Terms of Service
Version 2.1 Updated 17 July 2017
1. Scope and Purpose
A. This Agreement, hereafter referred to as the “Agreement”, explains the terms of service, responsibilities, benefits, restrictions and liabilities You agree to by entering into a service arrangement with Me, or by accessing or using My services or information provided by Me. As a user of My website(s) or as a user of My 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 “I”, “My”, “Mine”, “Myself” or “Me” it is referring to Kevin Sargeant (ABN 69 978 380 478), My 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 My website or accessing services and/or products provided by Me, including business owners and their representative operators as direct or indirect result of using My 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 utilised by Me 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 My website, any service or product or make commercial enquiry of Me, 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 My network.
C. If You do not agree to these Terms, You should not review information or obtain services or products from Me. If there is an existing arrangement that needs to be cancelled contact Me immediately.
5. Changes To These Terms and My Policies
A. I reserve the right to modify or remove the terms of this Agreement and My policies at any time by posting changes online. I will make reasonable efforts to inform You of changes. Your continued use of My 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 Me are governed by the laws of New South Wales. 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 Sydney, NSW.
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. I do not warrant that the content of My 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 My 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. I 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 My sites, content or any products or services provided by Me.
C. I retain limited liability to You. My total liability (if any) for loss, damage or reliance shall be limited, at My 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 Me 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 Me as a direct or indirect consequence of using or attempting to use My information, products, services or any breach by You or Your agents of the Agreement. I am not responsible for, and expressly disclaim all liability for damages of any kind arising out of use, reference to, or reliance on any information contained within the site(s), or through use of My products or services.
E. The limitation and terms explained herein includes (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 Me (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 My site(s) or services. Links are provided for convenience only. I 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), My site(s) or via My procedures.
v. Defamatory, threatening, offensive or unlawful conduct of third parties or My 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, I 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 Me for. Changes to the algorithm used by search engine providers is beyond My control, and changes to penalty and other factors can result in loss of position to various degrees. At the time of implementation I 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 My services. Unless specifically stated in a trade-restriction arrangement, I do not guarantee to withhold My services from competitors (even though on principle I am usually reluctant to do so). On request, usually for additional fees, and for a limited time, I 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. I 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. I endeavour to assist in areas where I have expertise, but do not accept responsibility for commentaries made beyond those required of Me by law and not excludable under the law within My 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. I make no representations as to 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, I exclude all warranties by Me that otherwise would be implied in any transactions for the supply by Me of My site(s), information, products or services (including warranties of satisfactory quality, merchantability and fitness for purpose). All warranties and guarantees offered are expressly 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. I reserve the right to monitor Your compliance with this Agreement by any means and to take action if I deem it necessary.
B. I reserve the right to determine whether Your actions are a breach of any of these terms.
C. I reserve the right to act on any complaint received and will cooperate and assist fully with law enforcement agencies if required.
D. I will report breaches of this policy to appropriate law enforcement agencies where deemed appropriate.
E. I 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 Me, as calculated by Me and explained to You in writing. You will receive an invoice, with terms of 14 days, payable via My usual payment facility and method.
11. Continuity of Services, Conditions and Product Availability
A. I do not warrant that I will continue to make My site(s), services or products available. I 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. I 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.
C. I may at times elect to provide my services outside standard business hours. Where this occurs, additional fees may apply, however these will be discussed pre-emptively. In no way is it inferred or promised that if an exceptional out-of-hours service is provided on one occasion, that it will be provided on subsequent occasions, or that subsequent occasions will be under the same fee arrangements.
D. I reserve the right to withdraw my services if, in my professional judgement, I am being asked to engage in ethically questionable or fraudulent behaviour. It is recognised that marketing and copywriting engages the skills of presenting you at your best, even when that best is not always attained. This is quite different from misrepresentation that is ethnically questionably or fraudulent. If such instances occur a pro-rata refund will be provided, and whatever work has been done to date will be handed over for your use. If you anticipate that this policy may cause problems you should make known any relevant facts or intentions as soon as you become aware of them.
12. Use of Subscription and Registered User Services
A. I 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 My 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 Me 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 Me for posting or inclusion in My online forums, at any time, becomes My 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. I 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 use of My 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 an 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 My commercial well-being or reputation.
v. Impacts negatively upon My ability to operate.
14. Accounts and Financial Transactions
A. I may 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 Me on their scheduled due dates.
C. I 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 Me to debit any outstanding funds from Your nominated account without need for notification at a future date.
E. Where another agent or enterprise is debiting funds pursuant to an arrangement entered into with Me, You also affirm the same rights and undertakings explained in this policy to them.
F. I reserve the right to suspend or terminate any service or account, at My discretion, if payment is defaulted.
G. I 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. I reserve the right to inform or engage other service providers or credit watch monitoring services pursuant to payment defaults or ongoing defaults trends or payment-avoiding strategies employed where I deem it is appropriate.
I. I 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 Me.
J. I reserve the right to issue pro-rata or full refunds, or equivalent credit notes, in appropriate circumstances, at My own discretion. I offer such actions only in circumstances required by law, or when I determine for some reason to act beyond these requirements. You may have rights under law. Please retain proof of your agreement, e.g. your invoice, scope or quote if making enquiries regarding this.
K. Unless we have an established working relationship, payment terms are 50% deposit before commencement with the balance falling due 15 days from project completion. Once we get to know each other, terms may be revised.
15. Revisions, Adaptations and Versions
A. Where design, thematic, visual or any other undefined and/or non-objective matter is to be determined, I reserve the right to cease making revisions, adaptations or versions when I determine, at My discretion, that I have reasonable and sufficiently delivered on My 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 is one revision unit per 250 words. Unless otherwise stated, a single revision will equate to 15 minutes of labour by Myself or the appropriate person on My team, as determined by Me. Revisions or adaptations that are beyond or outside a project’s scope (or reasonable resource parameters as determined by Me) may be billed to You at the currently posted fee(s).
C. Where work has been awaiting your inspection for more than 7 days, I may need to review your details to effectively assist you in any requested revisions or consultation matters. I reserve the right to charge a time based review fee to re-orientate myself to the particulars of your project.
D. Additional fees on a timed basis will apply to revisions after a work is approved by you.
E. A work will be deemed as approved by you either when you a) indicate this is the case, in word or writing, b) that work is approved for publishing or appears published in any medium (for example, but not limited to website or print publications) or c) is sent by you (or is sent by me at your request) to a third party for any use.
F. When You send Me any feedback or suggestions about this site, My other sites or My business, You agree that I 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 Me. I 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
A. If I 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.
B. If I publish material submitted by You, any third party, or Myself 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.
C. If You submit material to any of My sites You grant, or warrant that the owner of such material has granted, to Me and My affiliates, third party content providers and licensors a world-wide, 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, trade marks 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 promotion of Me or My objectives).
D. If You submit material to any of My sites, You consent to Me and any person authorised by Me 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.
E. If You submit material to any of My sites, at My request and expense, You will execute and deliver to Me all such instruments and take such other actions as may be requested by Me to obtain the benefit of and perfect this grant of license and consent.
F. If I 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.
G. If You submit material to My site(s) for publication, You permit Me, 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 Me and that the views expressed are not necessarily Mine.
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 My control, are not monitored by Me, nor necessarily express views that are synonymous with Mine.
C. I do not make or infer any representations, opinions or recommendations about third party web sites or parties that may be linked to My web sites other than those clearly stated within My polices 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 Me, defend Me, and hold Me 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.
20. Pertaining to Work or Work elements provided by Me.
A. Images may be supplied directly by Me or under license from a third party. You agree to inform Me and seek legal release if You intend to use any such image supplied by Me for a different purpose. There may be no release or fee incurred, but You agree to check with Me to ensure Your use of the image is not in breach of a third party copyright.
B. I may use/display screenshots or reproductions of the Work created as a result of this Agreement. Display locations include (but is not limited to) My portfolio online or elsewhere. This link may include a hyperlink to Your website. This right to display includes a moral right to display Work in the form that I created it or intended it to be prior to alterations by You.
C. Where Work is displayed (online or elsewhere), or used by You in a way that would cause it to be reproduced or used as a model or stimulus for an equivalent or competitive project of any kind, You and I agree that when asked, You must properly identify Me as the creator of produced Work. You do not have a proactive duty to display My name together with Work, but You may not mislead others that Work was created by anyone other than Me.
D. Where Work is changed significantly by You or others, You and I agree that when asked, You must properly identify that though I was 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 Me was not altered by others.
E. Ownership of preliminary Work or sketches pertaining to design is retained by Me.
F. I may incorporate certain Designer Tools into the Work. In the event Designer Tools are incorporated into the Work, I grant You a royalty-free, perpetual, worldwide, non-exclusive license to use the Designer Tools to the extent necessary to use the Work. I retain all other rights in the Designer Tools.
21. Obligations and Disclaimer Concerning Legal and Professional Services Provided.
A. Where I provide a verbal or written report pertaining to a project or task, or I produce a document or proof a document, procedure or other thing or process, you acknowledge that I do not have professionally accredited and liable status within the professional areas you have engaged me. Words spoken or provided by me should not be taken as legal, business, taxation, accounting, marketing or other specialist area advice. The opinions expressed are made with due care, but may require further professionally vetting or adjustment to meet Your specific needs. All documents, including those of a legal nature, are provided with this status acknowledged and should be changed or replaced as directed by Your relevant legal counsel.
B. You authorise Me to provide and publish such words in the Work, prior to vetting by You.
C. I disclaim any liability connected to the use of services or resources 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.