Skypoynt in the Fixed Agreement.
      4. Skypoynt’s quoted price (subject to clause 6.3) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
    2. A copy of the written estimate or quotation is to be signed and dated by the Client to indicate acceptance and should be returned to Skypoynt. As an alternative, the Client may send an official order for the Services via email in reply to the estimate or quotation which will imply the Client’s acceptance of Skypoynt’s terms and conditions. The Client accepts that no work will be commenced until acceptance has been supplied to Skypoynt as per this clause.
    3. Additional and/or Varied Services:
      1. Skypoynt agrees that there will be no charge in the preparation of the initial quotation (however any site visits may be chargeable), which may include Client discussions, project scoping, research, testing and business analysis, etc. However, in some instances the aforementioned services may be charged to the Client additionally (at Skypoynt’s sole discretion). In the event the Client requires proofs, mock-ups, layouts, samples or dummies or printed, typewritten or other good copy and/or edits, this shall be invoiced at Skypoynt’s hourly rate unless specified otherwise in the initial quotation, therefore, this variation shall be detailed on the invoice as per sub-clause (d);
      2. all work carried out whether experimentally or otherwise at the Client’s request will be charged to the Client;
      3. where the performance of any Agreement with the Client requires Skypoynt to obtain products and/or services from a third party, the Agreement between Skypoynt and the Client shall incorporate, and shall be subject to, the conditions of supply of such products and/or services to Skypoynt, and the Client shall be liable for the cost in full including Skypoynt’s margin of such products and/or services;
      4. Skypoynt reserves the right to amend the Price where there is any variation to the accepted plan of scheduled Services, or instructions/specifications, which will be charged for on the basis of Skypoynt’s standard hourly rates (and double such rate for any Services provided outside Skypoynt’s normal business hours) and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion;
      5. the Client acknowledges that all services and support for email are chargeable in addition to the Price;
      6. Skypoynt shall not be held responsible for any amendments made by any third party before or after a design is published; and
      7. as a result of increases beyond Skypoynt’s reasonable control in the cost of materials or labour (e.g. third-party network operator or Skypoynt’s costs (e.g. google) or fluctuations in currency exchange rates, etc.). Where the Client is on a Fixed Agreement, Skypoynt will provide one (1) month’s written notice to the Client of any variation to the Charges thereof.
    4. Variations will be charged for on the basis of Skypoynt’s quotation, and will be detailed in writing, and shown as variations on Skypoynt’s invoice. The Client shall be required to respond to any variation submitted by Skypoynt within ten (10) working days.  Failure to do so will entitle Skypoynt to add the cost of the variation to the Price.  Payment for all variations must be made in full at the time of their completion.
    5. At Skypoynt’s sole discretion a non-refundable deposit may be required.
    6. Time for payment for the Services being of the essence, the Price will be payable by the Client on the date/s determined by Skypoynt, which may be:
      1. prior to commencement of the Services;
      2. by way of instalments/progress payments in accordance with Skypoynt’s payment schedule;
      3. the date specified on any invoice or other form as being the date for payment; or
      4. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Skypoynt.
    7. Publication and/or release of the work done by Skypoynt shall only be released once the funds have been cleared or honoured.
    8. Payment may be made by bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction) or by any other method as agreed to between the Client and Skypoynt.
    9. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by Skypoynt nor to withhold payment of any invoice because part of that invoice is in dispute.
    10. Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to Skypoynt an amount equal to any GST Skypoynt must pay for any provision of Services by Skypoynt under this or any other Agreement. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.

 

 

  • Provision of the Services

 

    1. Any time specified by Skypoynt for provision of the Services is an estimate only and Skypoynt will not be liable for any loss or damage incurred by the Client as a result of provision being late. However, both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that Skypoynt is unable to provide the Services as agreed solely due to any action or inaction of the Client, then Skypoynt shall be entitled to:
      1. charge the Client additionally for re-providing the Services at a later time and date; or
      2. subject to clause 19.4, terminate the Agreement.

 

 

  • Web Site Development

 

    1. Skypoynt’s Responsibilities:
      1. upon acceptance of Skypoynt’s quotation, and in accordance with this Agreement, Skypoynt will:
        1. use its best endeavours to develop the Web Site in accordance with the Client’s instructions and specifications; and
        2. to the extent specified in the Client’s instructions and specifications, negotiate and procure any third-party Agreements on behalf of the Client.
      2. the Client acknowledges that the development of the Web Site by Skypoynt is based upon current technology platforms (e.g. internet browsers, mobile, android, etc.), and therefore Skypoynt cannot guarantee that Web Site features and /or content will display correctly, and that the overall visual experience will be the same, for use by either superseded or presently undeveloped technology.
    2. Client’s Responsibilities:
      1. the Client will, in addition to any other obligations expressed in this Agreement, have the following responsibilities:
        1. provision of all content (including data, logos, designs and/or graphic and related materials) to be incorporated into the Web Site;
        2. provision of any other information, ideas or suggestions which are to be expressly considered by Skypoynt in developing the Web Site.
      2. the Client will ensure that Skypoynt is given such information and assistance (including access to computer systems and other locations to complete a branding project) as Skypoynt reasonably requires to enable Skypoynt to construct and maintain the Web Site.
      3. subject to clause 18.3, the Client shall supply access to any computer system, usernames and passwords required to remove data and/or sites for failure to comply with these terms and conditions.
      4. it shall be the Client’s responsibility to ensure that any specific requirements they may have for mobile web browsers is included in the brief, as, unless otherwise specified therein, the choice of web browsers and technology used in the development of the Web Site shall be at the sole discretion of Skypoynt. In the event that additional Services are requested, or required (as per clause 8.1(b)), in order to meet any specific requirements for mobile web browsers, after Skypoynt has commenced work on the Web Site, shall be treated as a variation to the Charges, and a strict estimation of further work required shall be submitted to the Client for approval before proceeding with the variation work.
      5. Skypoynt will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the Web Site which is attributable to:
        1. incorrect information provided by the Client, either pursuant to this clause or otherwise; or
        2. failure by the Client to provide relevant information, either pursuant to this clause or otherwise; or
        3. any third-party products and/or services used by Skypoynt in creation of the Web Site.
    3. Proof Reading:
      1. whilst every care is taken by Skypoynt to carry out the instructions of the Client, it is the Client’s responsibility to undertake proofreading and provide feedback (where necessary) via Dropbox, cloud storage and/or any other platform agreed to between the two parties which provides regular, possibly daily contact. Skypoynt shall be under no liability whatever for any errors not corrected by the Client during the proofreading stages, and:
        1. should the Client’s alterations require additional proofs this shall be invoiced as an extra;
        2. if, at any stage the Client is unhappy with the direction the Services are taking, the Client can cancel this Agreement and pay Skypoynt for work completed up to that date of cancellation.
      2. when style, type or layout is left to Skypoynt’s judgement and the Client makes further alterations, this will be invoiced as an extra.
      3. Skypoynt will make one (1) set of minor changes at no extra cost within fourteen (14) days of the review period. Minor changes include small text changes and small adjustments to placement of items on the artwork. It does not include changes to images, colour schemes, or any navigation features. Any minor changes need to be notified to Skypoynt via email.
      4. should the Client fail to notify Skypoynt in writing of any amendments within fourteen (14) days from the commencement of the review period, Skypoynt shall deem that the original draft as being acceptable.
    4. Client’s Property and Materials:
      1. graphic files should be supplied in an editable, vector digital format and photographs in a high resolution digital format. If the Client chooses to purchase stock photographs, Skypoynt can suggest stock libraries.
      2. in the case of property and materials left with Skypoynt without specific instructions, Skypoynt shall be free to dispose of them at the end of twelve (12) months after their receiving them and to accept and retain the proceeds, if any, to cover their own costs in holding and handling them.
      3. where materials or equipment are supplied by the Client, Skypoynt accepts no responsibility for imperfect work caused by defects in or unsuitability of such materials or equipment.
    5. Maintenance:
      1. subject to sub-clause (b), Skypoynt will provide the Maintenance Services in accordance with the maintenance terms set out in Skypoynt’s maintenance schedule.
      2. the Client will procure all necessary authorisations, licences and consents to enable Skypoynt to have access to the Web Site in order to provide the Maintenance Services.

 

 

  • Hosting Services

 

    1. “Live Date” means the date in which Skypoynt provides the Hosting Services as per initial acceptance of Skypoynt’s quotation.
    2. Hosting services shall only be used by the Client for lawful purposes. Any use which violates any applicable national or international laws is strictly prohibited (e.g. posting or transmitting any unlawful, threatening, abusive, libellous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind – including, but not limited to, any transmission constituting or encouraging conduct that would constitute a criminal offense or give rise to civil liability).
    3. Hosting services exclude domain registrations and Secure Sockets Layer (SSL) Certificates, and where the Client is changing from another hosting provider the install and set-up of the Web Site on Skypoynt’s webservers, which shall be charged to the Client additionally.
    4. Skypoynt will, at its sole cost and expense:
      1. host the Web Site on Skypoynt’s webservers, where information will pass through Skypoynt’s secure server (“Servers Australia”) using SSL (secure sockets layer) encryption technology;
      2. ensure that from the Live Date:
        1. sufficient capacity is maintained on Skypoynt’s web server to enable users access to the Web Site in a timely manner;
        2. the Web Site is accessible to users in accordance with the agreed service levels (subject to reasonable downtime for server maintenance which has been notified to the Client prior to the commencement of the downtime or (where applicable) Maintenance in accordance with clause 9.8);
      3. provide the Client with reasonable access to the Web Site to perform maintenance services.
    5. Skypoynt will not:
      1. alter or amend, or permit any person to alter or amend the Web Site without the written consent of the Client;
      2. post or display on the Web Site any advertisement, sponsorship or promotion without the written consent of the Client;
      3. use any user data for marketing, referral or other purposes except as expressly authorised by this Agreement;
      4. sub-licence, rent, time-share, lease, lend or grant any rights to use the Web Site; or
      5. assign, transfer or authorise anyone else to exercise the rights in any licence granted pursuant to this Agreement.
    6. Skypoynt will make best efforts to ensure that the Client receives continual and uninterrupted Services (including network or hosting servers) during the term of this Agreement, however Skypoynt does not in any way warrant or otherwise guarantee the availability of the Services, which shall be subject to regularly scheduled maintenance cycles, and many events/circumstances beyond the control of Skypoynt. In no event though, shall Skypoynt be liable to the Client for damages (including loss of income) resulting from or in relation to any failure or delay (including server downtime, programming errors, lack of connection or slow connection) of Skypoynt to provide Services under this Agreement, or any loss of data, if such delays or failures are due to circumstances beyond our control. Such a failure or delay shall not constitute a default under this Agreement.
    7. Skypoynt may, at their sole discretion, limit or deny access to the Services is, in the judgement of Skypoynt, such limitations or denials of access are required to assure the security of the network, the integrity of the network structure, or to prevent damage to the network.
    8. Web Site Maintenance Services:
      1. subject to clause (b), Skypoynt will provide the Web Site Maintenance Services in accordance with the maintenance terms set out in Skypoynt’s maintenance schedule.
      2. the Client will procure all necessary authorisations, licences and consents to enable Skypoynt to have access to the Web Site in order to provide the Maintenance Services.
    9. Client’s Obligations:
      1. the Client will, at its sole cost and expense:
        1. subject to any Agreement with Skypoynt for Web Site Development, develop and maintain the Web Site;
        2. provide the content to Skypoynt, in such form as reasonably prescribed by Skypoynt from time to time, and hereby grants Skypoynt a non-exclusive, worldwide, irrevocable licence to use such content for the purposes of hosting the Web Site;
        3. do all things reasonably necessary to enable Skypoynt to host the Web Site on Skypoynt’s webserver;
        4. change the type of hosting account used if that account is deemed by Skypoynt to be unacceptable because of poor service, lack of bandwidth or in any other way insufficient to support the Web Site;
        5. is responsible for any fees payable and due to previous hosting organisations engaged by the Client;
        6. ensure that content supplied to Skypoynt do not contain Prohibited Content, a link to any web site that contains Prohibited Content, or any viruses, trojan horses, worms, time bombs, cancel bots or any other software program or routine designed for or capable of interfering with the operation of the Hosting Services.
      2. the Client will not:
        1. logon to an account that the Client is not authorised to access;
        2. access data or take any action to obtain services not intended for the Client;
        3. attempt to probe, scan or test the vulnerability of any system, subsystem or network;
        4. tamper, hack, modify or otherwise corrupt or breach security or authenticity measures without proper authorisation;
        5. transmit any material outlined in clause 9.9(a)(vi);
        6. do anything that prevents or hinders Skypoynt from providing Hosting Services to any other person.
      3. the Client acknowledges that spamming (i.e. the sending of unsolicited email), email address cultivation, or any unauthorised collecting of email addresses without prior notification of the email address owner is strictly prohibited.
    10. Network Traffic:
      1. network traffic shall be measured by Skypoynt and may include all forms of traffic to and from the Web Site. Domestic data transfer is provided free of charge, but Skypoynt reserve the right to suspend Hosting Services (at any time and without notice to the Client) for what it deems to be excessive traffic usage.
    11. PPC Marketing Services:
      1. where agreed between the parties, Skypoynt shall provide the Client the facility to Pay Per Click Marketing services either through Google search ads, Google Display ads, Bing ads, Facebook Twitter or Linkedin Marketing ads or any paid audience provider.
    12. Google Tag Manager to Tag Code and Web Site Visitor Tracking:
      1. tracking code installation on the Web Site is provided in most circumstances through an installation of Google Tag Manager. Google Tag Manager needs to be installed on every single page of the Client’s Web Site in order to effectively market, report and promote a Client’s marketing objectives.
    13. Levels of Search Ad Services:
      1. a Client must provide Skypoynt with the respective content of any search ad for a Google search, Bing search or social media campaign, including but not limited to, text, imagery, logos, media files, or asset of any nature to be used in or as a result of an ad.
    14. Unbounce Landing Page Services
      1. a landing page asset, is what Skypoynt defines as an .unbounce file.  The .unbounce files that Skypoynt creates for Clients are agency owned, which means that any landing pages that are designed by Skypoynt throughout the business relationship within the provisions of this Agreement, will still belong to Skypoynt if the Agreement ends.  While leads collected through the landing pages would still be property of the Client, Skypoynt will hold onto the .unbounce files under Skypoynt’s own account in the event of an Agreement ending either early or at the time of the expiry term of the Agreement.
      2. if the Client wishes to obtain ownership of the .unbounce files at the end of the Agreement term, an additional licence ownership fee will need to be paid by the Client.  At Skypoynt’s sole discretion, such a fee is assessed on the complexity of the .unbounce file referenced, which will normally range between $1,400-$2,500.
    15. Limitation of Liability for Hosting Services
      1. in consideration of clause 23.3, in the event the Hosting Services provided to the Client are disrupted or malfunction for any reason, Skypoynt’s liability shall be limited to damages which under no circumstances shall exceed the amount due and payable by the Client to Skypoynt for the Hosting Services during the period of disruption or malfunction.

 

 

  • Search Engine Optimisation (SEO)

 

    1. Although Skypoynt shall use their knowledge and experience to gain the best results possible, Skypoynt gives no guarantee of the quality of visitor or the position / page rank or volume of visits to the Web Site, or warranty that the Web Site will be effective in promoting the Client’s business or result in any increase in sales of the products/services of the Client. Periodic reporting will be sent to the Client’s nominated email address, at the sole discretion of Skypoynt.

 

 

  • Domain Registration

 

    1. Where Skypoynt is register a domain name on the Client’s behalf, Skypoynt cannot guarantee the availability of the domain name, nor assume a successful registration or such a name.

 

 

  • Risk and Limitation of Liability for Client Data

 

    1. The Client shall provide Skypoynt with data in the following formats:
      1. for text, files shall be in an electronic format as standard text (.txt) or Work (.doc) on a USB, CD-ROM or via email;
      2. for imaged, in an electronic format as prescribed by Skypoynt on a USB, CD-ROM or via email with the images of a suitable quality applicable for the use intended and without any subsequent image processing being required. Skypoynt shall not be responsible for the quality of images scanned from printed materials;
      3. additional expenses may be charged to the Client for any necessary action, including, but not limited to, photography and art direction, photography searches, media conversion, digital image processing or data entry services.
    2. The Client acknowledges and agrees that Skypoynt shall not be held responsible or liable for:
      1. anything related to the Web Site, Hosting Services or any other Services provided;
      2. any supplied content breaching any Acts, legislation or regulations, unless due to the negligence of Skypoynt;
      3. any loss, corruption, or deletion of files or data (including, but not limited to software programmes) resulting from illegal hacking or Services provided by Skypoynt. Whilst Skypoynt will endeavour to restore the Web Site, files or data (at the Client’s cost), it is the sole responsibility of the Client to back-up any data which they believe to be important, valuable, or irreplaceable prior to Skypoynt providing the Services. The Client accepts full responsibility for the Client’s software and data and Skypoynt is not required to advise or remind the Client of appropriate backup procedures (unless included as part of the Services);
      4. any loss or damage to the Client’s software or hardware caused by any ‘updates’ provided for that software.
    3. Skypoynt, its directors, agents or employees will not be liable in any way for any form of loss or damage of any nature whatsoever suffered, whether arising directly or indirectly, by the Client or any person related to or dealing with the Client out of, in connection with or reasonably incidental to the provision of the Services by Skypoynt to the Client.
    4. The Services are provided on an “as is, as available” basis. Skypoynt specifically disclaims any other warranty, express or implied, including any warranty of merchantability or fitness for a particular purpose.
    5. Publicity
    6. All media releases and public announcements by either party relating to these terms and conditions, or the Services (including subject matter and related Materials), shall be co-ordinated with the other party and approved jointly by the party prior to release.
    7. Skypoynt shall not be held responsible for the use of Services as referred to in by media, once information approved by the Client has been submitted to the media.
    8. When reactive PR is required, the Client agrees that Skypoynt can act on the Client’s behalf, if required, in line with the provision of Services under these terms and conditions, based on information previously supplied by the Client and Skypoynt’s understanding of the Client’s instructions.
    9. Public Access:
      1. the Client understands that by placing information on the Web Site, such information may be accessible to all internet users. Skypoynt does not (unless expressly requested by the Client) limit or restrict access to such information, nor protect such information from copyright infringement or other wrongful activity. The Client assumes full responsibility for their use of the Services, and it is the Client’s sole responsibility to evaluate the accuracy, completeness and usefulness or all opinions, advice, services, and other information, and the quality and merchantability of all Services provided by Skypoynt, or on the internet generally.
    10. Defects, Errors and Omissions:
      1. the Client shall inspect/review the Services on provision and shall within seven (7) days of such time notify Skypoynt of any alleged defect, shortage in quantity, errors, omissions or failure to comply with the description or quote. The Client shall afford Skypoynt an opportunity to inspect/review the Services within a reasonable time following such notification if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
      2. for defective Services, which Skypoynt has agreed in writing that the Client is entitled to reject, Skypoynt’s liability is limited to either (at Skypoynt’s discretion) replacing the Services or rectifying the Services, provided that the Client has complied with the provisions of sub-clause (a).

 

 

  • Title

 

    1. Skypoynt and the Client agree that the Client’s obligations to Skypoynt for the supply of Services shall not cease (and ownership of any Goods shall not pass) until:
      1. the Client has paid Skypoynt all amounts owing to Skypoynt for the Services; and
      2. the Client has met all other obligations due by the Client to Skypoynt in respect of all Agreements between Skypoynt and the Client.
    2. Receipt by Skypoynt of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then Skypoynt’s ownership or rights in respect of the Services, and this Agreement, shall continue.
    3. It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 13.1:
      1. the Client is only a bailee of the Goods and must return the Goods to Skypoynt on request.
      2. the Client holds the benefit of the Client’s insurance of the Goods on trust for Skypoynt and must pay to Skypoynt the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
      3. the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for Skypoynt and must pay or deliver the proceeds to Skypoynt on demand.
      4. the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of Skypoynt and must sell, dispose of or return the resulting product to Skypoynt as it so directs.
      5. the Client irrevocably authorises Skypoynt to enter any premises where Skypoynt believes the Goods are kept and recover possession of the Goods.
      6. Skypoynt may recover possession of any Goods in transit whether or not delivery has occurred.
      7. the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of Skypoynt.
      8. Skypoynt may commence proceedings to recover the Price notwithstanding that ownership of the Goods has not passed to the Client.

 

 

  • Personal Property Securities Act 2009 (“PPSA”)

 

    1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
    2. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods, and/or any monetary obligation of the Client to Skypoynt for Services, previously provided (if any), and to be provided in the future, by Skypoynt to the Client.
    3. The Client undertakes to:
      1. promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Skypoynt may reasonably require to:
        1. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register; or
        2. register any other document required to be registered by the PPSA; or
        3. correct a defect in a statement referred to in clause 1.1(a)(i) or 1.1(a)(ii).
      2. indemnify, and upon demand reimburse, Skypoynt for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any registration made thereby; and
      3. not register a financing change statement in respect of a security interest without the prior written consent of Skypoynt; and
      4. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of Skypoynt.
    1. Skypoynt and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
    2. The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
    3. The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
    4. Unless otherwise agreed to in writing by Skypoynt, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
    5. The Client must unconditionally ratify any actions taken by Skypoynt under clauses 14.3 to 14.5.
    6. Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

 

 

  • Security and Charge

 

    1. In consideration of Skypoynt agreeing to provide the Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
    2. The Client indemnifies Skypoynt from and against all Skypoynt’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Skypoynt’s rights under this clause.
    3. The Client irrevocably appoints Skypoynt and each director of Skypoynt as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.

 

 

  • Defects, Warranties and the Competition and Consumer Act 2010 (CCA)

 

    1. Any alleged fault, defect, shortage in quantity, errors, omissions Including Skypoynt’s workmanship) or failure to comply with the description, quotation or estimate of the Services which the Client detects must be reported to Skypoynt as soon as is practically possible, but no later than forty-eight (48) hours following the provision of the Services (or detection of such defect for any Services the subject of an Agreement Term), or the date of delivery of any Goods. Any emails or telephone messages which are received outside Skypoynt’s normal business hours will be processed the following business day. Upon such notification the Client must allow Skypoynt to review or inspect the Services that were provided.
    2. Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (“Non-Excluded Guarantees”).
    3. Skypoynt acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
    4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Skypoynt makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. Skypoynt’s liability in respect of these warranties is limited to the fullest extent permitted by law.
    5. If the Client is a consumer within the meaning of the CCA, Skypoynt’s liability is limited to the extent permitted by section 64A of Schedule 2.
    6. If Skypoynt is required to rectify, re-provide, or pay the cost of re-providing the Services under this clause or the CCA, but is unable to do so, then Skypoynt may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services which have been provided to the Client which were not defective.
    7. If the Client is not a consumer within the meaning of the CCA, Skypoynt’s liability for any defective Services is:
      1. limited to the value of any express warranty, or warranty card, provided to the Client by Skypoynt (at Skypoynt’s sole discretion); or
      2. limited to any warranty to which Skypoynt is entitled, if Skypoynt did not manufacture the Goods; or
      3. otherwise negated absolutely.
    8. Subject to this clause 16, returns will only be accepted provided that:
      1. the Client has complied with the provisions of clause 16.1; and
      2. Skypoynt has agreed that the Goods are defective; and
      3. the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
      4. the Goods are returned in as close a condition to that in which they were delivered as is possible.
    9. Notwithstanding clauses 16.1 to 16.8, but subject to the CCA, Skypoynt shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
      1. the Client failing to properly maintain or store the Services; or
      2. the Client using the Services for any purpose other than that for which they were designed; or
      3. the Client continuing to use the Services after any defect became apparent or should have become apparent to a reasonably prudent operator or user; or
      4. interference with the Services by the Client or any third party without Skypoynt’s prior approval; or
      5. the Client failing to follow any instructions or guidelines provided by Skypoynt; or
      6. fair wear and tear, any accident, or act of God.
    10. In the case of second-hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that they have had full opportunity to inspect the Goods prior to delivery, and accepts them with all faults, and that, to the extent permitted by law, no warranty is given by Skypoynt as to the quality or suitability for any purpose, and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that Skypoynt has agreed to provide the Client with the Goods (and calculated the Price thereof) in reliance of this clause 16.10.
    11. Notwithstanding anything contained in this clause, if Skypoynt is required by a law to accept a return then Skypoynt will only accept a return on the conditions imposed by that law.

 

 

  • Intellectual Property and Confidentiality

 

    1. Where Skypoynt has designed, drawn or developed Services (including the Web Site) for the Client, Skypoynt retains full intellectual property ownership of the Services, including the copyright in any designs and drawings and documents, and Skypoynt hereby grants to the Client an irrevocable, non-exclusive and non-transferable licence to use the Services solely in relation to the operation of the Client’s own business, conditional upon the Client fulfilling their obligations under this Agreement (including, but not limited to, the full payment of the Price).
    2. Subject to the Copyright Act 1994 and the conditions therein, where Skypoynt or their subcontractor has provided the Client with a licence for use on any design, copy, writing, drawing, image, illustration, idea or code created for the Client, the licence shall be for use by the Client on a one-time only basis and may not be modified, re-used, or re-distributed in any way or form without the express permission of Skypoynt and any of its relevant subcontractors.
    3. All design work where there is a risk that another party makes a claim, should be registered by the Client with the appropriate authorities prior to publishing or first use or searches and legal advice sought as to its use. Skypoynt shall not be held responsible for any or all damages resulting from such claims.
    4. The Client hereby authorises Skypoynt to utilise images of the Services created by Skypoynt in advertising, marketing, or competition material by Skypoynt including, but not limited to:
      1. the Client permitting Skypoynt to place a small credit on printed material, exhibition displays, advertisement and/or link to Skypoynt’s own web site on the Client’s Web Site, which shall usually be in the form of a small logo or line of text placed towards the bottom of the page;
      2. allowing Skypoynt to place web sites and other designs, along with a link to the Client’s Web Site on Skypoynt’s own web site for demonstration purposes and to use any designs in Skypoynt’s own publicity.
    5. The Client shall indemnify Skypoynt against any claims by third parties for patent, trademark, design or copyright infringement, directly or indirectly arising out of the design, workmanship, material, construction, or use of the Services or any other deficiency therein. Where the Client has supplied drawings, sketches, files or logo’s to Skypoynt, the Client warrants that the drawings, sketches, files or logo’s do not breach any patent, trademark, design or copyright, and the Client agrees to indemnify Skypoynt against any action taken by a third party against Skypoynt.
    6. Notwithstanding anything herein, the Intellectual Property Rights in Skypoynt’s Services do not vest in the Client and there is no assignment of these Intellectual Property Rights to the Client. Skypoynt hereby grants to the Client an irrevocable, non-exclusive and non-transferable licence to use and reproduce the Services for the purposes of this Agreement only, and solely for the operation of the Client’s business however, the Client shall not use nor make copies of such Intellectual Property in connection with any work or business other than the work or business specified in writing to Skypoynt unless express approval is given in advance by Skypoynt. Such license shall terminate on default of payment or any other terms of this Agreement by the Client.
    7. All Flash, PHP, Java Script, HTML and Dynamic HTML coding and other supplied code (if any) remains the intellectual property of Skypoynt. Copying or disseminating the code for any purpose whatsoever is strictly forbidden and will be a breach of copyright.
    8. Each party agrees to treat all information and ideas communicated to it by the other confidential and agree not to divulge it to any third party, without the other party’s written consent. The parties will not copy any such information supplied, and will either return it or destroy it (together with any copies thereof) on request of the other party.

 

 

  • Default and Consequences of Default

 

    1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Skypoynt’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    2. If the Client owes Skypoynt any money the Client shall indemnify Skypoynt from and against all costs and disbursements incurred by Skypoynt in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Skypoynt’s collection agency fees, and bank dishonour fees).
    3. Further to any other rights or remedies Skypoynt may have under this Agreement, if a Client has made payment to Skypoynt, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Skypoynt under this clause 18 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Agreement.
    4. Without prejudice to any other remedies Skypoynt may have, if at any time the Client is in breach of any obligation (including those relating to payment, whether or not the payment is due to Skypoynt) Skypoynt may suspend or terminate the provision of Services to the Client, (this includes but is not restricted to, withholding domain codes, passwords and Goods, and/or blocking or restricting public and Client access to the Web Site, or removing the Web Site from the web completely) and any of its other obligations under the terms and conditions. Skypoynt will not be liable to the Client for any loss or damage the Client suffers because Skypoynt has exercised its rights under this clause.
    5. Without prejudice to Skypoynt’s other remedies at law Skypoynt shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Skypoynt shall, whether or not due for payment, become immediately payable if:
      1. any money payable to Skypoynt becomes overdue, or in Skypoynt’s opinion the Client will be unable to make a payment when it falls due;
      2. the Client has exceeded any applicable credit limit provided by Skypoynt;
      3. the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
      4. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

 

 

  • Cancellation and Termination

 

    1. Without prejudice to any other remedies Skypoynt may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Skypoynt may suspend or terminate the supply of Services to the Client. Skypoynt will not be liable to the Client for any loss or damage the Client suffers because Skypoynt has exercised its rights under this clause.
    2. Skypoynt may cancel these terms and conditions or cancel provision of the Services at any time before the Services are provided by giving written notice. Skypoynt shall not be liable for any loss or damage whatever arising from such cancellation.
    3. At Skypoynt’s sole discretion the Client may cancel provision of the Services. In the event that the Client cancels provision of the Services the Client shall be liable for any costs incurred by Skypoynt (including, but not limited to, loss of profit) up to the time of cancellation.
    4. Where the Client cancels an order:
      1. the initial notification may be by telephone or email but must be confirmed in writing within seven (7) days;
      2. the Client shall be invoiced for all work completed over and above the non-refundable deposit as per clause 6.3(g);
      3. where failure clause 19.4(a) occurs, the Client shall be required to pay the full quoted cost of the Services.
    5. Should the Client, for any reason, cause the Services to be delayed for more than three (3) months after the acceptance date, this Agreement will be terminated by Skypoynt (at their sole discretion) and all Services completed, but not billed or paid, will be payable in full within seven (7) days from the date of the submitted invoice.
    6. If the Client fails to comply with any of the provisions of this Agreement and does not rectify such non-compliance within seven (7) days of Skypoynt giving notice either in writing, via fax or email, then Skypoynt may without prejudice to any other rights or remedies, and without being liable to the Client for any loss or damage that may result, give notice to the Client terminating their right to use the Web Site, Software and Services. Upon termination of the Agreement, the Client shall lose all right to use the Web Site and products, and shall forthwith deliver the Goods to Skypoynt and destroy all copies made. The Client shall certify in writing that the copies have been destroyed.
    7. In the event the Services are terminated as per clauses 19.4 or 19.6, the Services can be re-instated under a new Agreement at the prevailing rates; however, no credits or discounts will be granted, and reinstatement costs shall apply.
    8. Either Party may terminate the Fixed Price Agreement for Services or any one or more Schedules immediately by written notice being not less than thirty (30) days’ of their intent to terminate at any time after the initial Agreement period (as specified in Skypoynt’s quotation or Service Agreement) is ended.
    9. Where the Client wishes to terminate the Fixed Price Agreement during the term stipulated, the Client must pay to Skypoynt the remaining Fixed Price Agreement fees which would otherwise have been payable to Skypoynt during the Fixed Price Agreement term unless otherwise agreed.

 

 

  • Privacy Act 1988

 

    1. The Client agrees for Skypoynt to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by Skypoynt.
    2. The Client agrees that Skypoynt may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
      1. to assess an application by the Client; and/or
      2. to notify other credit providers of a default by the Client; and/or
      3. to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
      4. to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
    3. The Client consents to Skypoynt being given a consumer credit report to collect overdue payment on commercial credit.
    4. The Client agrees that personal credit information provided may be used and retained by Skypoynt for the following purposes (and for other agreed purposes or required by):
      1. the provision of Services; and/or
      2. analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
      3. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
      4. enabling the collection of amounts outstanding in relation to the Services.
    5. Skypoynt may give information about the Client to a CRB for the following purposes:
      1. to obtain a consumer credit report; and/or
      2. allow the CRB to create or maintain a credit information file about the Client including credit history.
    6. The information given to the CRB may include:
      1. personal information as outlined in 20.1 above;
      2. name of the credit provider and that Skypoynt is a current credit provider to the Client; and/or
      3. whether the credit provider is a licensee; and/or
      4. type of consumer credit; and/or
      5. details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested); and/or
      6. advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Skypoynt has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments); and/or
      7. information that, in the opinion of Skypoynt, the Client has committed a serious credit infringement; and/or
      8. advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
    7. The Client shall have the right to request (by e-mail) from Skypoynt:
      1. a copy of the information about the Client retained by Skypoynt and the right to request that Skypoynt correct any incorrect information; and/or
      2. that Skypoynt does not disclose any personal information about the Client for the purpose of direct marketing.
    8. Skypoynt will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Agreement or is required to be maintained and/or stored in accordance with the law.
    9. The Client can make a privacy complaint by contacting Skypoynt via e-mail. Skypoynt will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.

 

 

  • Dispute Resolution

 

    1. Skypoynt and the Client will negotiate in good faith and use their reasonable efforts to settle any dispute that may arise out of, or relate to, this Agreement, or any breach thereof. If any such dispute cannot be settled amicably through ordinary negotiations, the dispute shall be referred to the representatives nominated by each party who will meet in good faith in order to attempt to resolve the dispute. Nothing shall restrict either party’s freedom to commence legal proceedings to preserve any legal right or remedy or protect and proprietary or trade secret right.

 

 

  • Service of Notices

 

    1. Any written notice given under this Agreement shall be deemed to have been given and received:
      1. by handing the notice to the other party, in person;
      2. by leaving it at the address of the other party as stated in this Agreement;
      3. by sending it by registered post to the address of the other party as stated in this Agreement;
      4. if sent by facsimile transmission to the fax number of the other party as stated in this Agreement (if any), on receipt of confirmation of the transmission;
      5. if sent by email to the other party’s last known email address.
    2. Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

 

 

  • General

 

    1. The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    2. These terms and conditions and any Agreement to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the Sydney Courts in that state.
    3. Skypoynt shall be under no liability whatsoever to the Client for any expenses, claims, costs (including but not limited to legal fees and commissions), damages suffered or incurred by Skypoynt, or indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Skypoynt of these terms and conditions, caused by any failure by the Client to comply with their obligations under this Agreement, or that arise from any claim relating to the Services by any person that the Client authorises to use the Services, or where due to server downtime or programming errors (alternatively Skypoynt’s liability shall be limited to damages which under no circumstances shall exceed the Price).
    4. Neither party to this Agreement may assign this Agreement, any payment or any other right, benefit or interest under this Agreement without the written consent of the other party (which shall not be unreasonably withheld). Skypoynt may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Agreement by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Skypoynt’s sub-contractors without the authority of Skypoynt.
    5. The Client agrees that Skypoynt may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Skypoynt to provide Services to the Client.
    6. Neither party shall be liable for any default due to fires, explosions, severe weather, industrial disputes, insurrection, requirements or regulations, or any civil or military authority, acts of war (whether declared or not), civil unrest, acts of God, earthquake, flood, riot, embargo, government act, strike, lock-out, storm, terrorism, or failure or outage of any telecommunications links or other connections forming part of the Internet which are beyond the reasonable control of either party.
    7. Both parties warrant that they have the power to enter into this Agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Agreement creates binding and valid legal obligations on them.