The following terms and conditions (Terms) apply to all agreements entered into with Dilate Digital Pty Ltd, and all Services provided by Dilate Digital ACN 602 812 171. The Services include, but are not limited to; the website, social media pages, products and services sold, website optimisation services, website production, and online advertising services, as are outlined in our proposal. (Proposal).
By using the Services, you agree to be legally bound by these Terms. In these Terms “we”, “us”, “our” and “Dilate Digital” refers to Dilate Digital Pty Ltd ACN 602 812 171.
Terms and Conditions
1.1 You agree and continue to agree to use the Services in a manner consistent with all applicable laws and regulations, and in accordance with these Terms.
1.2 These Terms are incorporated into and are part of, any Agreement with Dilate Digital signed by you or in proposal form, confirmed by email.
Minimum Term, Renewal, and Termination
2.1 You agree to the minimum term of 1 month (Minimum Term). You authorise us to invoice monthly or annual regular payments ongoing, subject to the Agreement and these Terms.
2.2 If you terminate your use of the Services prior to completion of the minimum term, you must pay the Cancellation Fee within 30 days. The Cancellation Fee is our monthly service charge as specified in the Proposal or as otherwise agreed in writing prior to commencement.
2.3 At the end of the Minimum Term, your agreement to use the Services will automatically renew on a month by month basis, unless Dilate receives written notice of your intention to cancel the services 30 days prior to the end of the Minimum Term.
2.4 If the Services are renewed automatically on a month by month basis as per clause 2.3, should you wish to terminate the Services you must provide written notice within 30 days prior to each monthly renewal date.
2.5 You must comply with these Terms at all times in your use of the Services. You will not engage in any conduct that restricts or inhibits any other person from using or enjoying the Services, at the discretion of Dilate Digital. You agree to use the Services only for lawful purposes. You are prohibited from posting on or transmitting through the Services any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, racially, ethnically or otherwise objectionable material of any kind, including, but not limited to; any material which encourages conduct that would constitute a criminal offence, give rise to civil liability, or otherwise violate any applicable local, state, national or international law.
2.6 Subject always to Law, may elect to electronically monitor the Services for adherence to these Terms, and may disclose to the extent permitted by law any content, records or electronic communication of any kind (i) to satisfy any law, regulation or authorised governmental request, (ii) if such disclosure is necessary to operate the Services, or (iii) to protect the rights or property of Dilate Digital or its partners.
2.7 Dilate Digital reserves the right to prohibit conduct, communication, or content which it deems in its discretion to be harmful to individual users or other third-party rights, or to violate any applicable Law (Material Breach).
2.8 If you do not comply with these Terms and the breach cannot be remedied or is a Material Breach, Dilate Digital reserves the right to terminate the Agreement and your use of the Services at any time. In the case of any other breach of these Terms Dilate Digital reserves the right to terminate the Agreement if you do not remedy the breach within 30 days of receiving written notice from us specifying the breach and requiring you to remedy the breach. If we terminate the Agreement with you under this clause, you are not obligated to pay the Cancellation Fee.
3A. Google AdWords Management
3A.1 Dilate Digital will set up online advertising campaigns, and deliver Google paid search traffic to your website. If paid search traffic cannot be delivered to the website in question due to matters outside Dilate Digital’s control including the editorial policies of the search engines regarding the acceptance of advertiser web properties, then we will notify you of the situation in writing. Dilate Digital is not to be held liable in this situation.
3A.2 Costs associated with media and clicks generated from running this service may be charged directly to Dilate Digital by search engines. You authorise Dilate to utilise your reimbursed ad spend budget to the search engines for this purpose, subject to the budget agreed from time to time.
3A.3 All Google AdWords accounts initially set up by Dilate Digital are the property of Dilate Digital, and will not be provided to the client upon cancellation of their Google Adwords service. On termination of this Agreement Dilate Digital will on request from the client and at the client’s cost provide the client with a full export of the all Google AdWords accounts.
3A.4 You must comply with the search engine guidelines for Google AdWords Campaigns, which can be found at https://support.google.com/adwordspolicy.
3A.5 An AdWords campaign which is still in its minimum term can only be paused for a total period of time equal to 50% of the contract term. After this period, Dilate Digital reserves the right to charge a cancellation fee as per clause 2.2.
3B. Upload of Content to Customer Websites
3B.1 Dilate Digital will upload optimised content and tags to your website, where a web page is written in a language that our technicians are trained in. If a web page has been designed using languages that we are not skilled in, uploading of content will be the responsibility of the customer and/or their webmaster.
3B.2 Customers who provide Dilate Digital access to make changes to their website do so with the understanding that Dilate Digital is not liable for any errors which may occur in these updates. Dilate Digital must make all website changes with full care and the skill expected of a professional provider of the Services. , The Client agrees to have a regular backup system in place, and by signing the Agreement with us you warrant that you have a regular and secure backup system in place. Where the Services include website hosting by Dilate Digital, Dilate Digital must provide the backup and security services as specified in the Proposal.
3C. Website Design
3C.1 Website design services are provided as per your Proposal with Dilate Digital. An approximate timing schedule is provided at the time of the Proposal. Failure to provide content or other items within the specified time will delay the setup of the website.
3C.2 Your Website design costs may be subsidised by us, and if so, the amount of the subsidy will be noted on the first page of the Dilate Digital Agreement. If you discontinue the development of the website at any stage prior to completion, you are liable to pay this subsidised amount. Further, if you discontinue the development of the website at any stage prior to completion, you are also responsible for any fees associated with the completion of the website as outlined in your Proposal.
3C.3 After the launch of a website, the client is responsible for backing up their website on a regular basis. If requested to do so by the client, Dilate will provide assistance to the client regarding set up of its website backup. Dilate will take regular backups for websites hosted with us, however, we advise clients to take their own backups in addition. In the event that your website goes down or encounters another error, and it is hosted on a website server other than the Dilate Digital server, we are not responsible for bringing your website back online.
3D. Website Hosting Services
3D.1 Dilate Digital warrants that your uptime availability will be at least 99% except where the failure results from:
(a) A failure or malfunction in relation to any device or equipment, any software or power supply outside our control, unless caused by our wrongful act or omission;
(b) Your act or omission (or a person under your direction or control);
(c) A failure or malfunction of any software forming part of the Services, that was accepted by the customer without having been subjected to a testing regime due to its time or critical nature, including updates, patches, definitions etc;
(d) during scheduled maintenance windows, and any emergency maintenance and upgrade work;
(e) a requirement, direction or any other order issued by a court, government authority, administrative or judicial body;
(f) unauthorised or illegal access by any party to any party of the computer systems used to provide the Services including hacking, cracking, virus dissemination and denial of service attacks;
(g) any false breaches reported as a result of outages or errors of any Dilate Digital measurement system; or
(h) DNS propagation,
3D.2 If in any calendar month, should we fail to meet the Uptime SLA, we will refund to you, as your sole right or remedy, a 100% percentage credit of the fees for the relevant Service in that month. Service Credits are calculated against that month’s webhosting fees and charges only. You must request a Service Credit in writing via our email address email@example.com. All requests must be made within 30 days of the Uptime SLA breach occurring, and you must provide Dilate Digital with details of the breach claimed for verification purposes. If the breach is confirmed by Dilate Digital (based on Dilate’s records obtained from its monitoring services) to have occurred, then Dilate Digital will, within 60 days of your request being received, apply the relevant Service Credit to your account. Dilate Digital will provide information regarding uptime and access to Dilate’s records from its monitoring services as reasonably requested by the client from time to time to assist the client to monitor uptime performance.
3D.3 You will not be entitled to receive a Service Credit if, at the date of your request for a Service Credit, you are in breach of any of your obligations under your Agreement and these Terms and Conditions, including the obligation to pay Fees.
3D.4 You will be entitled to make only 1 claim for a Service Credit per month.
3E. Email setup
3E.1 Dilate will provide limited assistance in the setup of your email addresses via a selected third party. Instructions will be provided on the setup of the email access on your desktop and mobile devices in a single email client. Any further support regarding the setup or ongoing usage of your email will be provided via the third party, or can be requested from Dilate to be charged at our hourly rate.
3F. Search Engine Optimisation (SEO)
3F.1 Dilate Digital will undertake the optimisation of your website as per best-practise techniques used in the industry.
3F.2 Although we are the specialists in the industry, you agree and understand that SEO does not provide any guaranteed results and that results can vary based on your website history, industry, and many more factors. You agree to release us and any employee, owner, or director of Dilate Digital from being liable for any damages, cost, or loss of business due to any incidents and/or issues relating to any search engine’s actions.
3F.3 Websites which fail to comply with the following guidelines are excluded from any expectations which may have been set with respect to the SEO results:
(a) Where the submitted site is not the destination URL including 301, 302 and DNS redirects.
(b) Without content which can be readily indexed by a search engine, including but not limited to sites which contain only images, frames or flash content.
(c) That rely heavily on content or links to content created for another website, such as affiliate content.
(d) Which result in a 404 error or have frequent downtime.
(e) Which are secure such as https pages
(f) Where the “robots.txt” file is set-up in a manner which disallows crawling by search engine spiders and web robots.
(g) Where the website’s content is predominantly a duplicated version of content found on other website/s.
(h) If the website contravenes any other listing and SPAM guidelines as outlined by Google or any other search engine.
3F.4 You agree and understand that if you alter your SEO keywords after your initial selection of the keywords, Dilate Digital has the right to charge you additional fees provided that the additional fees are notified to you prior to commencement of any such additional work.
3G. Website Content Maintenance
3G.1 Adhoc website maintenance including content updates is charged at our then current hourly rates with a one (1) hour minimum and has a five (5) business day turnaround time. Website maintenance packages will have content changes administered 1-2 Business Days after requested. However, at times work will be completed in a faster manner through our ticketing system.
Suspension or cancellation of Services
4.1 You expressly and irrevocably agree that we reserve the right to suspend or cancel any or all of the Services if:
(a) You have any outstanding invoices or account.
(b) Your account is in dispute or dispute resolutions procedure, court order, judgment, findings, or determination.
(c) You fail to comply with any provision of the Agreement or these Terms.
(d) There is evidence of fraudulent, illegal, defamatory, offensive activities, or any activity in breach of a third party’s rights.
(e) We deem your use of our services may jeopardize the operation of the service, us, or our suppliers.
(f) We deem any other reason as satisfactory to protect us, our staff and/or our suppliers.
4.2 If your account is cancelled under this clause:
(a) You must pay the Cancellation Fee within 30 days.
(b) We may delete all data held prior to cancellation after expiry of at least 90 days following cancellation.
(c) We may perform any Lawful action after provision of reasonable prior notice of our intention to do so.
(d) You release us of any claim arising from suspension, cancellation or termination of any of the Services pursuant to this clause, but termination does not release either party from any rights arising from any breach of this agreement or other claim either party has against the other prior to termination.
Customer Service Policy
5.1 Dilate Digital provides proactive account management, as well as a number of reporting tools in order for clients to view the progress of their campaigns. Email and telephone support will be provided for any queries which are in direct relation to your digital marketing campaigns with Digital Digital. Additional support or consultation services can be purchased if required.
Pricing and Billing
6.1 All quoted prices are in Australian dollars and exclude GST unless otherwise noted. Tax invoices will be sent upon payments.
6.2 You acknowledge and agree that payments will be processed by us, or a third party by credit card or debit payments, and you provide your credit card or bank account details for this purpose and authorise us to make these payments.
6.2 You acknowledge and agree that Dilate Digital may change its pricing structure at any time after the expiry of the first 6 months of the term of this Agreement.
Payment outside of a contract on a month by month structure will be subject to change.
6.3 Dilate Digital reserves the right to employ the services of a debt collector in the event that any Fees remain unpaid 30 days after they were due. We reserve the right to recover any costs associated with recovering this debt.
6.4 Should any payment be unsuccessful, Dilate Digital reserves the right to charge a reasonable and proper failed payment fee.
6.5 Dilate Digital reserves the right to amend pricing in the Agreement if errors have been made.
Warranty disclaimers and representations
7.1 You expressly agree that use of the Dilate Digital Services is at your sole risk. The Dilate Digital Services are provided on an “as-is” and “as-available” basis. Dilate Digital expressly disclaims all warranties of any kind, express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose or non-infringement. Notwithstanding any other provisions of these terms and conditions, where legislation implies any condition or warranty, and that legislation prohibits us from excluding or modifying the application of, or our liability under, any such condition or warranty, that condition or warranty will be deemed included but our liability will be limited for a breach of that condition or warranty to one or more of the following: (a) if the breach relates to goods, (i) the replacement of the goods or the supply of equivalent goods, (ii) the repair of such goods, (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods or (iv) the payment of the cost of having the goods repaired; and (b) if the breach relates to services, (i) the supplying of the services again or (ii) the payment of the cost of having the services supplied again.
7.1.1 You expressly agree that upon delivery and launch of any website built by Dilate Digital, you will notify us of any required changes as soon as possible and in any event by no later than 30 days after the delivery and launch date. Dilate Digital will consider, in good faith, whether changes notified within this period will be made by Dilate Digital at no additional cost to any provided full website build quotation. It is entirely at Dilate Digital’s discretion as to whether these changes can be provided within the quoted cost of the website or should be charged at our hourly rate, upon which GST will be charged in addition. Any changes or additions requested beyond the range of this 30 day period will be charged at our hourly rate, upon which GST will be charged in addition.
7.2 Dilate Digital is not responsible for URLs dropped or excluded for any reason.
7.3 Dilate Digital does not represent, warrant, or guarantee that your URLs will achieve a favourable position, or any position. We cannot control or guarantee which, if any, search engines will accept the submission of your site. Dilate Digital will not be responsible for delays or failure of performance resulting from internet service provider delivery problems or failure, or any communication or delivery problems associated with the customer’s order details, such as incorrect email address or URL address.
7.4 Please note that Dilate Digital (a Google AdWords Certified Company) is not directly affiliated with Google™. No Google™ related services, claims, and guarantees are performed and underwritten by Dilate Digital.
8.1 Notwithstanding the security precautions taken against disclosure of information, there are certain conditions that exist on the Internet generally which are outside Dilate Digital’s control and could result in a breach of security. You hereby expressly waive any claim against Dilate Digital arising out of the loss of data through corruption, piracy, and breach of security or for any other reason outside the Dilate Digital’s reasonable control.
Liability and Indemnification
9.1 To the maximum extent allowed by Law, Dilate Digital and any of its parents, members, subsidiaries, affiliates, service providers, licensors, officers, directors or employees shall not be liable for any direct, indirect, special, incidental or consequential damages (no matter how they arose, including negligence), or for interrupted communications, lost data or lost profits, arising out of or in connection with the Services or because the Services are not operational or accessible.
9.2 You will at all times indemnify and hold harmless Dilate Digital and its officers, employees and agents (those indemnified) from and against any loss (including legal costs and expenses) or liability incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
(a) a breach by you of your obligations under the Agreement or these Terms;
(b) any misuse of the Services by you or any of your customers or any third party related to you;
(c) any wilful, unlawful or negligent act or omission of you, or
(d) any infringement by you of any third party’s intellectual property rights.
9.3 Each indemnity under these Terms is a continuing indemnity and will constitute a separate and independent obligation of you from your other obligations under the Agreement or these Terms and will survive the completion and termination of the Agreement.
10.1 Copyright in the Dilate Digital website (including text, graphics, logos, icons, sound recordings and software) is owned or licensed by us. Other than for the purposes of, and subject to the conditions prescribed under, the Copyright Act 1968 (Cth) and similar legislation which applies in your location, and except as expressly authorized by these terms and conditions, you may not in any form or by any means:
(a) adapt, reproduce, store, distribute, print, display, perform, publish or create derivative works from any part of this website; or
(b) commercialise any information, products or services obtained from any part of this website without our written permission.
Use of Trade Marks
11.1 You acknowledge that all intellectual property of Dilate Digital such as trademarks, trade names, patents, registered designs and any other form of intellectual property rights derived from the Services or any other material or services as may be provided by Dilate Digital (Dilate Digital IP) remains the property of Dilate Digital. All intellectual property rights in the website, including the website design and content, other than the Dilate Digital IP, will vest in the client.
11.2 You warrant that you are entitled to use any intellectual property used by you in relation to the Services, including content provided to Dilate Digital to display on your website.
11.3 You indemnify and will at all times keep Dilate Digital indemnified against any action, claim, suit or demand, including a claim, suit or demand for or liability to pay compensation or damages and costs or expenses arising out of or in respect of any breach of any third party’s intellectual property rights.
11.4 You must immediately notify Dilate Digital of any claim, demand, threat or notice of proceedings against you relating to any breach of intellectual property rights.
11.5 If you use any of our trademarks in reference to our Services, you must include a statement attributing that trade mark to us. You must not use any of our trademarks:
(a) in or as the whole or part of your own trademarks;
(b) in connection with activities, products or services which are not ours;
(c) in a manner which may be confusing, misleading or deceptive;
(d) in a manner that disparages us or our information, products or services (including this website).
Privacy and Confidentiality
12.1 Some of our Services may contain links to other websites (“linked websites”) which are not owned or operated by Dilate Digital. Those links are provided for convenience only and may not remain current or be maintained. We are not responsible for the content or the terms and conditions and privacy practices associated with linked websites.
12.2 Our links with linked websites should not be construed as an endorsement, approval or recommendation by us of the owners or operators of those linked websites, or of any information, graphics, materials, products or services referred to or contained on those linked websites, unless and to the extent stipulated to the contrary.
Privacy and Confidentiality
Partner Referral Arrangements
14.1 If you have been introduced to Dilate Digital via a third party reseller, some information may be shared with these partners including you email, name and products purchased for reporting purposes.
15.1 Access to our Services may be terminated at any time by us without notice. Our disclaimers will nevertheless survive any such termination.
15.2 These Terms will take effect and be construed in all respects in accordance with the laws of the State of Western Australia. The parties irrevocably submit to the jurisdiction of Western Australia for all proceedings arising in connection with these Terms.
(a) All notices, requests, demands, waivers, consents, and other communications, given by one party to another under this Agreement must be in writing and must be:
(i) delivered by courier;
(ii) sent by pre-paid mail;
(iii) sent by facsimile; or
(iv) sent by email,
to that party at the address set out in this Agreement, or to any other address of which the relevant party has advised the other party by written notice from time to time.
(b) Documents posted within Australia will be deemed to have been received on the seventh (7th) Business Day after posting.
(c) Documents delivered by courier or sent by facsimile will be deemed to have been received on the first (1st) Business Day after the day of dispatch.
(d) Documents sent by email will be deemed to have been received when the email (including any attachments) is sent to the receiving party, unless the sending party receives a notification of delivery delay or failure within 24 hours of the email being sent.
(e) Despite clause 15(b), a facsimile is not deemed to have been received unless at the end of the transmission the senders’ facsimile machine issues a report confirming the successful transmission of the number of pages in the notice.
(f) Despite clauses 15(b) and 15(d), if a facsimile or email is transmitted or sent after 5pm on a Business Day in the location of the recipient, or on a day that is not a Business Day, it will be deemed to be served on the next Business Day.
15.6 In these Terms the following terms have the following meanings:
(a) ‘Business Day’ means means any day other than a day gazetted as a public holiday in Perth, Western Australia.
(b) “Law” means the common law and the provisions of any statute, rule, regulation, proclamation, ordinance or by-law, present or future, whether state, federal or otherwise.