Terms & CONDITIONS

Marketing Sweet - Terms of Service

"Acceptance Criteria" means the tests results by Marketing Sweet which are to be achieved in the course of the Acceptance Tests;

"Acceptance Tests" means the tests described by Marketing Sweet;

"Agreement" shall mean also interchangeably mean these Terms and Conditions together with the Proposal, Invoice, Quotation, Estimate, Document or Order, (provided in writing, by email, or electronic messaging), and Marketing Sweet's privacy policy and website terms of use agreements which are incorporated by reference and accessible at www.marketingsweet.com.au/privacy-policy and https://marketingsweet.com.au/terms-of-use, as sent to the Client by Marketing Sweet from time to time and/or any paperwork supplied by Marketing Sweet to the Client from time to time;

"Australian Consumer Law" means the Australian Consumer Law set out in Schedule 2 of the Competition & Consumer Act 2010 (Cth) as amended from time to time;

"Marketing Sweet" means Marketing Domain Pty Ltd (ACN 606 120 398) trading as Marketing Sweet (ABN 14 606 120 398) its successors and assigns or any person acting on behalf of and with the authority of Marketing Sweet and shall include Marketing Sweet's executors, administrators, employees and agents;

"Business Day" means a day on which the banks are open for general banking business in South Australia except Saturday, Sunday and public or statutory holidays;

"Bug" means a technical error on the website that causes the website to not function in the manner specified in the Proposal, Invoice, Quotation, or Estimate, or as agreed otherwise in writing between the Client and Marketing Sweet, and within the same delivery Environment (server/hosting/domain) that it was launched. These are limited to website code created by Marketing Sweet and does not include any issues arising from plugins, Services provided by a third party other than Marketing Sweet, or other third-party applications, third party platforms, software or products;

"Business Hours" means between the hours of 9.00am " 5.00pm (Australian Central Time) on a Business Day, Monday to Friday;

"Change in Control" " means as occurring if, in relation to a body corporate, an entity that controls the body ceases to control the body, or an entity that does not control the body comes to control the body;

"Client" means any person, organisation, entity and/or business entity named in the Proposal, Invoice, Estimate, Quotation, Document or Order, and if there is more than one, Client is a reference to each Client jointly or severally and shall include the Client's heirs, executors, administrators, successors and permitted assigns;

"Client Content" means any and all materials that are provided to Marketing Sweet by the Client for the provision of the Services;

"GST" means Goods and Services Tax payable under the GST Act;

"GST Act" means A New Tax System (Goods and Services Tax) Act 1999 (Cth);

"Intellectual Property" means know-how, systems, designs, manuals, trade secrets, copyright, trademarks, eligible layouts, wireframes, illustrations, graphics, icons, images, code, scripts, computer programs, databases, advertisements, technical drawings, software, domain names, business names and patents;

"Invoice" means the Invoice for payment provided by Marketing Sweet to the Client for any of the Services provided by Marketing Sweet;

"In-Scope Work" means work that has been expressly and specifically designated as being within the scope of the Services;

"Ongoing" means the provision of the Services for the term as outlined in the Proposal;

"One-Off" means the provision of a one-time and or ad-hoc Service and once the Service has been completed and provided to the Client no further Services are to be provided by Marketing Sweet unless otherwise provided for in this Agreement;

"Ongoing Support and Maintenance" means updating the content of the website as directed by the Client, maintaining and updating links, ensuring the Website remains compatible with software generally used to access the internet, and providing training and instruction in the use of the website upon request. Ongoing support and maintenance will be available during normal Business Hours;

"Out-of-Scope Work" means any work that is not In-Scope Work, including the work specifically described as being out of scope in any Proposal;

"Quote" means and shall include any Proposal, Variation, Quotation and or Quotation Agreement;

"Phishing Activity" means activity whereby an individual is induced into providing personal information for fraudulent purposes;

"Price" means the charges payable by the Client to Marketings Sweet for the Service(s) as specified in any Proposal, Variation and Invoice;

"Proposal" means any Quote for Services, Invoice, Estimate, Quotation, document or order or request for Services by the Client, and provided by Marketing Sweet from time to time;

"SEO" means Search Engine Optimisation;

"Services" means all Services or combination of Services, Goods, Equipment and Works, website development, design, hosting, and or branding, logo design, provision of style guide services as outlined in any Proposal, email hosting, website hosting, domain name registration, search engine optimisation (SEO), search engine marketing (SEM), display advertising, pay per click advertising, social media setup, social media advertising, ongoing support and maintenance, Google My Business, Google Analytics, Google Search Console, and any other service made available by Marketing Sweet on its website (www.marketingsweet.com.au) as supplied by Marketing Sweet to the Client at the Client's request from time to time and shall be interchangeable with each other, and as specified by and agreed between the parties;"

Interpretation

In this Agreement, unless the contrary intention appears:

(a) The clause headings are for ease of reference only and shall not be relevant to interpretation;

(b) A reference to a clause number is a reference to its subclauses;

(d) A reference to a person includes bodies corporate and unincorporated associates and partnerships;

(e) A reference to a subclause is a reference to a subclause of the clause in which that reference is made;

(f) Where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

(g) A reference to a Schedule includes a reference to any part of that Schedule which is incorporated by reference;

(h) Monetary references are references to Australian currency;

(i) Any reference to any person includes that person"s executors, administrators, heirs, agents, assigns or, being a company, Directors, employees, successors or permitted assigns;

(j) Words describing individuals include companies and bodies corporate and vice versa;

(k) In this agreement the words "includes", "including" or "such as" are not words of limitation, and when introducing an example, do not limit the meaning of the words to which the example relates to examples of a similar kind;

(l) Any reference in this agreement to a statutory provision shall include any subordinate legislation made from time to time;

(m) References in this agreement to statutory provisions shall be interpreted to mean references to those provisions as respectively amended or re-enacted prior to but not after the date of this agreement; and

(n) This Agreement is not to be interpreted against the interests of a party merely because that party proposed this document or some provision of it or because that party relies on a provision of this document to protect itself.

"Force Majeure" means an event or circumstance which is beyond the control and without the fault or negligence of the party affected and which by the exercise of reasonable diligence the party affected was unable to prevent provided that event or circumstance is limited to the following:

(a) Riot, war, invasion, act of foreign enemies, hostilities (whether war be declared or not) acts of terrorism, civil war, rebellion, revolution, insurrection of military or usurped power, requisition, or compulsory acquisition by any governmental or competent authority;

(b) Ionising radiation or contamination, radio activity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive assembly or nuclear component;

(d) An act of God, pandemic, epidemic, earthquakes, flood, tsunami fire, lightning, storm, explosion, celestial events, asteroid impact, comet impact, solar flare, electromagnetic pulse, coronal mass ejection, geomagnetic storm, magnetic pole reversal or other physical or natural disaster and

(e) Strikes at national level or industrial disputes at a national level, or strike or industrial disputes by labour not employed by the affected party, its subcontractors or its suppliers and which affect an essential portion of the works but excluding any industrial dispute which is specific to the performance of the works or this contract strike, lockout or other interference with work, blockade, disturbance, , governmental or quasi-governmental restraint, expropriation prohibition intervention direct or embargo, unavailability or delay in availability of equipment or transport, inability or delay in obtaining governmental or quasi-governmental approvals consents permits licenses authorities or allocations, and any other cause whether of the kind specifically enumerated above or otherwise which is not reasonably within the control of the party affected.

"Notice" includes any approvals, consents, instructions, orders, directions, statements, requests and certificates or other communications that may be given, or are required to be given, under this Agreement. If a notice delivered by hand, email or sent by facsimile is delivered or sent (as the case may be) after 5pm on any day, the notice will be deemed to have been received at the commencement of business on the next Business Day; and

"Variation" is a change to the Service(s) or the method of carrying out the Service(s) including, but not limited to, any Variation as a result of additional work required due to hidden or unidentifiable difficulties or as a result of increases to Marketing Sweet in the cost of labour and or increases in costs by contractors, licensees or Third Party Providers including third party software providers, hosting providers, licences, plugins, or any other tools, technology, components that Marketing Sweet requires to deliver the Service(s) and may also include removing some of the Service(s). A Variation will often involve a change to the Price.

1. QUOTATION & PROPOSAL

(a) Marketing Sweet shall specify in the Proposal the Services required to carry out the Client's instructions and outline an estimate of Marketing Sweet's fees for the performance and delivery of such Services.

(b) Marketing Sweet need not supply or provide the Services until the Client accepts the Proposal and this Agreement in accordance with clause 3 and payment is received in clear funds by Marketing Sweet.

(d) Unless otherwise stated, the Price for the Services is GST exclusive.

(e) Unless otherwise stated, Marketing Sweet agrees to provide the Services to the Client on a non-exclusive basis and shall only be required to provide additional Service(s) if agreed in writing between Marketing Sweet and the Client.

2. PRICE

(a) The Price payable by the Client to Marketing Sweet for Service(s) is the Price specified in the Proposal, which can be varied in accordance with this Agreement.

(b) The Price payable will not include the cost of any exclusions that are listed in the Proposal, variations, and will not include the cost of any additional Services whatsoever that are not specifically outlined in the Proposal.

(c) Marketing Sweet reserves the right to change the Price if a Variation to Marketing Sweet's Proposal is requested or where a genuinely incorrect Price was provided in the Proposal.

(d) Marketing Sweet reviews its prices on 1 July of each financial year and reserves the right to increase the Price for any Service(s) by reference to the Consumer Price Index or Producer Price Index (whichever is higher) and shall give 30 days of notice to the Client before any increase applies to the Service(s).

VARIATION

(e) Any Variation will be charged for based on Marketing Sweet's Proposal and will be shown as a Variation on the Invoice.

(f) Any Variation will be charged for on the basis of Marketing Sweet's Quotation and will be shown as variations on the Invoice.

(g) Payment for any Variation must be made in full at their time of completion.

TIME FOR PAYMENT

(h) Time for payment for the Service being of the essence, the Price will be payable by the Client in advance, in full, upon completion of the Service or issuance of an Invoice, as agreed.

(i) At Marketing Sweet's sole discretion, time for payment may alternatively be:

a. 7 days from the date of any Invoice provided;

b. Thirty (30) days following the end of the month in which a statement is posted to the Client's registered address or address for notices;

c. By Direct Debit;

d. By way of instalments/progress payments as agreed in writing between the Parties to this agreement; or

e. Failing any notice to the contrary, the date which is fifteen (15) days following the date of any Invoice given to the Client by Marketing Sweet.

PAYMENT METHOD

(j) Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to three percent (3%) of the Price or any other amount Marketing Sweet is charged by a payment processor) or by any other method as agreed to between the Client and Marketing Sweet.

(k) If payment by any of these methods incurs fees, then these fees will be paid by the Client and will be in addition to the amount payable as outlined on any Invoice issued by Marketing Sweet to the Client.

(l) Receipt by Marketing Sweet 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 Marketing Sweet's rights and ownership in relation to any Service(s), and this Agreement, shall continue.

(m) All reoccurring and regular payments for Service(s) are only accepted as direct debit or scheduled credit card payments through Ezidebit or Stripe as organised by Marketing Sweet (Direct Debit).

(n) Where the Client agrees to pay for the Service(s) by way of Direct Debit, the Client agrees that cancelling any Direct Debit authorisation or chargeback constitutes a breach of this agreement."

GST & TAX

(o) Unless otherwise stated the Price does not include GST.

(p) In addition to the Price the Client must pay to Marketing Sweet an amount equal to any GST Marketing Sweet must pay for any supply by Marketing Sweet under this or any other agreement for the sale of the Service.

(q) The Client must pay GST, without deduction or set off any other amounts, at the same time and on the same basis as the Client pays the Price.

(r) 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.

3. ACCEPTANCE

(a) The Client is taken to have expressly accepted and is immediately bound, jointly and severally, by the terms and conditions of this Agreement and any other terms as incorporated into this Agreement from time, if the Client accepts the Proposal provided contemporaneously with this Agreement by:

a. the Client returning any Proposal acceptance to Marketing Sweet with the Client's signature;

b. a written acceptance, whether by post, email correspondence, fax or other means which states that the Client accepts the Proposal;

c. payment of any deposit or amount of money as specified in the Proposal to Marketing Sweet; or

d. the Client verbally instructing Marketing Sweet to commence providing the Services as per the Proposal.

(b) In accepting these terms and conditions, the Client warrants that:

a. it has the power to enter into this Agreement;

b. it has obtained all necessary authorisations and consents (including but not limited to from its employer or any other party it purports to represent or act) to allow it to enter into this Agreement;

c. it is not insolvent;

d. it has sufficient mental and financial capacity; and

e. it has received independent legal advice and that this agreement creates binding and valid legal obligations on it.

(c) No order or request for any Service(s) shall be binding on Marketing Sweet unless and until Marketing Sweet has been accepted or confirmed the request or order in writing and until the payment of any money requested by Marketing Sweet is paid in clear funds into Marketing Sweet's designated bank account.

(d) Marketing Sweet and the Client agree that the terms of this Agreement will not be finalised until:

a. the Client has paid Marketing Sweet all amounts owing to Marketing Sweet; and

b. the Client has met all of its other obligations to Marketing Sweet.

4. DEPOSITS

(a) A minimum deposit may be specified in the Proposal, in the sole and absolute discretion of Marketing Sweet, which will be payable by the Client within thirty (7) days of the issue of any Invoice for the same.

(b) This deposit is non-refundable unless otherwise specified in this Agreement.

(c) Marketing Sweet will not provide the Service(s) until such time as the deposit or any other amount as indicated in any Proposal is received in full as cleared funds by Marketing Sweet.

5. PAYMENT FOR WEBSITES

(a) The Client agrees to pay a 20% deposit to Marketing Sweet before Marketing Sweet provides the Services to the Client in accordance with clause 4 of this Agreement.

(b) An Invoice will be issued for 50% of the price at the completion of the design phase.

(d) "If the Client disputes the whole or any part of the amount claimed in an Invoice submitted by Marketing Sweet pursuant to this agreement, the Client will pay the undisputed portion on the due date.

(e) "If it is subsequently resolved that a further amount is payable, the Client will pay that amount together with interest at the rate of 6.5% per annum.

(f) Marketing Sweet makes no warranty that a website built by Marketing Sweet will generate any increase in sales, business activity, profits or any other form of improvement for the Client's business or any other purpose.

(g) It is a material term of this agreement that where the Client enters into a subsidised website and marketing program with Marketing Sweet, that the Client uses Marketing Sweet's third-party hosting service.

(h) Where the Client enters a subsidised website and marketing program, the Client agrees to bound to these additional terms:

a. The term of the agreement is for 12 months or as otherwise stated in any Proposal;

b. That the cost to purchase the website outright is as stated in any Proposal; and

c. That if the Client cancels the agreement before the expiration of the 12 month term or other term stated in the Proposal, the Client agrees to pay any outstanding amount on a pro-rata basis in addition to other fees, or costs under this Agreement.

6. PAYMENT FOR BRANDING AND LOGO DESIGN:

(a) Marketing Sweet will issue an Invoice to the Client for all branding and logo work which Invoice will be payable within seven (7) days;

(b) All branding and logo design Services are to be paid in full by the Client to Marketing Sweet before any logos, branding and style guides etc are delivered to the Client.

(c) "If the Client disputes the whole or any part of the amount claimed in an Invoice submitted by Marketing Sweet pursuant to this agreement, the Client will pay the undisputed portion on the due date.

(d) "If it is subsequently resolved that a further amount is payable, the Client will pay that amount together with interest at the rate of 6.5% per annum.

7. PAYMENT FOR HOSTING, ONGOING SUPPORT AND MAINTENANCE:

(a) Website hosting fees may either be charged by an annual fee to the Client which will be invoiced to the Client by Marketing Sweet one (1) months in advance or as otherwise stated in any Proposal.

(b) The Client will be invoiced thirty (30) days in advance for payment of hosting, ongoing support and maintenance fees by Marketing Sweet or as otherwise agreed in any Proposal.

(d) "If it is subsequently resolved that a further amount is payable, the Client will pay that amount together with interest at the rate of 6.5% per annum.

(e) "If the Client does not pay the Invoice for hosting, ongoing support and maintenance, Marketing Sweet reserves the right to not provide hosting, ongoing support and maintenance to the Client and the Client forever holds harmless and indemnifies Marketing Sweet for any losses howsoever incurred by the Client as a result of Marketing Sweet suspending the Service(s) the Client.

8. PAYMENT FOR SEARCH ENGINE, SOCIAL, DISPLAY & VIDEO MARKETING:

For pay per click (PPC) advertising on the Google Ads, Snapchat Microsoft, LinkedIn, TikTok, Meta Ad Network (including partner websites, Instagram, display advertising, in-app advertising, Gmail, YouTube and new ad campaign formats or platforms as and when released " collectively referred to as the "Third-Party Provider(s)"), the Client agrees and acknowledges that:

(a) A setup fee must be paid before Marketing Sweet delivers the Service(s) in accordance with clause 4 of this Agreement and will be specified on the relevant Proposal or Invoice provided by Marketing Sweet to the Client at the Client's request.

(b) The Client be invoiced thirty (30) days of digital management fees in advance by Marketing Sweet or as otherwise agreed in any Proposal.

(c) The Client will supply their credit card details to the relevant advertising network provider or may alternatively pay such an amount the Client wishes to spend on advertising in advance.

(d) A Third-Party Provider may from time to time exceed the Client's agreed monthly budget and daily budget, and that the Client, is solely responsible for payment of digital advertising fees charged by such Third-Party Provider.

(e) The Client's campaigns will not commence until a valid payment method is added or otherwise provided to the relevant Third-Party Provider.

(f) Any delay by the Client in providing and maintaining a valid payment method to the relevant Provider does not negate the Client's obligation to pay Marketing Sweet's Invoice as and when they become due.

(g) The Client's obligations under clause 8 in relation to payment of digital advertising fees to the Third-Party Provider will survive termination, expiration or cancellation of this Agreement and it is expressly agreed by the Client that Marketing Sweet has no liability or responsibility for the payment of the Client's advertising spend or any other fee to a Third-Party Provider.

(h) "If the Client disputes the whole or any part of the amount claimed in an Invoice submitted by Marketing Sweet pursuant to this Agreement, the Client will pay the undisputed portion on the due date.

(i) "If it is subsequently resolved that a further amount is payable, the Client will pay that amount together with interest at the rate of 6.5% per annum.

(j) Marketing Sweet makes no warranty that social, display and video marketing will generate any increase in sales, business activity, profits or any other form of improvement for the Client's business or any other purpose.

9. PAYMENT FOR SEARCH ENGINE OPTIMISATION

For search engine optimisation on any search engine, the Client agrees and acknowledges that:

(a) A setup fee must be required before Marketing Sweet delivers the Service(s) accordance with clause 4 of this Agreement and will be specified on the relevant Proposal or Invoice provided by Marketing Sweet to the Client at the Client's request.

(b) The Client will be invoiced for thirty (30) days of search engine optimisation in advance by Marketing Sweet or as otherwise agreed in any Proposal.

(d) "If it is subsequently resolved that a further amount is payable, the Client will pay that amount together with interest at the rate of 6.5% per annum.

(e) Marketing Sweet makes no warranty that SEO will generate any increase in sales, business activity, profits or any other form of improvement for the Client's business or any other purpose.

10. GENERAL TERMS OF PAYMENT APPLICABLE TO ALL CLIENTS:

(a) Marketing Sweet may, in its sole and absolute discretion, outline different terms for payment for the Client in the Proposal and if the terms for payment outlined in any Proposal are inconsistent with the terms for payment outlined in this Agreement, then the terms for payment outlined in the Proposal will prevail.

(b) In the absence of any payment terms, Invoices issued by Marketing Sweet are to be paid within seven (7) days of the date of the Invoice.

(c) Marketing Sweet can, in its sole and absolute discretion, refuse to provide any Service(s) to the Client until payment in full is received.

(d) The Client acknowledges and agrees that Marketing Sweet may, at its sole and absolute discretion, apply any amounts received from the Client towards any amounts that may be owing from the Client to Marketing Sweet in any such order as is determined by Marketing Sweet.

(e) The Client shall not be entitled to set off against, or deduct from the Price and any Invoice, any sums owed or claimed to be owed to the Client by Marketing Sweet nor to withhold payment of any Invoice or payment of the Price because part of that Invoice or Price is in dispute.

(f) Marketing Sweet may, without the consent of the Client, engage individuals on a sub-contract or consultancy basis, whether or not operating under a corporate structure, to assist in the provision of Service(s) pursuant to this Agreement and the Client has no authority to give any instructions to any of Marketing Sweet's sub-contractors, contractors or consultants without Marketing Sweet's express permission.

(g) The Client acknowledges that Marketing Sweet does not provide any professional advice or purport to provide any professional advice in relation to any Service(s) and that the Client is solely responsible for ensuring its request for Service(s) comply with all local, State, Territory and International rules, standards, treaties, regulations and standards (including but not limited to industry specific advertising standards or regulations).

Out of Scope Work

(h) Notwithstanding the Price for the Service(s), the Client will pay Marketing Sweet an hourly rate of $150.00 + GST (the Out-of-Scope Rate) for any Out-of-Scope Work.

Out of Scope Rate

(i) Out-of-Scope Rates shall be proportionately charged for work involving periods of less than one hour and structured in 30-minute units, with 2 units per hour " e.g., the time charged for an attendance of up to 30 minutes will be 1 unit and the time charged for an attendance between 30 and 60 minutes will be 2 units.

11. DEFAULT IN PAYMENT

(a) If the Client fails to make any payment for the Services when payment falls due, then the Client may, without prejudice to any other right or remedy of Marketing Sweet:

a. to pay interest at a rate of 6.5% per annum or 2.5% per month plus the rate set by the Reserve Bank of Australia (whichever is higher) cumulative which is to be calculated on a day-to-day basis on any monies owed to Marketing Sweet;

b. to pay pre and post judgment interest;

c. to pay an administrative fee of $100.00 plus GST, as may be varied in accordance with clause 43, for each time Marketing Sweet has to follow up with the Client for late payment; and

d. to pay any costs, expenses or losses incurred by Marketing Sweet as a result of the Client's failure to pay all sums outstanding as owed including, but not limited to, debt collection, legal costs, filing fees, court fees, and disbursements incurred in attempting to recover and subsequently enforcing payment on a solicitor and own client basis.

(b) If Marketing Sweet has produced a website for the Client, hosts a website for the Client (including the Client's registered domain name) or provides email hosting to the Client, then Marketing Sweet can, in its sole and absolute discretion, suspend or terminate these Service(s) if any Invoice is outstanding for a period of seven (7) days after Marketing Sweet provides the Client with a final written notice for payment to be made in accordance with clause 13.

(c) Marketing Sweet will not reinstate any Service(s) until payment is received in full by Marketing Sweet (for all outstanding Invoices plus any reasonable fees imposed under this clause 11) plus a reinstatement fee of $150.00 plus GST, as may be varied in accordance with clause 43, for the administrative costs of reinstatement of these services.

(d) Marketing Sweet does not accept any liability, costs, losses or damages that may be incurred by the Client as a result of this clause 11 being invoked.

(e) The parties agree that such amounts are not a penalty, but a true measure of the damages incurred by Marketing Sweet and also reflect the genuine time and effort required to re-instate the Service(s) and divert internal resources to follow up payment.

(f) Payments received from the Client will be credited first against any account keeping fees and interest, and all such fees shall be payable by the Client on demand from Marketing Sweet.

12. VARIATIONS

(a) Any oral and/or written variations sought by the Client relating to Services in progress and/or to be undertaken by Marketing Sweet are subject to approval by Marketing Sweet in writing.

(b) Marketing Sweet will be entitled to vary any Proposal provided to the Client if:

a. the Client requires a Variation, orally or in writing, which is accepted by Marketing Sweet;

b. the Client provided information and or Client content to Marketing Sweet for the purposes of the Proposal which is incorrect, inaccurate, inadequate or incomplete (including but not limited to information or directions provided by employees and consultants);

c. the Client requests that Marketing Sweet provides additional services (being services other than the Services);

d. any cause beyond Marketing Sweet's control causes the necessary Variation;

e. the Client is in breach of this Agreement and any other terms or conditions which are incorporated by reference and as amended from time to time; or

f. Marketing Sweet cannot provide or complete the Services, in which case the Client may be liable to pay additional costs as a result of any Variations, if Marketing Sweet in its opinion considers such Variations to be essential.

(c) Marketing Sweet will give the Client a written Variation document detailing the Service, the Price, the estimated time to undertake the Variation, and the likely delay, if any and require written acceptance of the Variation before commencing work on the Variation.

13. CANCELLATION

(a) Marketing Sweet may cancel any Service(s) under the Agreement by giving written notice to the Client and at any time before any money is paid by the Client under clause 4.

(b) Marketing Sweet may cancel any Service(s) under this Agreement if the Client breached any term of this Agreement and Marketing Sweet has given the Client written notice of the breach providing them seven (7) days to remedy the breach and the Client has failed to remedy the breach within this timeframe, Marketing Sweet can cancel its obligation to supply the Services remaining under the Agreement by giving written notice to the Client.

a. If the Client is declared bankrupt;

b. If the Client has a receiver, agent or manager appointed for all or substantially all of the property of the Client;

c. If the Client fails to notify the Marketing Sweet in writing of any Change in Control of the Client (or of the ultimate holding company of the Client) within 30 days prior to that change occurring (Change in Control Notice).

d. If the Client enters into an arrangement or composition with its creditors;

e. If the Client becomes insolvent within the meaning of section 95A of the Corporations Act 2001 (Cth);

f. If the Client fails pay for the Service(s) by the due date and such amount remains unpaid for 7 days after receiving notice from Marketing Sweet of such non-payment;

g. If Marketing Sweet reasonably suspects fraud or illegal activity under State, Commonwealth or International Law or other misuse by the Client or any person in connection with the Client with the Services;

h. If the Client engages in any conduct that threatens, prejudices or disparages Marketing Sweet or its customers, contractors, sub-contractors, employees, or suppliers;

i. If the Client engages in any conduct that may cause Marketing Sweet to breach any obligation that Marketing Sweet owes to a third party including but not limited to any Third-Party Provider, website hosting provider, email hosting provider, and domain name registrar;

j. If Marketing Sweet is required to do so under a law or to comply with an order, instruction or request of a Government Agency, an emergency services organisation or any other competent authority;

k. If the Client engages or otherwise contracts with another individual, company or entity to provide identical or similar Service(s) to the Client without Marketing Sweet's express consent; or

l. Attempts to solicit Marketing Sweet's staff, employees, officers, agents, contractors, sub-contractors, suppliers to provide the Services.

(d) "Marketing Sweet shall not be liable for any loss or damage from the cancellation of the Agreement under this clause.

The Client:

(e) May cancel its obligations under the Agreement by giving written notice to Marketing Sweet, at any time before the deposit is paid by the Client under clause 4; and

(f) May immediately cancel the Agreement if Marketing Sweet:

a. is declared bankrupt; or

b. has a receiver, agent or manager appointed for all or substantially all of the property of Marketing Sweet; or

c. enters into an arrangement or composition with its creditors; or

d. becomes insolvent within the meaning of section 95A of the Corporations Act 2001 (Cth).

(g) If the Client cancels the Agreement outside of this clause 13 (e) " (m), then the Client must reimburse Marketing Sweet for any costs, expenses or losses incurred by Marketing Sweet up to the date of cancellation plus any costs, losses or expenses incurred as a result of the Client(s) cancellation in addition to as provided for in this Agreement and any Proposal.

(h) The Client must make payment for such cancellation costs incurred within fourteen (14) days from receipt of an Invoice from Marketing Sweet detailing such costs.

(i) For month-to-month Services;

a. The Client may cancel an ongoing month-to-month service by providing Marketing Sweet with thirty (30) days of notice.

b. If the Client fails to provide the required notice of cancellation, the Client is liable for payment of the Invoice and is deemed to have accepted the following month of service to roll-over.

(j) If the Client cancels any Service before the expiration of a fixed term or period, a contract break fee will also apply. The additional contract break fee will be calculated as the smaller amount of:

a. The remaining balance on the contract, which is payable to cover the costs incurred by Marketing Sweet, including but not limited to setup costs, which have been amortized over the term of the Agreement; or

b. One and half months of the client's current monthly contract rate.

(k) Marketing Sweet retains the right to remove any pages and or blogs that were written & published as part of any SEO or Service if the Client cancels within twelve (12) months of entering into this Agreement.

(l) At the end of the initial term of the contract unless otherwise specified, the contract will automatically renew for successive periods of 12 months, unless either party provides written notice of termination at least 30 days prior to the end of the then-current term.

(m) Any renewal of the Agreement will be subject to the then-current terms and conditions, including and changes, Variations or updates made by Marketing Sweet, unless otherwise agreed in writing by both parties.

14. SUSPENSION

(a) In addition to Marketing Sweet's rights under this Agreement, Marketing Sweet may, upon seven (7) days of notice, without liability and with immediate effect suspend any Service(s) for as long as Marketing Sweet, acting reasonably, consider necessary:

a. if doing so is necessary to allow Marketing Sweet or a third-party supplier to repair, maintain or service any part of the Marketing Sweet network or Third-Party Provider or third party software provider used to supply the Services;

b. problems are experienced interconnecting the Marketing Sweet network with any or Third-Party Provider or third-party software provider; and

c. if Marketing Sweet believes it is necessary to do so to comply with any law, to protect any person, equipment or Marketing Sweet's network, or to enable authorised person to attend to any emergency or to enable Marketing Sweet to comply with any of its obligations under any other agreement.

(b) If a Service is suspended before the end of the term pursuant to clause 14, then the Client must pay to Marketing Sweet an amount in accordance with clause 11.

15. FOLLOWING CANCELLATION

(a) If required by Marketing Sweet, then upon cancellation of the Services for any reason, Marketing Sweet, its agents or employees shall have reasonable access any premises or site related to the provision of the Service(s) if applicable for the purpose of disconnecting, dismantling and removing the component related to the Service(s) and any of Marketing Sweet's equipment, and the Client shall render all reasonable assistance to Marketing Sweet to enable it to do so.

(b) Cancellation of the Agreement shall be without prejudice to the right of Marketing Sweet to receive any amounts which may have become due for payments prior to such cancellation but which have not been paid.

a. Each party must, on request by the other party, immediately return or destroy the other party"s Confidential Information, except to the extent that it is required by law to retain the other party"s Confidential Information;

b. Marketing Sweet may immediately stop supplying to the Client the Services;

c. Unless otherwise permitted by Marketing Sweet in writing the Client must immediately stop using the Service(s); and

d. Unless the Agreement expressly states otherwise, each persons" accrued rights and obligations are not affected.

The clauses of the Agreement which are by their nature intended to survive cancellation, expiration, or termination until all monies owing to Marketing Sweet are paid in full and all of the Client's obligations under this Agreement are fulfilled include clauses 5 (payment for websites), 6 (payment for logo designs), 7 (payment for support and maintenance), 8 (payment for search engine, social, display and video marketing), 9 (payment for search engine optimisation), 10 (general terms of payment), 11 (default in payment), 22 (limitation of liability), 27 (indemnity), 31 (ownership) 36 (confidentiality), 37 (privacy), 39 (guarantee), 42 (intellectual property) and 44 (data-security), 45 (non-disparagement) and 48 (non-solicitation).

16. WEBSITE DEVELOPMENT SERVICES

(a) Any website created by Marketing Sweet:

a. Will be compatible with most popular current browsers and resolutions at the time of development;

b. Will be tested as compatible to the latest version of Mac and PC operating systems at the time of development;

c. When viewed on older systems may be different and Marketing Sweet takes no responsibility whatsoever in ensuring that websites are viewable on old or unsupported browser(s);

d. Will support the latest generation of iPad, iPhone and Google Chrome mobile browser at time of development; and

e. Will be responsive to work on both desktop and popular devices at the time of development.

(b) Marketing Sweet does not guarantee that the website will be supported on all mobile devices only those which are popular at the time of development such as iPhone and iPad.

(c) Website template design proofs will be supplied at desktop screen resolution and unless otherwise specified the layout will be adapted to other screen sizes at Marketing Sweet's sole and absolute discretion. Specific designs for other screen sizes will be available at an extra cost to the Client.

(d) The number of pages included as part of the website being produced by Marketing Sweet for the Client will be outlined in the Proposal and if the Client requires more pages than the number outlined in the Proposal then this will be at the rate per page outlined in the Proposal for each additional website page.

(e) Any payment portals on the website produced as part of the Services will be outsourced to third party providers such as PayPal, and the Client agrees to accept any and all terms and conditions that may be imposed by these third parties.

(f) At the completion of the development phase, Marketing Sweet will provide the Client with a preview link to review the website for Acceptance Testing. The website will not go live until such time as full payment is received in clear funds by Marketing Sweet from the Client for all amounts outstanding and the Client confirms their acceptance of the website, subject to clause 33.

(g) Marketing Sweet accepts no responsibility for websites which do not display correctly in new versions of browsers or screen resolutions released after the website is completed and Marketing Sweet reserves the right to issue a Proposal or Variation for any work required to change the website design or code in the future to work with updated software.

(h) Plugins used on the website are generally created by third parties and unless specified otherwise the styling of these plugins will remain at default. As the plugins were not created by Marketing Sweet, Marketing Sweet does not guarantee that they will function as intended for an indefinite period of time.

(i) Plugins installed by the Client may conflict with the website developed by Marketing Sweet and cause bugs or unexpected errors to occur. Where in the opinion of Marketing Sweet such a bug or error is caused by a plugin installed by the client or a third party other than the parties to this agreement, the Client accepts liability for resulting damages, bugs, outages and agrees to indemnity Marketing Sweet if such events adversely affect Marketing Sweet.

(j) Where approval deadlines apply, the Client agrees to adhere to these deadlines.

(k) Marketing Sweet accepts no liability for loss or damage caused by the Client's delay in relation to the provision of any Service(s) under this Agreement.

(l) The Client is solely responsible for the maintenance and technical upkeep of the Elementor Pro plugin or any other plugin (including premium plugins) that are required for the maintenance and operation of the Client's website from time to time. Marketing Sweet will not be held liable for any interferences to the Service, bugs or downtime caused by any plugins including where a developer of any plugin ceases to update or otherwise update the plugin.

(m) Once engaged, Marketing Sweet will provide the designs to the Client and will undertake any required changes on up to two" (2) occasions.

(n) Any further revisions may incur additional fees at Marketing Sweet's sole discretion and may constitute a Variation.

(o) Once approved by the Client, any further changes or Variations requested will be considered outside of the original Proposal and further fees will be applied.

(p) Where approval deadlines apply, the Client agrees to adhere to these deadlines. Marketing Sweet accepts no liability for loss or damage caused by the Client's delay.

17. SEO ON WEBSITES DEVELOPED BY MARKETING SWEET

(a) The following SEO services may be provided to the Client at the Client's request and include but are not limited to:

a. generating key words and phrases in search engines which may act to assist with a website"s discoverability;

b. performing an initial site audit to understand the issues the Client's site faces;

c. performing a competitor"s advantage audit and strategise unique search engine optimisation and placement strategy in an attempt to achieve top ranking for the Client's website;

d. optimisation of the content on the Client's web site so that the Client's web site has the appropriate keyword density as well as easy to understand and descriptive language that speaks to the Client's target audience;

e. deployment of offsite strategy including thematically relevant link building and guest posting; and

f. monthly reporting via Google Analytics (only if Client's provides access to this service or requests that Marketing Sweet sets this service up for the Client).

(b) The following limited SEO functions may be built into websites developed by Marketing Sweet at the Client's request:

a. Engine friendly links activated in Content Management System ("CMS");

b. Website tracking by Google;

c. Submission of the website to Google;

d. Addition of Extensible Mark-up Language ("XML") sitemap created;

e. Google Analytics;

f. Google Search Console;

g. Google Ads conversion tracking;

h. Heatmaps; or

i. Behaviour analytics tools;

(c) Marketing Sweet does not guarantee that the Client's website will appear on the first page of Google, or that the Client will notice an increase in its business, website traffic, turnover, phone calls, emails, enquiries or other leads.

(d) If Marketing Sweet is rebuilding a website that previously had SEO works undertaken by a third party, Marketing Sweet does not guarantee that its SEO work will carry over to the new website and the Client may require SEO works to be redone by the third party at the Client's own cost.

(e) The Client acknowledges that Google and other search engines use a proprietary ranking algorithm to place websites on the respective search engine and that Marketing Sweet is unable to affect the respective search engine"s algorithm or rank a website higher in search results.

(f) The Client also acknowledges that Google frequently updates the search algorithm, which may have varying effects on Marketing Sweet's SEO Service and the Client's website rankings. For the duration of the agreement, Marketing Sweet will do all reasonable things to rectify or amend the SEO to align with Google"s new or updated requirements, however, makes no guarantees during times of change. In all such circumstances, Marketing Sweet will continue to inform and update the Client regarding the changes.

(g) If the Client's website receives a penalty from Google, either automatically or manually, it may be necessary for the Client to change domains or follow any other suggestion given to it by Marketing Sweet in order to rectify this penalty.

(h) If Marketing Sweet makes a recommendation and the Client chooses not to accept it, the Client accepts responsibility for any loss in website traffic including clicks, impressions, click through rates, conversions, revenues and search engine rank positions.

18. WEBSITE/EMAIL HOSTING

(a) The Client agrees and acknowledges that website hosting may at Marketing Sweet's discretion be provided by a trusted thirty party and the Client agrees to be bound by their respective terms and conditions which are available on request.

(b) For services relating to Website Design & Hosting, Marketing Sweet agrees to design and develop a website or landing page for the Client, in accordance with the Proposal, and/or to host the same for the Client.

(c) Such Services require a one-off payment by the Client in relation to the design, and/or an annual hosting fee. The hosting fee and any related transfer fees are non-refundable. Marketing Sweet will provide 7 days of notice at the end of the period for the next annual payment to be applied.

(d) Hosting fees must be paid prior to the commencement of the Service(s) and, upon renewal, within 7 days of the relevant Invoice being received or by the date of the Invoice, whichever is later. If the Client fails to comply with this clause, Marketing Sweet reserves the right to suspend or cancel all hosting services.

(e) Hosting services may be cancelled by the Client at any time; however, cancellation will not negate liability to any amount of money that become due prior to or in the course of cancellation.

(f) Where maintenance including backups, rollbacks, updates or server replacements are required, the Client accepts that this may cause scheduled or unscheduled downtime for the website.

(g) For any scheduled maintenance, Marketing Sweet will endeavour to provide no less than 24 hours of notice to the Client of the maintenance, and the cause for it.

(h) In circumstances where unexpected maintenance is required, Marketing Sweet will take all reasonable steps to notify the Client as soon as possible, and to deliver the Service(s) in a timely manner.

(i) Marketing Sweet accepts no liability for losses or damages arising from any periods of suspension of hosting due to maintenance, downtime (whether expected or unexpected) or required updates.

(j) The Client acknowledges and agrees that website hosting and any Content uploaded, stored, published and displayed on the website(s) are in compliance with this agreement and all applicable laws, including laws of the jurisdiction where the Service or Content is uploaded, hosted, stored, accessed or used.

(k) The Client shall implement any restrictions necessary in order to prohibit use of the Services by any third party or in any jurisdiction, as required to comply with such laws.

(l) The Client agrees to notify Marketing Sweet before installing any third-party plugins and granting access to the website to any other individual or organisation.

(m) Marketing Sweet also accepts no responsibility for any website hosting downtime including malware, denial of service (DOS), distributed denial of service (DDOS), or misuse of website hosting resources by the Client, the Client's end users, staff, contractors, consultants or customers or any third party accessing the Client's website.

19. MAINTENANCE AND ONGOING SUPPORT

(a) If, as part of the Services, Marketing Sweet is to provide the Client with maintenance and ongoing support then:

a. Marketing Sweet will provide the Client with a license, for the term of any maintenance and ongoing support being provided, to use framework, plug-ins and e-commerce configurations for the purpose of operating the website produced by Marketing Sweet;

b. Marketing Sweet will only provide ongoing support and maintenance for websites built by Marketing Sweet;

c. The Client for the period of ongoing support provided will have unlimited access to telephone support during Business Hours subject to Marketing Sweet's fair use policy.

d. Any telephone support that is required by the Client after this time will be at the sole and absolute discretion of Marketing Sweet and will be charged at the hourly rate of $150.00 per hour plus GST, as may be varied in accordance with clause 43;

e. As part of the ongoing support and maintenance Marketing Sweet will provide the Client with ongoing technical back end maintenance however if the Client requires updates that fall outside of this scope to the website then these will be charged to the Client by Marketing Sweet as a Variation under clause 12 at Marketing Sweet's hourly rate of $150.00 plus GST, as may be varied in accordance with clause 43; and

f. Bugs will be fixed at no charge to the Client during the period of ongoing support and maintenance except where Bugs are caused by any party other than Marketing Sweet (for example, employees, contractors, consultants, other service providers).

(b) Maintenance and ongoing support do not include Marketing Sweet remedying any issues which arise from user error or external factors which include but are not limited to malicious attacks on the website (hacking, click-jacking, cross-site scripting attacks, hijacking etc.), plugins not operating as intended or external hosting services or third-party suppliers or service providers.

(c) Marketing Sweet does not guarantee that the website will function as intended if plugins are installed by someone outside of Marketing Sweet and time spent troubleshooting these issues will not be covered in the maintenance and ongoing support package and will be charged as a Variation under clause 12 of this Agreement.

(d) The maintenance and ongoing support period will commence from the time that the website is uploaded for review and not from the date on which the website became live.

(e) The fee for maintenance and ongoing support will be reviewed semi-annually and may increase to provide for additional incurred by Marketing Sweet.

20. DOMAIN NAME SERVICES

(a) Marketing Sweet will register any domain name requested by the Client, subject to availability, and this will be included in the costs outlined in any Proposal.

(b) The Client is solely responsible for ensuring its desired domain name does not infringe the legal rights including any intellectual property of any third party (including any Commonwealth, State or Territory body) and agrees to abide by the relevant domain name registration authority"s terms and conditions as in place from time to time and indemnifies Marketing Sweet from any losses resulting out of its failure to do so.

(c) If hosting fees are not paid by the Client then Marketing Sweet gives no guarantee that the Client's registered domain name will be renewed for any further term and it will be at the Client's own risk if someone else registers this domain name as a result of the Client's failure to pay the hosting fees to Marketing Sweet when they fall due, including registration of the same by Marketing Sweet should it elect to do so.

(d) The Client expressly acknowledges that Marketing Sweet does not undertake any branding clearance or trademark clearance and does not purport to provide any professional advice as to the register ability of any domain names or the likelihood of such registration conflicting with any registered and unregistered (common law) trademarks.

(e) The Client expressly acknowledges that domain names are leased and not owned " if the lease on a domain name is not renewed, the name can be registered by another individual or organisation and Marketing Sweet is not responsible and shall forever be released from any liability and held harmless by the Client for any failure to renew a domain name.

(f) For the avoidance of any doubt, the Client acknowledges it is solely responsible for any renewal notices, maintaining the accuracy of domain name records and complying with any applicable terms and conditions, rules or policies as stipulated by the Internet Corporation for Assigned Names and Numbers (ICANN), au Domain Administration Limited and any other equivalent bodies which regulate the licensing, assignment, and leasing of domain names across any given top level domain extension.

21. CYBER SECURITY

(a) Marketing Sweet provides reasonable steps to provide security to protect cyber hacking (for either website or email hosting) as part of the Services, however Marketing Sweet will not be held liable for any loss or damage caused as a result of cyber hacking, and it is up to the Client to consider ensuring that it takes out specific insurance to cover this risk if they wish to be protected against the same.

(b) Marketing Sweet will only register, establish and administer Google Workspace email accounts including SPF records. However, Marketing Sweet will not setup unless requested by the Client, DMARC or DKIM records.

(c) Marketing Sweet will not be held liable for the client using an unsecure password, failing to use two (2) factor authentication, or modifying the default secure password setup by Marketing Sweet for the Client.

(d) In the event of a data breach, including a notifiable data breach, the Client must take all steps necessary and comply with the Privacy Act 1988 (Cth) in respect of notifying any affected party.

(e) The Client also agrees to hold Marketing Sweet harmless in respect of any data breach (whether an eligible notifiable data breach under the Privacy Act 1988 (Cth) or otherwise according) or cyber hacking and will indemnify Marketing Sweet in respect of claims from any third party in respect of a data breach.

22. LIMITATION OF LIABILITY

(a) The Client agrees that it is using Marketing Sweet's Service(s) at its own risk.

(b) No warranty, representation, condition, undertaking or term " express or implied, statutory or otherwise " including but not limited to the condition, quality, durability, performance, accuracy, reliability, non-infringement, merchantability, or fitness for a particular purpose or use of Marketing Sweet is given or assumed by all such warranties, representations, conditions, undertakings and terms are hereby excluded to the maximum extent possible.

(c) Marketing Sweet makes no warranty that Marketing Sweet will meet the Client's requirements, or that any Service offered by Marketing Sweet will be uninterrupted, timely, secure, or error free.

(d) Marketing Sweet makes no representations as to the suitability of the information available on or through Marketing Sweet, including but not limited to user amended sites, for any purpose nor about its legitimacy, legality, validity, accuracy, correctness, reliability, quality, stability, completeness, or currency.

(e) Marketing Sweet makes no warranty that any Service will generate any increase in sales, business activity, profits or any other form of improvement for your business or any other purpose.

(f) Marketing Sweet makes no warranty that any Service will lead to any clicks to the Client's business or other information.

(g) Marketing Sweet makes no warranty that any Services will lead to consistent exposure of the Client's business or the Client's keywords during the term of this Agreement (including but not limited to, the position of the Client's advertisement is placed on a search result page or the frequency and time of day that the Client's advertisement are displayed). All such information on the user-amended sites is provided by the users.

(h) The information available on or through Marketing Sweet user amended sites is not reviewed, controlled, or examined by Marketing Sweet in any way before it appears on Marketing Sweet.

(i) Marketing Sweet does not endorse, verify, or otherwise certify the contents of any information on any website it developers for the Client or provides any Service in relation to for the Client.

(j) The Client and users of the Client's website(s) are solely responsible for the contents of their websites and may be held legally liable or accountable for the contents of their websites (including without limitation in connection with infringement of intellectual property rights of any other party).

(k) Marketing Sweet does not warrant or guarantee:

(a) that any information available on or through Marketing Sweet will be free of infection by viruses, worms, Trojan horses or anything else manifesting contaminative, disruptive, or destructive properties;

(b) that the information available on or through Marketing Sweet will not contain adult-oriented material, or material which some individuals may deem objectionable; or

(c) that the functions or services performed by or through Marketing Sweet will be uninterrupted or error-free, or that defects in Marketing Sweet will be corrected.

(l) It is the sole responsibility of the Client to isolate software and information, execute anti-contamination software and otherwise take steps to ensure that software or information, if contaminated or infected, will not damage Client's information or system.

(m) The Client acknowledges and accepts that each third-party platform (including but not limited to those such as Facebook, Instagram, TikTok, Google My Business, G-Suite, Google Ads, Meta Ads, website hosting provider"s domain name registrars) have their own individual terms and conditions and each reserve the right to refuse or take down an advertisement or suspend any service at any time in accordance with those terms and conditions.

(n) Whilst Marketing Sweet will take all reasonable steps to advise the Client regarding these terms and how to structure advertisements or usage of those services accordingly, however Marketing Sweet makes no warranty or guarantee as to whether the advertisement will be accepted or not or as to any uptime guarantees. In such circumstances where an advertisement is refused or removed, or a service is suspended by a third-party platform, this does not negate any moneys owing to Marketing Sweet by the Client.

(o) Marketing Sweet makes no guarantee that social media marketing or management will lead to an increase in sales or business and the Client does not hold Marketing Sweet liable for any damage or loss resulting this.

23. WEBSITE TERMS OF USE AND PRIVACY POLICY

(a) It is up to the Client to ensure that any website produced as part of the Services has website terms of use and a privacy policy prepared to be included on this website before it goes live.

(b) Marketing Sweet does not accept any liability, costs, losses or damages that may be incurred by the Client as a direct result of the Client's failure to have terms of use and a privacy policy included on their website.

24. RELIANCE ON THE SERVICES

(a) The Client acknowledges and agrees that:

a. Marketing Sweet provides no guarantee as to any particular outcome of the Services including but not limited to increased business, online leads, search engine positioning, uptime, availability, suitability, usability and accessibility;

b. The Services will be based on the Client Content provided to Marketing Sweet and Marketing Sweet is not liable for the same;

c. All reliance on the Services and any information or advice provided in connection with the Services is at the Client's own risk;

d. The Client is responsible for its own business decisions and must make its own independent assessment of the risks, benefits and suitability of any act, action, undertaking, venture or transaction contemplated by or in connection with the Services and any information or advice provided by Marketing Sweet;

e. Prior to entering into this Agreement, it has been given a reasonable opportunity to examine and satisfy itself regarding all goods or Service(s) which are subject to this Agreement and that prior to entering into this Agreement it has availed itself of that opportunity including seeking independent legal advice; and

f. The application of the United Nations Convention on Contracts for the International Sale of Goods (the Vienna Convention) to this Agreement (by virtue of any law relevant to this Agreement) is excluded.

25. TERM OF THE SERVICES

(a) The Services provided to the Client will either be Ongoing or One-off.

(b) The Proposal will outline whether the Services are to be Ongoing or One-off and the start and finish dates of the Services, if timeframes are required. Ongoing Services must be paid by the Client to Marketing Sweet in advance as outlined in the Proposal.

(c) Ongoing Services will have a maximum term as outlined on the Proposal from the start date, or the date of the Client's acceptance of the Proposal under clause 3 if a start date is not outlined in the Proposal.

(d) Once the initial term of the Ongoing Services has expired:

a. This may be extended for a further term by agreement in writing between the Client and Marketing Sweet;

b. The Client can elect for the Agreement to continue to run, in respect of the Ongoing Services, on a month-by-month basis, the fee applicable for payment by the Client to Marketing Sweet and the approval of this will be at the sole discretion of Marketing Sweet; or

c. The Client may cancel an ongoing monthly service by providing Marketing Sweet with thirty (30) days of notice.

26. MARKETING SWEET DESIGN

(a) From time-to-time Marketing Sweet will be required to provide designs for the specific Services they are to provide to the Client for their specific requirements.

(b) These designs are the Intellectual Property of Marketing Sweet and are subject to clause 42.

(c) Marketing Sweet retains sole and exclusive ownership of the designs and any Intellectual Property under this agreement, and these cannot be disclosed to any third party or used by the Client or any third party unless clause 26(g) is first complied with.

(d) These designs can only be used by Marketing Sweet for the Services, or any other services that Marketing Sweet may undertake for the Client in the future.

(e) The Intellectual Property in anything produced by Marketing Sweet vests in Marketing Sweet.

(f) The Client acknowledges there is no assignment of Intellectual Property rights in:

a. Any pre-existing material (including but not limited to Marketing Sweet's software, documentation, templates and data) which is incorporated into, or which has been used in the course of developing the Website; and

b. The user interface of the website.

(g) Before the Client uses any designs of Marketing Sweet they must first:

a. obtain written consent from Marketing Sweet;

b. undertake any actions or refrain from taking any actions that would prejudice Marketing Sweet's Intellectual Property;

c. pay to Marketing Sweet for a licence to use these designs at an annual fee that is nominated by Marketing Sweet; and

d. if required by Marketing Sweet, to sign an Intellectual Property licensing or assignment agreement.

(h) If the Client or any third party uses these designs without following the procedure as set out in clause 26(g) then Marketing Sweet is able to claim from the Client the cost of these designs plus any loss or expenses suffered by Marketing Sweet including all costs associated with enforcing its intellectual property rights under this Agreement on a solicitor and client basis in accordance with the default provisions under this Agreement in relation to making this claim and the Client or third party using their designs without following clause 26(g) of this Agreement.

27. LIMITATION OF LIABILITY & INDEMNITY

(a) The Agreement does not exclude, restrict or modify the application of any provisions of any Commonwealth, State or Territorial Law which cannot be excluded, restricted or modified.

(b) To the extent permitted by law, all terms, conditions, warranties and representations, expressed or implied, by statute or otherwise, are hereby expressly excluded.

(c) To the extent permitted by law, Marketing Sweet shall not be liable to the Client for any injury, harm, loss, damage, costs, expense or other claim including consequential loss, economic loss or loss of profits however arising, and whether direct or indirect, from the supply of the Services and what is produced and/or advice given as a result of the Services or arising from any breach, default or negligence of Marketing Sweet in connection with the supply of the Services and what is produced and/or advice given as a result of the Services.

(d) Marketing Sweet shall not be liable for any damage to the Services caused by the Client or third parties and shall not be required to indemnify any part for any damage caused by others.

(e) Marketing Sweet will not be liable for any delays caused by any person other than Marketing Sweet or its any of its representatives.

(f) Subject to the Australian Consumer Law, Marketing Sweet will not accept the return of, or give credit for, any Services or anything else created as a part of the Services in accordance with this Agreement.

(g) Subject to the Australian Consumer Law, Marketing Sweet will not be liable for any consequential or indirect losses.

(h) Marketing Sweet does not give any express warranties in relation to the Services, including warranties for the website hosting and/or email hosting that:

a. Clients will have continuous access to, or usage of, Marketing Sweet's website and/or email hosting services;

b. Data stored on servers of Marketing Sweet or trusted third party hosting provider will not be lost or corrupted;

c. It will be possible to restore all of the Client's content from Marketing Sweet's back up media;

d. Marketing Sweet will be able to prevent unauthorised persons obtaining any of the contents of the Client's website and/or emails;

e. Marketing Sweet shall not be responsible for any loss or damage, or delay caused directly or indirectly by any cyber threats, ransomware, DOS, DDOS, crypto locker attacks and/or hacking;

f. Marketing Sweet shall not be responsible for any loss or damage, or delay caused directly or indirectly by any Spear-Phishing, Business Email Compromise, Phishing Activity of the Client;

g. Marketing Sweet shall not be responsible for any loss or damage, or delay caused directly or indirectly by the Client failing to follow any recommendations provided by Marketing Sweet; and

h. Marketing Sweet shall not be responsible for any loss or damage, or delay caused by the Client's own staff, employees, consultants, contractors or other third-party that the Client permits to access any Service.

(i) The Client shall indemnify Marketing Sweet from and against any Liability which may be incurred or suffered by Marketing Sweet arising from any one or more of the following:

a. the breach by the Client of a material term or any of the Client's obligation under the Agreement;

b. any negligent act or omission or wilful misconduct by the Client arising from the use of the Services, Marketing Sweet's Equipment, or otherwise arising out of the Client's obligation under the Agreement;

c. the use or provisioning of the Services or Marketing Sweet's Equipment;

d. any claims or demands made upon Marketing Sweet by reason of any loss, injury or damage which may be suffered by any person from the provisioning or use of the Services or Marketing Sweet's Equipment;

e. any claims or demands made upon Marketing Sweet by reason of any loss, injury or damage which may be suffered by any person as a result of cyber threats, DOS, DDOS, Business Email Compromise Scams, third-party intellectual property , ransomware, crypto locker attacks and hacking;

f. any claims or demands made upon Marketing Sweet by reason of any loss, injury or damage which may be suffered by any person as a result of Phishing Activity;

g. any claims or demands made upon Marketing Sweet by reason of any loss, injury or damage, including but not limited to the loss of data, which may have been suffered by any person as a result of the Client's backup software and hardware;

h. any direction from the Client's employees, agents (whether actual or under ostensible authority), Directors, sub-contractors or consultants including but not limited to directions or requests for any Variations or Service(s);

i. any claims or demands made upon Marketing Sweet for any content that is defamatory, racist, homophobic, derogatory, vulgar, obscene, unlawfully threatening, or unlawfully harassing;

j. any claims or demands made upon Marketing Sweet by reason of any loss, injury or damage, including but not limited to the loss of data, which may have been suffered by any person as a result of software or hardware backup issues and/or any cloud backup issues that are out of the control of Marketing Sweet; and

k. any claims or demands made upon Marketing Sweet by any loss, injury or damage that occurs due to the Client failing to follow any recommendations provided by Marketing Sweet.

(j) The Client also agrees to take out and maintain a current stand-alone cyber-insurance policy and provide evidence of such insurance to Marketing Sweet on demand.

28. INSTRUCTIONS AND COMMUNICATIONS

(a) Marketing Sweet shall only receive, accept and act upon instructions from the Client entering into this Agreement or any other authorised person who is deemed to have the Client's actual authority.

(b) If the Client authorises any other person to give Marketing Sweet instructions in lieu of, or in addition to, the person entering into this Agreement then the Client must inform Marketing Sweet of that person"s details.

(c) Marketing Sweet shall not be liable in any way for any losses incurred by the Client in accepting instructions from the persons contemplated by this clause.

(d) Marketing Sweet may elect to communicate by electronic mail or such other form as is convenient and does not warrant that any such communication will be free from defect, virus or shall otherwise be secure.

(e) The Client hereby acknowledges and agrees to accept such communications and releases Marketing Sweet from all liability in respect of any losses that may be incurred by the Client from such communications.

29. CLIENT CONTENT

(a) The Client must provide all data to be incorporated into any website or requested Service including but not limited to where requested logos, designs, graphics, related materials, information, ideas, suggestions to be considered by Marketing Sweet.

(b) The Client Content is to be provided by the Client to Marketing Sweet within the timeframe outlined in Proposal. If the Client wishes to provide any further Client Content after this date, then this will be considered a Variation under clause 12 of this Agreement.

a. In providing the Services, Marketing Sweet will be using, interpreting and relying upon the Client Content for content and images and the Client grants Marketing Sweet with an irrevocable licence at no cost to Marketing Sweet to use the Client Content for the purpose of providing the Services;

b. Marketing Sweet will not be undertaking any independent verification of the accuracy or completeness of the Client Content; and

c. If any information in the Client Content is incorrect, inaccurate, inadequate or incomplete such information may have a corresponding effect on the accuracy of the Services which will be no fault of Marketing Sweet but the fault of the Client.

(d) The Client represents and warrants that:

a. It owns or is licensed to use all words, pictures and designs in the Client Content;

b. It is able to provide Marketing Sweet the Client Content for use in connection with the Service(s); and

c. Use of the Client Content by Marketing Sweet in performing the Services will not infringe any laws, regulations, by-laws, standards, regulations and any third-party intellectual property rights and/or that all required consents have been obtained to use the same for their use in performance of the Services.

(e) All Client Content should be provided to Marketing Sweet digitally (and not in hard copy) in the format, file type and size specified by Marketing Sweet from time to time via Dropbox or Google Drive.

(f) If the Client Content is not provided as specified by Marketing Sweet, then this will attract additional fees for the Client and will be a Variation under clause 12 of this Agreement.

(g) If the Client provides Marketing Sweet with the Client Content including but not limited to on compact disk, portable USB stick or hard drive, DVD"s, the Client acknowledges and agrees that:

a. Marketing Sweet does not have to return these to the Client unless the Client specifically requests their return in writing before providing them to Marketing Sweet.

b. It has checked the storage medium for malware or viruses and indemnifies Marketing Sweet against any damage, loss, claim resulting from providing Marketing Sweet an infected data storage device.

30. TIMEFRAME FOR THE SERVICE(S) AND EXTENSION OF TIME

(a) Any turnaround timeframes for the Services will be provided in the Proposal are estimates and cannot be guaranteed by Marketing Sweet.

(b) All timeframes are dependent on the Client complying with the terms and conditions of this Agreement and any key dates outlined by Marketing Sweet as to payment and provision of the Client Content to Marketing Sweet.

(c) Marketing Sweet shall be entitled to an extension of time to complete the Services if the provision of the Services is delayed through no fault of Marketing Sweet by the Client and/or any third party and may at its sole discretion issue a Variation to the client before providing any further Service.

31. OWNERSHIP AND RISK

(a) Marketing Sweet will remain the sole and absolute owner of any websites, accounts, creative assets, designs, Intellectual Property, copy, domain names, logo, branding, printed or promotional material, and hardware or software applications created as part and or provided as part of the Service(s) until such time as payment has been made in full by the Client to Marketing Sweet and subject to the terms of this Agreement.

(b) Ownership of any third-party platforms plug ins, applications, software, scripts will not transfer to the Client rather, they will be granted a license to use these from Marketing Sweet in accordance subject to the terms of this Agreement.

(c) The Client must not sell or otherwise deal with the website, domain name, accounts, logo and branding created as part of the Services until such time as payment has been made in full to Marketing Sweet and subject to the terms of this Agreement.

(d) Copyright and Intellectual Property in anything created by Marketing Sweet in the provision of the Services for the Client will be owned by Marketing Sweet.

(e) If the Client wishes to sell, exploit or otherwise deal with anything Marketing Sweet has provided to the Client, it notifies Marketing Sweet in writing and enter into a separate intellectual property licensing or purchase agreement subject to the terms of this Agreement.

(f) Except where expressly authorised by Marketing Sweet for use of anything created as part of the Services, or as permitted under the Copyright Act 1968 (Cth), nothing created by Marketing Sweet for the Client can be reproduced, adapted, provided to a third party (unless in the ordinary course of business of the Client), distributed or transmitted in any form by any process without the specific prior written consent of Marketing Sweet.

32. SERVICE GUARANTEE, REPAIRS AND WARRANTY

(a) Any guarantees under the Australian Consumer Law which cannot be excluded by that statute or by any other law are not intended to be excluded by this Agreement.

(b) The Client agrees that Marketing Sweet's liability to the Client for any breach of any implied terms may, subject to the Australian Consumer Law, be limited to the replacement, or repair or payment of the cost of re-supply, replacement or repair of the relevant Services.

(c) Subject to the Client's rights in relation to the Services, under the Australian Consumer Law and to the fullest extent permitted by law, the Client agrees that Marketing Sweet will not be liable to the Client for:

a. Loss of profit or other economic loss;

b. Direct or indirect or consequential, special, general or other damages; or

c. Other expenses or costs arising out of a breach of contract or any common law duty (including negligence) by Marketing Sweet, its agents or employees arising from but not limited to those caused by:

i. The use of the Services for other than their intended purpose;

ii. Any changes made by the Client to the Services or anything produced as part of the Services; or

iii. Any configuration or reconfiguration by the Client.

(d) No liability is assumed for any consequential damage caused from the use of the Services by the Client.

(e) Pursuant to s 64A of the Australian Consumer Law (under the Competition and Consumer Act 2010 (Cth)):

a. this sub-clause applies in respect of any of the goods or services supplied under this Agreement which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this sub-clause will not apply if the Client establishes that reliance on it would not be fair and reasonable;

b. liability for breach of a guarantee conferred by the Australian Consumer Law (under the Competition and Consumer Act 2010 (Cth)), other than those conferred by ss 51"53 of that Law, is limited:

i. in the case of goods, to any one of the following as determined by Marketing Sweet:

1. the replacement of the goods or the supply of equivalent goods; or

2. the repair of the goods; or

3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or

4. the payment of the cost of having the goods repaired;

ii. in the case of services, to payment of the cost of having the services supplied again.

33. REVIEW OF THE COMPLETED SERVICES AND DEFECTS

(a) The Client must inspect the completed Services, including any preview link to the test website before it goes live, and what is produced as a result of the Services and within seven (7) days of completion of the Services notify Marketing Sweet in writing of anything evidently incorrect, inaccurate, inadequate or incomplete, or that fails to comply with the description or the Proposal.

(b) During this seven (7) day timeframe, it is the Client's responsibility to ensure that all Client Content is correct, and the Client must approve of all content, design and layout before the website goes live.

(c) If the Client does not advise Marketing Sweet of any defects during this seven (7) day period, then the Client is taken to have accepted the completed Services as they are and Marketing Sweet will not be required to make any amendments.

(d) The Client must provide Marketing Sweet with a reasonable opportunity to make any required amendments after notification is received under clause 33 (a).

(e) The Client agrees that Marketing Sweet is not liable for any deficiency or alleged deficiency in any website or service which is attributable to incorrect information provided by the Client or any failure by the Client to provide relevant information, documents, instructions or data.

(f) Marketing Sweet will not be liable to make any amendments that are the result of anything that is incorrect, inaccurate, inadequate or incomplete in the Client Content for the provision of the Services and if the Client requires these amendments to be made, they will be charged at Marketing Sweet's hourly rate of $150.00 per hour plus GST as may be varied in accordance with clause 43.

34. WEBSITE BUGS, TECHNICAL ERRORS, REVERSE ENGINEERING & ACCESS

(a) For a period of three (3) months after the website development is complete and the test link has been provided to the Client, Marketing Sweet will at no cost to the Client remedy any Bugs that may be found on the website so long as the Bugs are not a direct result of any action on the part of the Client or its representatives.

(b) Any modification to the website that Marketing Sweet does not define as a Bug will not be included and these works will be quoted by Marketing Sweet and undertaken by Marketing Sweet at the Client's cost as a Variation under clause 12 of this Agreement.

(c) The Client shall not reverse assemble or reverse compile or directly or indirectly allow or cause a third party to reverse assemble or reverse compile the whole or any part of any Service(s) provided by Marketing Sweet.

(d) The Client shall ensure that Marketing Sweet and its personnel have full access to the Client's website and any other account or other resource as required from time to for any purpose associated with the Service(s).

(e) The Client shall ensure Marketing Sweet's personnel are given such information, facilities, Services and accessories as Marketing Sweet requires to enable it to comply with and perform its obligations under this Agreement.

(f) The Client must provide on request a suitably qualified or informed representative, agent or employee, who shall be available on call during Marketing Sweet's normal business hours to:

a. advise Marketing Sweet on access to any account, hosting account, content management system, website, server or other resource that Marketing Sweet may require from time to time to provide the Service(s) under this Agreement; and

b. provide any other assistance to Marketing Sweet including but not limited to liaising, coordinating, communicating with or otherwise directing any other third-party as required to enable Marketing Sweet fulfil its obligations under this Agreement.

35. FORCE MAJEURE

(a) Neither party is responsible for any failure to perform its obligations under this contract if it is prevented or delayed in performing those obligations by an event of force majeure.

(b) Where there is an event of force majeure, the party prevented from or delayed in performing its obligations under this contract must immediately notify the other party giving full particulars of the event of force majeure and the reasons for the event of force majeure preventing that party from, or delaying that party in performing its obligations under this contract and that party must use its reasonable efforts to mitigate the effect of the event of force majeure upon its or their performance of the contract and to fulfil its or their obligations under the contract.

(c) An event of force majeure does not relieve a party from liability for an obligation which arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner which matured prior to the occurrence of that event.

(d) The Client has no entitlement and Marketing Sweet has no liability for any costs, losses, expenses, damages or the payment of any part of the contract price during an event of force majeure; and any delay costs in any way incurred by the Client due to an event of force majeure.

(e) If the loss or damage is caused by an event of force majeure, Marketing Sweet may direct the Client to reinstate the service.

(f) The cost of the reinstatement work or any change to the Service arising from a direction by Marketing Sweet under this clause will be dealt with as a Variation except to the extent that the loss or damage has been caused or exacerbated by the failure of the client to fulfil its obligations under this contract. Except as contemplated by this clause, the cost of all reinstatement will be borne by the Client.

(n) Either party ("Affected Party") may, without liability, cancel the Agreement with immediate effect from the date of service of a notice (or with effect from a later date as the Affected Party may nominate in a notice) if any Force Majeure Event prevents the supply of the Service for more than 60 consecutive days.

36. CONFIDENTIALITY

(a) The parties shall, except for legal and other advisors or as required at law, keep strictly confidential between them all information shared under the Agreement unless otherwise agreed to in writing by the parties.

(b) The Parties hereby irrevocably covenant to:

a. Not use any confidential information for any purpose unless expressly permitted by this agreement or required by law;

b. Not disclose any Confidential Information to any person or party not a party to this Agreement, other than as strictly necessary by law or with express written permission of the other party; and

c. A party may disclose Confidential Information to employees, advisors or subcontractors engaged specifically for the purpose of this Agreement, to the extent necessary for them to know the purpose of the Agreement.

37. PRIVACY

(a) The Client hereby authorises Marketing Sweet to collect, retain, record, use and disclose consumer and/or commercial information about the Client, in accordance with the Privacy Act 1988 (Cth), to persons and/or legal entities who are a solicitor or any other professional consultant engaged by Marketing Sweet, a debt collector, credit reference organisation and/or any other individual or organisation which maintains credit references and/or default listings.

(b) The Client also authorises Marketing Sweet to make enquiries with respect to the Client's consumer and commercial credit worthiness, to exchange information with other credit providers in respect of previous consumer and commercial defaults of the Client and to notify other credit providers of a consumer and/or commercial default by the Client.

(c) The Client agrees that Marketing Sweet may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following additional purposes:

a. to assess an application by the Client; and/or

b. to notify other credit providers of a default by the Client; and/or

c. 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

d. to assess the creditworthiness of the Client.

(d) The Client understands that the information exchanged can include anything about the Client's creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988 (Cth).

(e) The Client consents to Marketing Sweet being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988 (Cth).

(f) The Client agrees that personal credit information provided may be used and retained by Marketing Sweet for the following purposes (and for other purposes as shall be agreed between the Client and Marketing Sweet or required by law from time to time):

a. the provision of Services; and/or

b. the marketing of Services by Marketing Sweet, its agents or distributors; and/or

c. analysing, verifying and/or checking the Client's credit, payment and/or status in relation to the provision of Services; and/or

d. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or

e. enabling the daily operation of the Client's account and/or the collection of amounts outstanding in the Client's account in relation to the Services.

(g) Marketing Sweet may give information about the Client to a credit reporting agency for the following purposes:

a. obtain a consumer credit report about the Client; and

b. allow the credit reporting agency to create or maintain a credit information file containing information about the Client.

(h) The information given to the credit reporting agency may include:

a. personal particulars (the Client's name, sex, address, previous addresses, date of birth, name of employer and driver's licence number);

b. details concerning the Client's application for credit or commercial credit and the amount requested;

c. advice that Marketing Sweet is a current credit provider to the Client;

d. advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;

e. that the Client's overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;

f. information that, in the opinion of Marketing Sweet, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client's credit obligations);

g. advice that cheques drawn by the Client for one hundred dollars ($100.00) or more, have been dishonoured more than once; and

h. that credit provided by the Client by Marketing Sweet has been paid or otherwise discharged.

38. ASSIGNMENT, WAIVER & NOVATION

(a) The Client hereby authorises Marketing Sweet to assign its obligations, rights and interests in this Agreement to any third party it is so desires without any further consent being required from the Client.

(b) The Client is not entitled to transfer its obligations, rights and interest under this Agreement without first seeking the consent of Marketing Sweet and acknowledges that this term is necessary to protect Marketing Sweet's legitimate business interests as they relate to the performance of the Client's obligations under this Agreement.

(c) Any consent that may be given by Marketing Sweet may be granted or withheld in Marketing Sweet's absolute discretion and shall not at any time constitute a waiver of Marketing Sweet's rights and interests under this Agreement.

(d) A waiver made by Marketing Sweet will not prejudice its rights in respect of any breach of the agreement by the Client.

(e) Any failure by Marketing Sweet to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by Marketing Sweet to the Client will not be construed as a waiver of Marketing Sweet's rights under this agreement.

(f) Marketing Sweet may consent to the novation of this Agreement by the Client subject to such conditions as it chooses to impose.

39. GUARANTEE

(a) As security for the due and punctual payment and performance of the Client's obligations under this Agreement, the Client may be required to (at Marketing Sweet's discretion), prior to the undertaking of Services by Marketing Sweet, provide to Marketing Sweet a Guarantor to enter into this Agreement and guarantee and indemnify Marketing Sweet on any or all of the following terms:

a. The Guarantor unconditionally guarantees full payment of all money owed by the Client under this Agreement and any ancillary documents and the observance and performance of all of the Client's obligations as specified in or implied by this Agreement;

b. The Guarantor indemnifies and must keep indemnified Marketing Sweet against any costs, expenses, claims, liabilities, losses and damaged incurred by Marketing Sweet in respect of any default by the Client under this Agreement, or arising out of any claim by any third-party relating to the terms of this Agreement;

c. This guarantee covers all Services undertaken by Marketing Sweet, including Variations;

d. This guarantee is in favour of Marketing Sweet and its employees, successors, assigns and agents;

e. This guarantee extends to claims by Marketing Sweet for breaches of material terms of this Agreement and repudiation of this Agreement and to Marketing Sweet's reasonable legal and other expenses of seeking to enforce those obligations (subject to clause 39 herein); and

f. Marketing Sweet may require the Guarantor under this guarantee to pay to Marketing Sweet any outstanding amounts, or any other amount to compensate Marketing Sweet for any loss or damage incurred under this Agreement, without Marketing Sweet being required to institute any proceedings against the Client in respect of such claims or breaches.

(b) "Marketing Sweet's rights against the Guarantor are not affected by

a. the death, bankruptcy or winding up of the Client or Guarantor;

b. the Client's liability under this Agreement, any Variation or any other ancillary documents, assignments or extensions of the Agreement between the Parties; or

c. any release of the Client or any Guarantor.

(c) This guarantee extends to claims by Marketing Sweet for breaches of material terms of this Agreement and repudiation of this Agreement and to Marketing Sweet's reasonable legal and other expenses of seeking to enforce those obligations.

(d) Marketing Sweet may require the Guarantor under this guarantee to pay to Marketing Sweet any outstanding amounts, or any other amount to compensate Marketing Sweet for any loss or damage incurred under this Agreement, without Marketing Sweet being required to institute any proceedings against the Client in respect of such claims or breached.

(e) This Guarantee is to be a continuing Guarantee and will be irrevocable and will remain in full force and effect until the whole of the money payable or which may become payable pursuant to the provisions of this Agreement has been paid and until all obligations of the Client, pursuant to this Agreement, have been duly and properly observed and performed or satisfied.

CAVEAT

(f) In consideration of Marketing Sweet agreeing to supply the Services under this Agreement, 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) or otherwise arising from the carrying out of the Service.

(g) The Client acknowledges and agrees that Marketing Sweet has a caveatable interest in the land from upon execution of this Agreement and that Marketing Sweet is entitled to lodge and maintain a caveat on the title to the Land notifying of Marketing Sweet's interested created by this Agreement.

(h) The Client agrees that upon execution of this Agreement to deliver to Marketing Sweet, a caveat in registerable form with the consent to caveat signed by the Client to lodge and maintain a caveat on the title to the land notifying Marketing Sweet in this Agreement together with a cheque in favour of the Lands Title Office for registration fee on the caveat.

(i) The Client agrees that Marketing Sweet is entitled to register and a lodge a caveat on the Client's property in Marketing Sweet's favour and that Marketing Sweet will withdraw the caveat once all moneys owing to Marketing Sweet by the Client pursuant to this Agreement are paid in full to Marketing Sweet.

(j) The Client indemnifies Marketing Sweet from and against all Marketing Sweet costs, filing fees, and disbursements including legal costs on a solicitor and own client basis incurred in exercising Marketing Sweet's rights under this clause.

(k) The Client irrevocably appoints Marketing Sweet and each director and or Trustee of Marketing Sweet as the Client's true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 39 including, but not limited to, signing any document on the Client's behalf.

(l) The Client acknowledges that Marketing Sweet is entitled to apply to a Court for the sale of the property for the purpose of recovering any debt that may be outstanding under this Agreement to the Services.

INDEPENDENT LEGAL ADVICE

(m) The Client agrees it has sought and received independent legal advice in relation to this clause 39.

40. NOTICE

(a) Any notices required or permitted to be given pursuant to this Agreement shall be given in writing and shall be delivered:

a. In person;

b. By certified mail (postage prepaid, return receipt requested);

c. By email;

d. By facsimile; or

e. By commercial overnight courier that guarantees next day delivery and provides a receipt.

(b) Any notice shall be effective only upon delivery, which for any notice given by facsimile shall mean notice that has been received by the party to whom it is sent as evidenced by confirmation slip.

(c) Each party must (at its own expense, unless otherwise provided in this agreement) promptly execute and deliver all such documents, and do all such things, as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of this agreement.

41. CHANGE IN OWNERSHIP OF THE CLIENT

(a) The Client shall give to Marketing Sweet not less than thirty (30) days prior written notice of any proposed changes to the ownership of the Client or any change in the Client's name and/or any change in the Client's details (including but not limited to changes in address, email address, contact numbers (both telephone and facsimile).

(b) The Client shall be liable for any loss incurred by Marketing Sweet as a result of the Client's failure to comply with this clause.

42. INTELLECTUAL PROPERTY AND COPYRIGHT

(a) The Client acknowledges that Intellectual Property of Marketing Sweet is used to provide the Services and, in the materials, and documents provided by Marketing Sweet.

(b) The Intellectual Property is the absolute property of Marketing Sweet and will at all times be owned and controlled by Marketing Sweet and is protected by copyright, trademarks and intellectual property laws in Australia.

(c) Any use of the Intellectual Property by the Client can only occur with the prior written authority of Marketing Sweet.

(d) Copyright in all documents produced by Marketing Sweet for the Client is owned by Marketing Sweet.

(e) Where Marketing Sweet has designed, drawn, written plans, created wireframes, designed illustrations, developed software or code, or a schedule or developed a Service for the Client, or created any products for the Client, then the copyright in any shall remain vested in Marketing Sweet, and shall only be used by the Client at Marketing Sweet discretion.

(f) The Client warrants that all designs, specifications or instructions given to Marketing Sweet will not cause Marketing Sweet to infringe any patent, registered design or trademark in the execution of the Client's order and the Client agrees to indemnify Marketing Sweet against any action taken by a third party against Marketing Sweet in respect of any such infringement.

(g) The Client agrees that Marketing Sweet may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Service which Marketing Sweet has created for the Client.

(h) The Client agrees that Marketing Sweet may also display the Client's home, property, company or business name, logo, images or other media as part of Marketing Sweet and/or other marketing materials relating to Marketing Sweet's Website, social media and Print Media, except where the Client has explicitly requested that Marketing Sweet refrains from doing this in writing.

(i) All materials, documentation, computer programs, inventions (whether or not patentable), pictures, audio, video, accounts, domains, Google Services, artistic works and all other works of authorship including all worldwide rights therein under patent, copyright, design right, trade" secret or other property right created or developed by Marketing Sweet in providing the Services ("the Intellectual Property"), shall belong to and remain the property of Marketing Sweet.

(j) Save and except for any confidential information provided by the Client, which the Client shall identify in advance in writing to Marketing Sweet, Marketing Sweet shall not be obliged to return any artwork or other material supplied by the Client to Marketing Sweet for the provision of Services. Marketing Sweet reserves the right to charge a fee proportionate to the time and costs they incur in having to return any information under this clause.

(k) For intellectual property provided to Marketing Sweet in the provision of Services, the Client hereby warrants:

a. They own the intellectual property in that content;

b. The content does not infringe the intellectual property rights of a third party;

c. That content is not fraudulent, stolen, or otherwise unlawful;

d. That content does not violate any applicable law, statute, ordinance, or regulation (including but not limited to, those governing consumer protection, criminal law or unfair competition);

e. That content is not defamatory, racist, homophobic, derogatory, vulgar, obscene, unlawfully threatening, or unlawfully harassing; and

f. That content does not contain viruses or other computer codes, files or programs which are designed to limit or destroy the functionality of other computer software or hardware.

(l) Marketing Sweet reserves the right to refuse any content if considers to be in contravention with this clause 42."

43. PRICES OUTLINED IN THESE TERMS

(a) The prices in this Agreement may, at the sole and absolute discretion of Marketing Sweet, be amended from time to time and Marketing Sweet will provide the Client with seven (7) days" notice in writing of any change to these costs before such changes take effect.

(b) The person signing this Agreement on behalf of the Client hereby irrevocably guarantees the payment of any and all monies that become due and payable under this Agreement.

44. DATA SECURITY

(a) The Client must maintain the security of any all of Marketing Sweet's Data, including by:

a. Storing any of Marketing Sweet's Data within secure premises, facilities and data storage devices;

b. implementing secure access controls and procedures in relation to Marketing Sweet's Data; and

c. complying with Marketing Sweet's data security policies, procedures and standards.

(b) The Client must ensure Marketing Sweet's Data is not:

a. accessed, used or copied by any person without Marketing Sweet's permission; and

b. lost, erased, deleted, damaged, corrupted, destroyed or modified without Marketing Sweet's permission.

(c) If the Client becomes aware of or reasonably suspects any breach of clauses 44(a) or 44(b) (Data Security Incident) the Client must:

a. immediately notify Marketing Sweet in writing of the Data Security Incident, and provide Marketing Sweet with such information in relation to the Data Security Incident as Marketing Sweet may reasonably require;

b. promptly investigate the cause of the Data Security Incident and report its findings to Marketing Sweet in writing;

c. mitigate the impacts of the Data Security Incident; and

d. remedy the Data Security Incident as soon as possible in consultation with Marketing Sweet at the Client's cost.

(d) For the purpose of this clause, "Data" means all data and information in whatever form provided by Marketing Sweet or created by the Client that relates Marketing Sweet, including:

a. data or information relating to Marketing Sweet's operations, policies, procedures, systems and personnel; and

b. data or information generated by the Client as a result of the Client receiving services from Marketing Sweet.

45. NON-DISPARAGEMENT

(a) Each party must not make, express, transmit, speak, write, verbalise or otherwise communicate in any way (directly or indirectly, in any capacity or manner) any remark, comment, message, information, declaration, communication or other statement of any kind (whether verbal, in writing, electronically transferred or otherwise) that might reasonably be construed to be critical of, or derogatory or negative towards, any other party or any Representative of any other party, or cause, further, assist, solicit, encourage or knowingly permit any other person to do so, or support or participate in any other person doing so and must take all reasonable steps to prevent its Representatives from doing so.

(b) However, this clause 45 shall not prohibit any party from making any statement or disclosure as required by law or court order, provided that such party must promptly notify the other party in writing in advance of any such statement or disclosure, if reasonably practicable and reasonably assist the other party in obtaining confidential treatment for, or avoiding or minimising the dissemination of, such statement or disclosure to the extent reasonably requested by any party.

46. TITLE IN DEVELOPED SOFTWARE

(a) The Client acknowledges that, unless and to the extent stipulated to the contrary in any Proposal, Marketing Sweet remains the sole owner of any developed software, and all Intellectual Property Rights associated with the developed software.

(b) The Client shall not copy, alter, modify or reproduce the developed software without Marketing Sweet's prior written consent except as authorised by this Agreement.

(c) Except and to the extent that it is specified in any Proposal that ownership of Intellectual Property Rights is to vest in the Client, all Intellectual Property Rights in any modifications to the developed software executed by or on behalf of the Client (whether or not authorised by Marketing Sweet) shall immediately vest in Marketing Sweet. Without limiting the foregoing, the Client assigns to the Supplier all Intellectual Property Rights which would, but for this sub-clause, vest in the Client as a consequence of any software development services.

(d) If and to the extent it is provided in the Proposal that title in the developed software is to vest in the Client, the Client nevertheless acknowledges that such vesting of title does not affect the Intellectual Property Rights in any pre-existing material (including but not limited to software, developed software documentation and data) which is incorporated into the developed software.

(e) If requested by Marketing Sweet, the Client shall issue a notice in a form approved by Marketing Sweet to all employees and other authorised users of the developed software under its direction or control, advising such persons of the Client's obligations under this clause and also advising of the possible civil and criminal consequences of a breach of this clause.

47. PARTIES RELATIONSHIP

(a) This Agreement does not create any partnership, joint venture or agency relationship between the parties.

(b) No party has the authority to bind any other party and any inference to the contrary is expressly refuted by the parties.

48. NON-SOLICITATION

(a) During the Marketing Sweet's engagement with the Client under this agreement and for each Non-Solicitation Period thereafter, the Client must not, without Marketing Sweet's prior written consent (which Marketing Sweet may withhold or delay in its absolute discretion), directly or indirectly:

a. (non-solicitation suppliers) interfere with or disrupt, or attempt to interfere with or disrupt, any relationship, whether contractual or otherwise, between the Marketing Sweet and any of Marketing Sweet's suppliers, distributors or joint venture partners, or identified prospective suppliers, distributors or joint venture partners; or

b. (non-solicitation of staff) induce, encourage, or solicit any of Marketing Sweet's officers, employees, contractors or agents to cease their employment, engagement or agency with the Marketing Sweet.

(b) The Client acknowledges and agrees that:

a. the restraints in clause 48(a) constitute several separate covenants and restraints consisting of each of clauses 48(a).a and .b combined with each separate Non-Solicitation Period severally;

b. each of those separate covenants and restraints is a fair and reasonable restraint of trade that goes no further than is reasonably necessary to protect Marketing Sweet's goodwill and business;

c. the Client has received substantial and valuable consideration for each of those separate covenants and restraints, including its receipt of the Services; and

d. breach by the Client of any of those separate covenants and restraints would be unfair and calculated to damage Marketing Sweet's goodwill and business and would lead to substantial loss to Marketing Sweet.

(c) The parties intend the covenants and restraints under clauses 48(a) to operate to the maximum extent. If any of those separate covenants and restraints would, in the absence of this clause 48(c), be void as unreasonable for the protection of the interests of the Marketing Sweet but would not be so void if any part of the wording in this clause 48 or clause 48(d) was deleted or amended, the separate covenants and restraints will apply with the minimum modifications necessary to make them effective.

Non-Solicitation Periods

(d) The non-solicitation periods referred to in clause 3 are:

a. 3 months;

b. 6 months;

c. 9 months;

d. 12 months;

e. 18 months;

f. 24 months;

g. 30 months; and

h. 36 months

49. ELECTRONIC EXCHANGE

(a) This agreement may be executed in counterparts by the respective Parties, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement, provided that this Agreement shall be of no force and effect until the counterparts are exchanged.

(b) Delivery of an executed counterpart of this agreement by facsimile, or by email in PDF or other image format, will be equally effective as delivery of an original signed hard copy of that counterpart.

a. it must also deliver an original signed hard copy of that counterpart, but failure to do so will not affect the validity, enforceability or binding effect of this agreement; and

b. in any legal proceedings relating to this agreement, each party waives the right to raise any defence based upon any such failure.

50. GENERAL TERMS

Amendments

(a) Marketing Sweet may vary the terms and conditions of this Agreement from time to time.

(b) When Marketing Sweet varies the terms and conditions of this Agreement, they will give the Client fourteen (14) days of notice in writing of their intention to amend this Agreement outlining the proposed amendments.

(c) If the Client does not want the amended terms and conditions to apply, then the Client must inform Marketing Sweet in writing within seven (7) days of the date of the written notice, otherwise the amended terms and conditions of the Agreement will automatically apply.

(d) The Client will also to be taken to have accepted the amended terms and conditions of the Agreement if the Client makes a further request for Marketing Sweet to provide Services to the Client.

Entire Agreement

(e) This Agreement contains the entire agreement between Marketing Sweet and the Client.

(f) The parties agree that any negotiations that led to this Agreement have been accurately incorporated in this Agreement.

(g) In entering into this Agreement, the parties hereby acknowledge that they have not made any warranties or representations to each other except as incorporated in this Agreement.

Jurisdiction & Governing Law

(h) This agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by, and shall be construed in accordance with, the laws of South Australia, Australia

(i) The parties irrevocably agree that the courts of South Australia, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this agreement or its subject matter or formation (including non-contractual disputes or claims).

Severability

(j) If any part of this Agreement is found to be void, voidable or not enforceable, that part shall be struck out without affecting or eroding the enforceability or validity of the remaining parts and such severance shall not detract from the obligations each party has under this Agreement.

Joint & Several Liability

(k) Where more than one party has entered into this Agreement as the Client, each party of the Client shall be jointly and severally liable for all terms under this Agreement, including but not limited to payment.

(l) Nothing in this Agreement excludes, restricts or modifies any condition, warranty, right or liability implied in this Agreement or protected by law to the extent that such exclusion, restriction or modification would render this Agreement or any provision of this Agreement void, illegal or unenforceable. Subject to that, any condition, warranty, right or liability which would otherwise be implied in this Agreement or protected by law is excluded.

Welcome to the website of Marketing Domain Pty Ltd trading as Marketing Sweet (ABN 14 606 120 398]) (“we”, “us” or the “Company”), The Website Owner is a leading Web Design, SEO, Google Ads, & Digital Marketing company based in Adelaide.

This website is located on the web via the domain https://marketingsweet.com.au and includes all of the files located in that domain (hereafter, this “site” or “website”).

Agreement to these Website Terms of Use

By accessing this site, you agree to be bound by these terms of use (“Website Terms of Use”), our Privacy Policy located at https://marketingsweet.com.au/privacy-policy/ and our Terms of Service located at https://marketingsweet.com.au/terms-conditions/. Your acceptance of Our Website Terms shall constitute acceptance of Our Privacy Policy and Terms of Service, and Our services. The use of our website shall also constitute a binding agreement between you and the Company and govern your use of this site.

Privacy Policy

As part of these Website Terms of Use, your use of this site is also subject to our Privacy Policy (located at https://marketingsweet.com.au/privacy-policy), which is incorporated by reference into these Website Terms of Use.

Restrictions on use

Prohibited conduct

Your use of this site is subject to the rules set out in Schedule 1 below.

Violations of these Website Terms of Use

Without limiting any other remedies available to the Company at law or in equity, the Company reserves the right to, without notice, temporarily or indefinitely suspend, or terminate, your access to this site or refuse to provide services to you if:

• you breach any provision of these Website Terms of Use;

• the Company is unable to verify or authenticate any information that you provide to us; or

• the Company believes that your actions may cause damage and/or legal liability to the

Company, any of its customers or suppliers or any other person.

Indemnity

You indemnify and hold harmless the Company and its officers, employees, agents, consultants, licensors, partners and affiliates from and against any losses, liabilities, costs, expenses or damages (including actual losses or damages, including all legal fees on a solicitor-client basis) suffered or incurred by any of them due to, arising out of, or in any way related to (directly or indirectly):

• any material or information that you submit, post, transmit or otherwise make available through this site;

• your use of, or connection to, this site; or

• your negligence or misconduct, breach of these Website Terms of Use or violation of any law or the rights of any person.

Intellectual property

Copyright

In these Website Terms of Use, the term “Proprietary Content” means:

• this site;

• all of its content (including all of the text, graphics, designs, software, data, sound and video files and other information contained in this site, and the selection and arrangement thereof);

and

• all software, systems and other information owned or used by the Company in connection with this site (whether hosted on the same server as this site or otherwise).

All Proprietary Content is the property of the Company or its licensors (as applicable) and is protected by Australian and international copyright laws. You must not reproduce, transmit, republish or prepare derivative works from any of the Proprietary Content, except as expressly authorised by these Website Terms of Use or with the prior written consent of the Company or other copyright owner (as applicable).

You may download and print out content from this site only for your own personal and noncommercial use and provided that you do not remove or modify any copyright, trademark or other proprietary notices.

Trademarks

The Company’s logo and the phrases “Marketing Sweet” are trademarks of the Company. The look and feel of this site (including all button icons, scripts, custom graphics and headers) are the trademarks, service marks and/or trade dress of the Company. These trademarks, service marks and trade dress may not be used, copied or imitated, in whole or in part, without the prior written consent of the Company.

Copyright claims

If you believe that our site contains any material that infringes upon any copyright that you hold or control, or that users are directed through a link on this site to a third party website that you believe is infringing upon any copyright that you hold or control, you may send a notification of such alleged infringement to us in writing. Such notification should identify the works that are allegedly being infringed upon and the allegedly infringing material and give particulars of the alleged infringement. In response to such a notification, we will give a written notice of a claim of copyright infringement to the provider of the allegedly infringing material. If the provider of that material does not respond to us in writing denying the alleged infringement within 14 days after receipt of that notice, we will remove or block the allegedly infringing material as soon as is reasonably practicable. If the provider of that material responds to us in writing denying the alleged infringement, we will, as soon as is reasonably practicable, send a copy of that response to the original notifying party. If the original notifying party does not, within a further 14 days, file an action seeking a court order against the provider of the allegedly infringing material, we may restore any removed or blocked material at our discretion. If the original notifying party files such a legal action, we will remove or block the allegedly infringing material pending resolution of that legal action.

Disclaimer of warranties

TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY AND ITS OFFICERS, EMPLOYEES, AGENTS, CONSULTANTS, LICENSORS, PARTNERS AND AFFILIATES EXPRESSLY DISCLAIM ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES (WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE) IN RELATION TO THIS SITE, INCLUDING ANY IMPLIED WARRANTY/GUARANTEE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

This site is provided strictly on an “as is” basis. To the maximum extent permitted by law, the Company and its officers, employees, agents, consultants, licensors, partners and affiliates make no representation, warranty or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of this site or any of its content, and in particular do not represent, warrant or guarantee that:

• the use of this site will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data;

• this site will meet your requirements or expectations;

• anything on this site, or on any third-party website referred or linked to in this site, is reliable, accurate, complete or up-to-date;

• the quality of any information or other material purchased or obtained through this site will meet any particular requirements or expectations;

• errors or defects will be corrected; or

• this site or the servers that make it available are free of viruses or other harmful components.

Limitation of liability

Exclusion of liability

To the maximum extent permitted by law, the Company and its officers, employees, agents, consultants, licensors, partners and affiliates exclude all liability to you or any other person for any loss, cost, expense, claim or damage (whether arising in contract, negligence, tort, equity, statute or otherwise, and for any loss, whether it be consequential, indirect, incidental, special, punitive, exemplary or otherwise, including any loss of profits, loss or corruption of data or loss of goodwill) arising directly or indirectly out of, or in connection with, these Website Terms of Use or the use of this site by you or any other person.

Remedies limited

To the maximum extent permitted by law, the Company and its officers, employees, agents, consultants, licensors, partners and affiliates expressly limit their liability for breach of any nonexcludable condition or warranty/guarantee implied by virtue of any legislation to the following remedies (the choice of which is to be at the Company’s sole discretion):

• in the case of goods, to any of the following:

– the replacement of the goods or the supply of equivalent goods;

– the repair of the goods;

– the payment of the cost of replacing the goods or of acquiring equivalent goods; or

– the payment of the cost of having the goods repaired; and

• in the case of services:

– the supply of the services again; or

– the payment of the cost of having the services supplied again.

Release

You agree that your use of this site is at your own discretion and risk. You agree to release the Company and its officers, employees, agents, consultants, licensors, partners and affiliates from any claim, demand or cause of action that you may have against any of them arising from these Website Terms of Use or the use of this site by you or any other person. The Company may plead this release as a bar and complete defence to any claims or proceedings.

Force majeure

To the maximum extent permitted by law, and without limiting any other provision of these Website Terms of Use, the Company excludes liability for any delay in performing any of its obligations under these Website Terms of Use where such delay is caused by circumstances beyond the reasonable control of the Company, and the Company shall be entitled to a reasonable extension of time for the performance of such obligations.

General

Interpretation

In these Website Terms of Use, the following rules of interpretation apply:

• headings are for reference purposes only and in no way define, limit or describe the scope or

extent of any provision in these Website Terms of Use;

• these Website Terms of Use may not be construed adversely against the Company solely

because the Company prepared them;

• the singular includes the plural and vice-versa;

• a reference to a “person” includes an individual, a firm, a corporation, a body corporate, a

partnership, an unincorporated body, an association, a government body or any other entity;

and

• the meaning of general words is not limited by specific examples introduced by “including”,

“for example”, “in particular” or similar expressions.

Notifications

The Company may provide any notification for the purposes of these Website Terms of Use by email.

Costs

Except as specifically provided in these Website Terms of Use, each party must bear its own legal, accounting and other costs associated with these Website Terms of Use.

Assignment

You may not assign, transfer or sub-contract any of your rights or obligations under these Website Terms of Use without the Company’s prior written consent.

The Company may assign, transfer or sub-contract any of its rights or obligations under these Website Terms of Use at any time without notice to you.

Linking to this website

You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link from any website that is not owned by you. This Website must not be framed on any other site, nor may you create a link to any part of this Website other than the home page. We reserve the right to withdraw linking permission without notice.

No waiver

Waiver of any power or right under these Website Terms of Use must be in writing signed by the party entitled to the benefit of that power or right and is effective only to the extent set out in that written waiver. Any failure by the Company to act with respect to a breach by you or others does not waive the Company’s right to act with respect to that breach or any subsequent or similar breaches.

Severability

The provisions of these Website Terms of Use are severable and, if any provision of these Website Terms of Use is held to be illegal, invalid or unenforceable under present or future law, such provision may be removed and the remaining provisions shall be enforced.

Variation

The Company reserves the right to amend these Website Terms of Use and any other policy on this site at any time in its sole discretion and any such changes will, unless otherwise noted, be effective immediately. Your continued usage of this site will mean you accept those amendments. We reserve the right, without notice and at our sole discretion, to change, suspend, discontinue or impose limits on any aspect or content of this site. You may only vary or amend these Website Terms of Use by written agreement with the Company. Governing law and jurisdiction These Website Terms of Use will be governed in all respects by the laws of South Australia. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of South Australia and the courts of appeal from them.

Schedule 1 – Prohibited conduct

YOU MUST NOT:

• use any device, routine or software that interferes, or attempt to interfere, with the proper working of this site;

• engage in any action that requires, or may require, an unreasonable or excessively large load on our infrastructure;

• use this site to decipher passwords or security encryption codes, transmit any worms, viruses or Trojan horses, transfer or store illegal, threatening or obscene material or otherwise violate the security of any computer network;

• use this site to violate any applicable local, state, national or international law, to engage in any misleading or deceptive online marketing practices or for any fraudulent or malicious purposes;

• use any spider, robot or search/retrieval application or any screen scraping, data mining or similar data gathering device, process, program or means to access, retrieve or index any portion of this site;

• use this site by any automated means;

• use this site to transmit junk mail, spam or chain letters or pyramid schemes or engage in other flooding techniques or mass distribution of unsolicited email;

• access, retrieve or index any portion of this site for use in constructing or populating any database that is searchable online or for the purpose of soliciting or sharing reviews;

• interfere with the display of any advertisements appearing on or in connection with this site;

• reverse engineer, decompile, disassemble, adapt, modify, translate, frame or reformat any of the material contained on this site;

• reproduce, duplicate, copy or store any of the material appearing on this site other than for your own personal and non-commercial use;

• falsely imply that any other website is associated with this site;

• do anything that leads, or may lead, to a decrease in the value of the Company’s intellectual property rights in this site;

• use or exploit any of the material appearing on this site for, or in connection with, any business or enterprise (whether for profit or otherwise), including any business or enterprise that is in competition with this site;

• release to the public any news release, advertising material, promotional material or any other form of publicity or information relating to the Company without the Company’s prior written consent; or

• use this site to transmit any information or material that is, or may reasonably be considered to be:

– abusive, threatening, harassing, harmful, obscene, indecent, lewd, inflammatory, violent, vulgar, profane, racially, ethnically or otherwise objectionable or offensive in any way;

– libellous, defamatory, pornographic, sexually explicit, unlawful or plagiarised;

– infringing upon or violating any copyright, trademark, patent or other intellectual property or proprietary right;

– in breach of any duty of confidentiality by which you are bound, whether by way of a fiduciary or contractual relationship;

– in breach of any person’s privacy or publicity rights;

– a misrepresentation of facts, including the impersonation of any person or entity or a misrepresentation of an affiliation with any person or entity (including any sponsorship or endorsement);

– in violation of any applicable law, statute, ordinance or regulation, or encouraging of others to do so;

– containing any political campaigning material, advertisements or solicitations; or

– likely to bring the Company or any of its staff into disrepute.

Terms & CONDITIONS

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