1.1 In this document, ‘we’, ‘our’ and ‘us’ means Practice Advantage Pty Ltd ABN 49 106 480 139
1.2 This Agreement outlines the terms and conditions that apply to your use of our Services.
1.3 The Services we are to provide to you (herein referred to collectively as “Services”) and the initial period we are to provide them to you for are identified in the emails we send you after we accept your order for Service. The specifics of the Services are detailed on our website (‘the Services’).
1.4 The Services and this Agreement will be automatically renewed for the same period as the initial period unless this Agreement is terminated by you or us in accordance with these terms and conditions.
1.5 In this Agreement ‘Delivery’ means provision of services commencing:
1.5.a for newsletters and guides, the date your payment is received.
1.5.b for internet based Services, the earlier of;
– the date which Services are made available or
– 30 days after an online draft of the Services are made available to you.
1.5.c for design Services, the earlier of;
– the date which Services are made available or
– 30 days after a draft of the Services are made available to you.
1.6 In this Agreement ‘Content” means files, text, data, audio, images, video, applications and other materials contained in the Services provided or made available by us.
2. Commencement of the Agreement
2.1 This Agreement commences on the date we accept your order for Services.
3. Services provided
3.1 In these terms and conditions ‘Service’ refers to
– our provision of space and/or software on one of our Servers;
– email hosted on our servers;
– web design, website development;
– web service maintenance
– mobile device applications;
– social media content delivery:
– domain name registration Services;
– a connection for web-based Services;
– Services provided by third parties which we resell to our clients;
– graphic design, newsletters, brochure, logo and content
to the pages level ordered and displayed on our website.
3.2 We use due care and skill in providing the Services in accordance with this Agreement. There may also be statutory guarantees, conditions or warranties imposed by consumer-protection laws that apply to Services we supply, and which cannot be excluded. However, given the nature of IT systems (including our Services’ reliance on systems and Services that we do not control or own). we cannot promise that our Services will be continuous or fault-free.
3.3 We will attempt to perform all scheduled maintenance at times which will affect the fewest clients. If scheduled maintenance requires the Service to be offline for more than 60 minutes we will post details of the scheduled maintenance at least 48 hours in advance of the maintenance of our website. If we need to perform unscheduled maintenance that requires the Service to be offline for more than 30 minutes, we will post details of the event on our website and/or social media accounts as soon as possible.
3.4 You accept that dates we give you for delivery are our best estimate, are given in good faith and may be subject to change without notice.
3.5 You agree to use your best endeavors to assist us in the timely and cost effective provision of Services to you. This includes, but is not limited to
3.5.a promptly responding to feedback requests of drafts provided to you;
3.5.b notifying immediately of any modifications or content changes that may affect us in the delivery your Services to you;
3.5.c advising us immediately of any material event that may affect us in the delivery your Services to you;
3.5.d not doing anything whatsoever that may impede us in the delivery your Services to you.
3.6 We grant you and any Authorised Users a non-exclusive, non-transferrable, non-assignable, non-sublicensable, revocable right to access and use the Service for your own lawful internal business purposes in the manner we make it available to you in accordance with this Agreement.
3.7 We may add or remove functionality or features, and we may suspend or stop a Service altogether. We may post on the Site and/or will send an email to the primary address associated with your account to provide notice of any material changes to the Services. It is your responsibility to check your email address and/or primary email address registered with us for any such notices. You agree that we shall not be liable to you or any third party for any modification, cessation or discontinuation of the Services.
3.8 Where you use an application to connect to one of our Services, we will use our best endeavours, but are not obligated to assist, or support you in relation to that application. Services include (but not limited to), your email client applications, online appointment setting applications and online payment facilities
3.9 Our liability to you is governed by clause 19 of this Agreement.
4. Ownership of Equipment
4.1 Unless otherwise agreed, you obtain no rights to the hardware and other infrastructure and facilities used by us to deliver the Services.
5. Intellectual Property
5.1 All rights, title and interests in any technology, techniques, content, software, designs or trade mark that is used in, or provided by us, as part of the Services is owned by us or will vest in us on creation, or is licensed to us. You may use the technologies, techniques, content, software, designs and trademarks as permitted by this Agreement. We otherwise reserve all rights in relation to them.
5.2 Except as set out in this Agreement, you are not permitted to copy, adapt, modify, reverse engineer or assemble or try to obtain the source code, or create derivative works based on the Service without our express written permission
6.1 If any clause of these terms and conditions is held to be invalid or unenforceable in whole or in part, the invalid or unenforceable wording may be severed from this Agreement and the remaining terms of this Agreement continue in force.
7.1 You must not assign or otherwise transfer your rights or obligations under this Agreement without our prior written consent, which we will not unreasonably withhold. Any request to assign or transfer must:
(a) be in the form we require, and include details of the assignee or transferee; and
(b) be accompanied by the transfer fee specified in the form.
7.2 We may assign or otherwise novate or transfer our rights and obligations under this Agreement to:
(a) a related body corporate, including without limitation as part of a change in how we provide the Services or as part of a partial or full restructuring of our business; and
(b) another person as part of the sale, or restructuring, of all or part of our business, and you agree that, if we do this, we may transfer all necessary information (including, without limitation, personal information and credit card details) to the related body corporate or other person, and they may use that information, in order for them to be able to continue providing the Services to you. If you do not agree to the assignment, novation or transfer, you may terminate.
8. Changes to Terms
8.2 We may give you notice by sending any email to you and/or by posting a general notice on our blog and/or our website on our Legal Statements page. If you do not wish to accept the amended terms and conditions, you may terminate this Agreement by giving us notice.
9. Entire Agreement
9.1 These terms and conditions constitute the entire Agreement between us and you. It supersedes all prior Agreements, understandings and representations whether oral or written.
10. Governing Law
10.1 These terms and conditions are governed by the laws in force in the New South Wales. Both parties agree to submit to the non-exclusive jurisdiction of the Courts of that State.
11. Notifications & Communications
11.1 Notifications in relation to your account with is will be send to your nominated email address. By entering into this Agreement you agree to receive other email communications of a marketing and promotional nature unless you opt out of our mailing list. You will not be able to opt-out of critical Service notifications, renewal, billing and account notifications, scheduled downtime notifications or any other communications deemed to be an essential part of our Service to you.
11.2 Critical Service notifications or scheduled downtime notifications or any other communications deemed to be an essential part of our Service to you will be posted on our website, social media accounts.
12. Changes to Services
12.1 You may change your Services to a higher package by providing 30 days written notice of your intention to do so and paying the cost difference between your existing package (initial and ongoing) and the current subscription price. The specifics of the Services are detailed on our website. We reserve the right to charge an additional cost where the change is different to a specific package.
12.2 You may after a period of six months from delivery change your Services to a lower package by providing 30 days written notice of your desire to do so. The specifics of the Services are detailed on our website
12.3 You may upgrade to a current version of your existing package at any time by providing written notice of your intention to do so and paying the cost difference between your existing package (initial and ongoing) and the current subscription price. The specifics of the Services are detailed on our website.
13. Registering and renewal of a Domain Name
13.1 In respect of domain names, we advise you that we are a reseller for the registrar UberGlobal and Enom Inc.
13.2 We do not warrant or guarantee that the domain name applied for will be registered in your name or is capable of being registered by you. Accordingly, you should take no action in respect of your requested domain name(s) until you have been notified that your requested domain name has been registered.
13.3 Both the registration of the domain name and its ongoing use are subject to the relevant naming authority’s terms and conditions of use and you are responsible for ensuring that you are aware of those terms and conditions and that you comply with them. You irrevocably waive any claims you may have against us in respect of the decision of a naming authority to refuse to register a domain name and, without limitation, agree that the administration charge paid by you to us shall be non-refundable in any event.
13.4 We accept no responsibility in respect of the use of a domain name by you. Any dispute between you and any other individual or organization regarding a domain name must be resolved between the parties concerned and we will take no part in any such dispute. We reserve the right, on our becoming aware of such a dispute, at our sole discretion and without giving any reason, to either suspend or cancel the domain name, and/or to make appropriate representations to the relevant naming authority.
13.5 We are not obliged to renew your domain name if you do not confirm to us that the domain name should be renewed. In such circumstances we are not liable for any loss or damage resulting from non-renewal of your domain name. We are not obliged to renew your domain name where you have unpaid invoices or if you are in breach of any terms of this Agreement.
13.6 Our primary method of communication for domain renewal purposes is via email. We will not be held responsible for the non-renewal of your domain name if your email contact details are not kept up to date. Information on how to keep your contact details up to date can be found in the client control panel on our website.
13.7 If you close your account with us but do not transfer your domain name to another registrar, we are under no obligation to renew your domain or contact you in relation to the renewal of that domain..
14. Passwords, content and email data
14.1 You will keep any passwords or log-in details used in connection with the Service secure and you are totally responsible for when and how your account with us is used and the actions of any people you give your password and log-in details to.
14.2 You are solely responsible for your data and any content you use or store in connection with your Service. You must hold, and continue to hold, all intellectual property rights in your data and contents (including, without limitation, copyright and trademark rights), or be licensed to do so. The terms under which you hold or license your data and content must permit us to carry out our obligations to you in providing the Service. You grant us a licence to use and reproduce all your data and content in order to fulfil our obligations under this Agreement.
14.3 You must ensure that you comply with our Acceptable Use Policy terms in clause 22 in relation to any data or content you use or store in connection with your Service.
14.4 You will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by you onto or downloaded by you from the server does not contain any computer virus and will not in any way, corrupt the data or systems of any person.
14.5 You are solely responsible for dealing with persons who access your data and you will not refer complaints or inquiries in relation to such access to us.
14.6 You agree that if, in our sole discretion, you are using the Services in a way which is not legitimate, is not in compliance with this Agreement or any law that we may suspend, disable, limit or terminate the Services or deny you access to the Service without notice, including taking down any of your data or content
14.7 You must not store data on our servers that cause you to breach our Acceptable Use Policy
15. Archiving and Backup of Your Data
15.1 You are solely responsible for the back-up of your data (including email files). You must maintain a recent copy of your data at your premises at all times. We will not be liable for incomplete, out-of-date, corrupt or otherwise deficient data recovered from our backups.
15.2 We will archive your data stored by us on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, we will restore from the last known good archive. In the event of corruption of all of our archives, or in the event that an old archive is used to restore data, you should be prepared to upload your data to your web site.
15.3 You must not
16. The use of Spam and Virus Filters
16.1 We can use spam and virus filters and, to the maximum extent permitted by law, this may require us to use third party equipment or Services to monitor and filter email traffic between our equipment and the Internet. To the maximum extent permitted by law, we will not be liable for any loss or damage resulting from the use of spam or virus filters.
17. The Need to Change to a New Operating Platform
17.1 Unless otherwise agreed, non-partner provided Services are provided by us from our data centres in Australia. We reserve the right to migrate your web site to a new Service platform if our supplier ceases to provide appropriate support or your particular server fails or becomes unreliable.
17.2 We will advise you of such a change but we will not take any responsibility for Service failure if you have failed to keep your contact details up-to-date or if you have not checked the operation of your Service post-migration and notified us of any required changes to the Service configuration.
18. Client’s Warranties, Liabilities and Undertakings
18.1 You indemnify us against, and must pay us for, any loss or damage we suffer relating to:
a) the provision of the Service to you; and
b) your use, or attempted use, of the Service.
You indemnify us against (and must pay us for) any costs, including legal costs, relating to your breach of this Agreement. However you are not liable to us for any loss to the extent it is caused by us (for example, through our breach of this Agreement or our negligence).
18.2 At the time of entering into this Agreement you are not relying on any representation made by us which has not been stated expressly in this Agreement, or on any descriptions or specifications contained in any other document, including any catalogues, web site or publicity material which we have produced.
18.3 You indemnify us against all claims arising out of your registration and use and renewal of registration of your chosen domain name, unless and to the extent that the claim arises out of our breach of this Agreement, or our negligent act or omission.
18.4 You indemnify us and to any third party under any circumstances for any direct, indirect, incidental, special, punitive, or consequential loss or damages or for loss of profit, business revenue, goodwill or anticipated savings which result or may result from the use of Services provided to you by us.
19. Our Warranties and Liabilities
19.1 We accept liability for the supply of the Services to the extent provided in this Agreement.
19.2 We do not warrant that the Services:
(a) provided under this Agreement will be uninterrupted or error free;
(b) will meet your requirements, other than as expressly set out in this Agreement;
(c) will be free from external intruders (hackers), virus or worm attack, denial of Service attack, or other persons having unauthorised access to the Services or systems of ours; or
(d) will produce any particular results, data,internet search ranking, website traffic, sales or other return.
19.3 Subject to clause 19.4:
(a) we exclude all liability for indirect, incidental, special and consequential loss or damage of any kind, loss or corruption of data, loss of use, loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this Agreement and/or its subject matter;
(b) the Services are provided on an ‘as is’ and ‘as available’ basis;
(c) we make or give no express or implied warranties including, without limitation, the warranties of merchantability or fitness for a particular purpose, or arising from a course of dealing, usage or trade practice, with respect to any goods or Services provided under or incidental to this Agreement;
(d) no oral or written information or advice given by us, our resellers, agents, representatives or employees shall create a warranty or in any way increase the scope of the express warranties hereby given, and you may not rely on any such information or advice;
(e) our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services will be limited to the charges paid by you in the 6 months preceding the claim in respect of the Services which are the subject of any such claim. Any claim must be notified to us within one year of it arising.
(f) In the event that this Agreement constitutes a supply of goods or Services to a consumer as defined in the Competition and Consumer Act 2010 (Cth) nothing contained in this Agreement excludes, restricts or modifies any remedies or guarantees where to do so is unlawful. To the full extent permitted by law, where the benefit of any such remedy or guarantee is conferred upon you pursuant to the Competition and Consumer Act 2010 (Cth) our sole liability for breach of any such remedy or guarantee shall be limited to the remedies available under that Act.
19.4 We specifically exclude any warranty as to the accuracy or quality of information received by any person via your server and in no event will we be liable for any loss or damage to any data stored on the server. You are responsible for maintaining insurance cover in respect of any loss or damage to your data stored on the Server.
20. Suspension and Termination of the Service
20.1 We may suspend or terminate your account if:
(a) you breach this Agreement and fail to rectify any remediable breach within 7 days of us notifying you to do so;
(b) you become insolvent;
(c) you fail to pay your invoice when it falls due;
(d) you are declared bankrupt; or
(e) we are ordered to do so by a court or pursuant to an arbitration award.
20.2 In addition to any other rights we may have under this Agreement, you agree that we may, without notice to you and without any liability to us, amend, alter or take down your data or content if we:
(a) receive an order from a court or other competent body requiring us to do so;
(b) are directed to do so by the Australian Communications and Media Authority, any other regulatory body or authority or industry association;
(c) consider in our sole discretion that you are breaching this Agreement including without limitation, by infringing third party intellectual property rights, or because your data or content is defamatory, illegal, obscene, breaches a person’s privacy or breaches our Acceptible Use Policy .
20.3 We may also terminate your account for our own reasons and without fault on your part providing we give you not less than 30 days prior written notice
20.4 From time to time we may have to suspend or disconnect the Service without notice or deny your access to the Service during any technical failure, modification or maintenance involved in the Service. We will use reasonable endeavors to procure the resumption of the Services as soon as reasonably practicable. In these circumstances you will remain liable for all charges due throughout the period of suspension.
20.5 If your account has been suspended or terminated due to your breach, reactivation of your account will be at our discretion. If we agree to reactivate your account, we will require payment in full of all outstanding amounts and payment of a reactivation fee.
20.6 You may terminate your account or any individual Service with us for any reason at any time by notifying us by email. Unless you are terminating your account due to a breach of this Agreement by us refunds are available for monies paid in advance.
20.7 If we wish to terminate your Service for reasons other than a breach of these conditions, we can do so by giving you 30 days written notice. In this circumstance, we will refund any remaining unused credit on your account.
20.8 If your account is closed for whatever reason you must pay all outstanding charges immediately.
20.9 We are under no obligation to provide you with a copy of your data or content if we have suspended or terminated your access to the Service for your breach. If we provide you with a copy of your data or content in such circumstances, we are entitled to charge a fee for doing so. If we terminate your account or any Service in such circumstances we may also at our discretion destroy your data or content. If your data or content is destroyed it may not be recoverable.
20.10 You acknowledge that if your access to the Services is suspended or terminated, you may no longer have access to the Content that is stored with the Services.
21. Fees, Charges and Payments
21.1 All charges payable by you to us for the Services will be in accordance with the relevant scale of charges and rates published from time to time by us on our website and will be due and payable immediately upon receipt of our invoice, or on other terms separately agreed with us by you. The price of the Services we provide you will remain fixed for the period covered by the payment; that is, monthly, quarterly or annually. After that time you may be billed at the rates current on our website at the time the Service is renewed.
21.2 Payment must be made in advance by credit card or alternatively bank direct deposit where the subscription period is not less than 3 months.
21.3 Prices published on our web site are exclusive of any government taxes or charges unless otherwise stated.
21.4 We will only provide the Services to you where you have paid for the Services in full. If any sum payable is not paid on or before the due date, we reserve the right, at our discretion, to suspend the provision of Services to you until we receive the required payment (including any late payment fees, interest, debt recovery charges and reactivation fees) in full.
21.5 If you fail to make payment in accordance with the terms of this Agreement, you will become liable for any reasonable costs incurred by us in recovering the debt (including any legal fees, collection agency charges or any other reasonable costs) and interest on the outstanding amount, calculated at the daily rate of 10% per annum, from the due date of the payment.
21.6 If you fail make payment in accordance with these terms, you may forfeit any standing discount on your subscription. We reserve the right to renew your subscription at the current prevailing price shown on our website.
21.7 Upon registration of a credit card account, you give us authorisation to debit your credit card for all charges. If you are billed on a monthly basis, the billing cycle begins from the date you register. We will not automatically charge your card for any period greater than 3 months without your consent.
21.8 You consent to us obtaining a report from a credit reporting agency on your credit worthiness if you choose to pay by credit card.
21.9 If we receive notice of a chargeback, declined or reversed payment from a credit card company in connection with payments made by you for the Services, we reserve the right to suspend the provision of Services to you until we receive the required payment (including any bank charges we incur, late payment fees, interest, debt recovery charges and reactivation fees) in full.
21.10 Subject to clause 21.11, no refunds will be given for unused portions of payments in advance (including payment of yearly contracts) unless the account has been terminated due to our breach of these terms and conditions, we exercise our rights under clause 20.6, or you exercise your rights under clause 20.1.
21.11 In the event this Agreement constitutes a supply of goods or Services to a consumer as defined in the Competition and Consumer Act (Cth) (‘Act’), and you cancel your Service because we have failed to meet one or more of the consumer guarantees under the Act, we will refund to you any unused portion of your Service fee and any other amount you have prepaid, as well as any Service fee where the Services provided did not meet the consumer guarantees.