In this document, the words "you" and "the client" is used to describe the individual who purchases our services, his or her business or individual(s) acting on his or her behalf. ‘SmartOPS’, 'us' and ‘we’ are used to describe the Smart Online Promotion Services Pty Ltd, ABN 61611573972 products and services as well as Smart Online Promotion Services Pty Ltd itself.
- 1 - General Information
- 1-1 Information and contents provided by SmartOPS on this website and from other resources should be accurate and clear. Use of any information obtained by way of SmartOPS is at the client's own risk and SmartOPS specifically denies any responsibility for the accuracy or quality of information obtained through its website, services or by other methods. To understand your rights and obligations you need to read all of the documents that relate to you and the service(s) you select.
1-2 SmartOPS reserves the right to refuse service and/or access to its products and servers to anyone.
1-3 SmartOPS reserves the right to suspend or cancel a customer’s access to any or all services provided by SmartOPS when SmartOPS decides (at its absolute own discretion) that the account has been inappropriately used or otherwise abused by violating our fair use policy.
1-4 When we send you email on your nominated email address used to register for your account we consider this message to have been delivered to you and have been read and understood by you. You must ensure you always have access to your nominated email account and monitor it regularly for any updates or announcements from SmartOPS.
1-5 SmartOPS does not allow any of following content or websites to be stored in its servers;
1-5-1 Illegal material, including copyrighted works, commercial audio, video or music files, and any material of any type in violation of any Federal, State or Local law or regulation anywhere in the world.
1-5-2 Adult material, including pornography, erotic images, or otherwise lewd or obscene content of any type.
1-6 In addition to item 1-5, websites are not allowed to link to this type of content. What constitutes ‘adult material’ is entirely at the discretion of SmartOPS.
1-7 Client shall pay all fees and charges for the services he/she has selected in the areas of graphic design, software development and the entire duration of the website contract as specified on the main SmartOPS website and have been requested by the client.
1-8 SmartOPS shall honour the pricing schedule for the duration of the website plan contract selected and approved by the client as well as any approved and agreed upon service fee for provision of graphic design and software development services provided that the extent of the required work is not changed by the client.
1-9 SmartOPS reserves the right to change the terms, conditions and notices under which SmartOPS services are offered, including but not limited to the charges associated with the use of SmartOPS services. Only SmartOPS can modify these terms and conditions of service.
- 2- Domain Name Registration and Transfer
2-1 During the contract term of a website plan, domain name purchase and registration is included in the price of your website plan. SmartOPS will renew your website domain and hosting each year during the term of the contract.
2-2 We will, if requested, transfer ownership of the domain name to you after the initial contract period, provided that there is at that time no money owing by you to SmartOPS.
2-3 SmartOPS will transfer your existing domain names to a domain name registrar business partner of SmartOPS for any website plan which is being offered to you by SmartOPS.
- 3 - Links to Third Party Websites
- 3-1 SmartOPS may contain links to other websites (“Linked Sites”). The Linked Sites are not under the control of SmartOPS. We are not responsible for the contents of any Linked Site, including without limitation any linked contained in a Linked Site, or any changes or updates to a Linked Site.
3-2 SmartOPS is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by SmartOPS or any association with its operators.
- 4 - Creative Brief and Responses
4-1 Each client is solely responsible for preparing and providing detailed and clear descriptions of each of his or her selected services and website plans to SmartOPS.
4-2 All content and material provided to SmartOPS to be included in a website design or in a graphic design or software development project by the client must comply with all applicable Australian laws and regulations. SmartOPS cannot verify or assess supplied material for such compliance requirements and it is the sole responsibility of the client to provide SmartOPS with complying content and material.
4-3 SmartOPS is under no obligation to review a creative or revision brief for any purpose, including accuracy, completeness of information, quality or clarity. An initial response will be of the same calibre as the examples in the SmartOPS portfolio. SmartOPS may decide, in its sole discretion, to decline to respond to a creative or revision brief.
4-4 SmartOPS is under no obligation to supply responses that differ substantially from their style, as it is assumed that the client has selected SmartOPS based on previous projects represented in its portfolio.
4-5 If images are required in the website design, SmartOPS will supply adequate images suitable for the client nominated number of pages in the initial design. If more images are required in addition to initially approved images the client must provide those images to be included in the website design. Alternatively SmartOPS can purchase and include those images on behalf of the client. The client agrees to compensate SmartOPS for the initial price of purchased images and associated service costs by SmartOPS. If any images supplied by the client require modifications, retouching or any adjustment in order to make them adequate for a website environment, any associated graphic design fees will be quoted to the client for approval prior to commencement of work on those images.
4-6 We own all material (including intellectual property rights) developed by us or our personnel, or at our or their direction. We may permit you to use this material, or other material licensed by us, as part of the service you have selected. This permission is subject to any conditions which we may impose from time to time and will cease when the service is cancelled.
- 5 - Completion Date
5-1 SmartOPS must work together with you to complete the website in a timely manner. We agree to work expeditiously and endeavour to complete the website in the fastest possible time based on the type of plan and the options and inclusions you've selected. The completion date of the website will be announced to you and will be reflected on a temporary countdown page on the home page of the website before completion and launch. Completion date of graphic design and software development services will be announced to you for each occasion based on the extent of the work requested by the client.
5-2 You shall send us your website content as soon as possible, along with any photos, discs, brochures, logins or advertising material necessary to enable SmartOPS to complete the website project within the planned timeframe. You must also provide clear briefing and description of your requested graphic design and software development services. SmartOPS can be approached by the client for provision of contact details of content copywriters if required. The financial agreement and quality control of the supplied material by the nominated copywriter is not the responsibility of SmartOPS and they must be addressed in a separate contract between the client and the copywriter.
5-3 If you fail to supply sufficient website content, or fail to provide that content promptly, you acknowledge that the completion period referred to at item 5-1 above to be extended to the extent that the website project is so delayed. Notwithstanding such delay, you shall pay the monthly fee on the date of your planned launch of your website and at monthly intervals until the end of the contract term.
- 6 - Website Changes
6-1 Any changes required for your website plans must be requested by email and we will provide you with a written quote outlining the changes proposed and the costs involved to carry out those changes. All such quotes are valid for a period of 30 days from date of issue. If the changes are part of standard plans packages and inclusions this will automatically be calculated and will be added to your monthly subscription payments. The extra fees are not charged unless the requested changes and upgrades are successfully deployed and implemented to your website plan.
6-2 Once we receive your written approval for the quote, we will complete the scope of work as quoted within a reasonable time.
6-3 We may need your consent to do certain things. You may nominate (in writing) operational contacts who are authorised to give your consent and to have access to our support and maintenance staff. If you do not nominate any operational contacts we may rely on the authority of any of your employees who tell us they have authority to give your consent, as long as we act in good faith.
- 7 - Loss of Service
7-1 We will endeavour to maintain network stability and satisfactory service levels, however our hosting service providers may from time to time perform routine maintenance, service and upgrade. When possible, we may provide reasonable notice by any means we deem satisfactory.
7-2 We may experience outages beyond our control caused by any of the following; force majeure (any 'act of God' including those induced by negative human activities), war, invasion, act of hostilities, civil war, rebellion, military power or confiscation, terrorist activities, nationalism, governmental/quasi-governmental sanction, restraint, embargo, prohibition or intervention, blockage, labour dispute, general strike, computer hackers, lockout or failure of utilities (electricity, telephone, etc), failure of hardware (our hardware as well as that of a third party), failure of software, failed software or hardware upgrade or any other failure as caused by us or you, our suppliers or any third party.
7-3 We may, at our discretion provide notification of outages whether planned or unplanned.
7-4 You release us from any potential claim(s) with relation to outages and any loss of business/service suffered by you and any third party.
- 8 - Unpaid Accounts
8-1 SmartOPS will perform its obligation pursuant to this agreement at all times during the contract term that there is no money that is owing and has remained owing by you to SmartOPS for more than 14 days. During this period, SmartOPS shall make reasonable endeavours to permit you to access information and data held by SmartOPS on your behalf.
8-2 If an amount owing to SmartOPS by you remains outstanding for three months, you shall be deemed to no longer require SmartOPS to retain any information or data on your behalf, and SmartOPS may remove such data from their records in such manner as SmartOPS sees fit.
8-3 All invoices issued to you are payable prior to their due date as indicated on the invoice. SmartOPS reserves the right to claim all outstanding amounts to our business from you by any means necessary. Upon referral of your unpaid invoices to a debt collection agency, you agree to addition of $980+GST or 20% of the original invoice, whichever is a larger amount, to your outstanding invoice which will be payable by you even if you respond to the debt collection agency in time and pay the initial fees in your outstanding invoice(s). In addition to above, all other costs of legal proceedings and fees will be collected from you via these proceedings.
8-4 the client agrees to indemnify Smart Online Promotion Services Pty Ltd from all cost and expenses of debt collection process as well as the entirety of any future legal action which was taken to collect those debts and resolve the matter via legal procedures. The client agrees to reimburse all legal and service costs introduced to Smart Online Promotion Services Pty Ltd as a result of such procedures.
- 9 - Limitation of Liability
9-1 SmartOPS does not warrant that you will receive continual and uninterrupted services during the term of a website plan contract.
9-2 In no event will SmartOPS, its directors, agents or employees should be liable to you or any third party for any damages, including any lost profits, lost savings or any other incidental, consent special damages arising out of the operation of or any inability to operate the website, hosting, domain or email services, even if SmartOPS has been advised of the possibility of such damages.
9-3 You acknowledge that SmartOPS makes no warranty in relation to your customer base, or the quality, frequency or inflow of your customers, or customers that will contact you during the term of a website plan contract or otherwise.
9-4 You are liable to us for any breach of the agreement by you that causes foreseeable substantial loss to us. You are not liable to us for any consequential losses we suffer or for any costs, expenses, loss or charges that we incur which are not a direct result of something you have done (except under an indemnity granted to us under this agreement).
9-5 SmartOPS is not liable to your end users in any way. If an end user makes a claim against us in relation to the use of your service, you indemnify us against (and must pay us for) any loss or damage we suffer in connection with that claim.
9-6 Other than your statutory rights as a consumer, to the extent permitted by law we expressly exclude all conditions and warranties, rights or remedies, liabilities and other terms that may be implied by custom, statute or common law. Other than to your statutory rights as a consumer, we are not liable to you for any consequential losses you suffer or for any costs, expenses, loss or charges that you incur.
9-7 Our agreement(s) with you is governed by the laws of the state of New South Wales and you and us submit to the non-exclusive jurisdiction of the courts of that state.
- 10 - Disclaimer
10-1 SmartOPS and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees and agents, shall not be liable, under any circumstances or legal theories whatsoever, for any loss of business, profits or goodwill, loss of use or data, interruption of business, or for any indirect, special, incidental or consequential damages of any character, even if SmartOPS is aware of the risk of such damages, that result in any way from the Customer’s use or inability to use the online services or the software, or that results from errors, defects, omissions, delays in operation or transmission, or any other failures of performance of the website, servers or the software.
10-2 SmartOPS makes no warranties or representations of any kind, whether expressed or implied for the service it is providing. SmartOPS also disclaims any warranty of merchantability or fitness for particular purpose and will not be responsible for any damages that may be suffered by the clients, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or errors or omissions of the client.
10-3 SmartOPS expressly limits its damages to the client for any non-accessibility time or other down time to pro-rata monthly charge during the system unavailability. SmartOPS specifically denies any responsibilities for any damages arising as a consequence of such unavailability.
10-4 The terms and conditions of this agreement supersede any previous agreements or statement of terms and conditions between SmartOPS and the client of SmartOPS services.
- 11 - Payment- Refund Policy
11-1 Refunds are only applicable and possible for all or a portion of the service fees if the work for provision and completion of those services is not started yet. The amount of partial refunds when applicable for each service is determined by SmartOPS only. All instances of partial or full refunds will be made at the sole discretion of the SmartOPS.
11-2 Refunds are available for Domain Names that have been requested by the client but not yet have been registered by SmartOPS.
- Website Plans Standard Term and Conditions of Service
1- These terms and conditions are additional terms and conditions for SmartOPS standard terms and conditions of service for provision of serviced website plans by SmartOPS.
2- These terms and conditions start when you apply for our services and we confirm acceptance of your request.
3- You must ensure that any person you allow to use the service complies with the agreement as if they were you.
4- Client agrees to a 2 year contract for any of the website package services offered by SmartOPS, beginning upon the date SmartOPS has designed, built and published the website or from the date when the countdown to launch the website in the temporary home page of the website reaches zero, whichever comes sooner.
5- You must reasonably co-operate with us to allow us to setup your website plan(s) and supply the service to you efficiently and within approved time frame. If you fail to supply adequate information and content for your website in time we will consider our service fees applicable and will charge your nominated credit card regardless of if your website is live or not.
6 - All of offered subscription packages allow for one hour for initial briefing, one hour for revision briefing and two hours for application of any suggested chagnes by the client after revision briefing. Any extra briefing, revision or development time required by the client before or after the launch of the website will be quoted accordingly and invoiced prior to completion of those modifications.
7 - If the client fails to supply adequate and enough information and material in a timely manner prior to ending of the launch countdown and the website launch is delayed by more than 14 calendar days, the client agrees to an increase to the website monthly subscription fees equal to the initial amount of subscription for the duration of the contract until the necessary material is provided and the website is launched.
8- Website design files remain the property of SmartOPS for the duration of the contract. SmartOPS cannot release the website design files to be hosted on other servers and different suppliers.
9- The amount of fees for a subscribed website plan and its options and inclusions is for the first month from the initial date of the website launch as specified on your launch date and on your countdown page. We charge your credit card on a monthly basis equal to the cost of your ordered plan(s) and the options and inclusions selected by you at any time. The amount will be for all the plans, options and inclusions and other service fees applicable for that particular billing period.
10- All fees and charges specified on our website are exclusive of GST. The applicable amount of GST will be added to your monthly payments when we charge your nominated credit card.
11- We will try to include on your monthly payments, all charges for the relevant billing period however this is not always possible and we may include these unbilled charges in later payments for upcoming months. If you have several services and plans with us, SmartOPS will put the cost of all those services to you on a single bill.
12- When you change something on your website plan(s), the cost of these changes will be reflected on your next monthly bill. If you upgrade your plan to the next level, you will automatically enter into another 2 year contract with SmartOPS for the new plan and with the terms and conditions applicable to our services at the time of your upgrade.
13- Fair Use Policy is applicable to all "Limitless" website and e-commerce website plans offered by SmartOPS. If you generate unnecessary number of pages and upload non optimised and large files without considering the limitations and nature of Internet media you might be violating our fair use policy. SmartOPS decides the violation of our fair use policy at its absolute own discretion. We might ask you to change your methods of using our serivces on in extreme cases, we might be forced to suspend our services or not to renew your contract.
14- You're responsible to always keep your credit card information updated. When our system detects that your credit card is close to its expiry date we might send you notifications to remind you to enter the valid card details before the expiry date of your credit card is passed.
15- If you miss payment of your monthly subscription for your ordered plan(s) and services, we will notify you and add the amount you owe us to your next payment. If you miss your payment for three consecutive months SmartOPS will contact you for immediate payment of all outstanding fees to SmartOPS. If you fail to pay your outstanding amount you will be referred to a debt collection agency for further legal action as specified in our standard terms and conditions. Failure to pay your outstanding bills will entitles SmartOPS to cancel your plans and services without notice. If you require us to re establish and re activate the service, extra fees and waiting periods might be applicable.
16- At the end of 2 year contract we will offer you a new 2 year contract with range of services, fees and terms of service effective at the time of contract. SmartOPS reserves the right not to offer you a new contract at the end of your contract term.
17- If you want to cancel your website plan at any time, you must pay the sum of the monthly subscription fee of your remaining period of your contract to SmartOPS. Upon receipt of payment from you, all your website design and content files will be provided to you on a CD or DVD and will be delivered to your nominated address via Australian registered post.