General Terms and Conditions

1. Definitions

In this Agreement the following words have the following meanings:

“After Hours” means from 17:30 to 09:00 hours Monday to Friday and all day Saturday, Sunday and Public Holidays;
“Agreement” means the agreement between the parties, as set out in any Proposal and any Special Conditions, these Conditions and includes any schedule, annexure or exhibit to any of them;
“Bond” means any monies paid up-front by a Customer by way of a bond or security payment in connection with the provision of Services by LevelUp;
“Business Hours” means Monday to Friday from 09:00 to 17:30 hours excluding Public Holidays;
“Commencement Date” means the date on which any Proposal is accepted by the Customer or the date from which any Services are provided, whichever is the earlier;
“Conditions” means these terms and conditions and includes any of them as may be amended, novated, supplemented or replaced from time to time as may be published by LevelUp on its website (levelupdigital.com.au);
“Content” means all materials, information, photography, writings and other creative content;
“Copyright” means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Australian and/or any international law relating to copyright;
“Customer” or ‘you” means the person (other than LevelUp and any Guarantor) named above and any person who:
1. accepts or agrees to a Proposal;
2. places an Order,
and includes a person on whose account or on whose behalf the Proposal or Order is made, or appears to have been made, in any case, whether alone or together with any other person; and includes their respective heirs, successors and assigns;
“Go Live” means the Work being published and made live for the use of the ultimate intended audience on the Internet or on an Intranet;
“Goods” means any goods sourced by LevelUp;
“GST” has the meaning given to it under A New Tax System (Goods and Services Tax) Act 1999 (Cth);
“Guarantor” means a person who gives a guarantee, indemnity or guarantee and indemnity in relation to any obligations of the Customer under this Agreement and when two or more persons are named as Guarantor, a reference to Guarantor is a reference to them jointly and each of them severally;
“Hours” means, where a customer agrees to acquire Services from LevelUp for a specified number of hours, that number of hours;
“Initial Term” means any time or period set out in any Proposal during which the Services will first be provided;
“Intellectual Property Rights” means all intellectual property rights, including but not limited to:
1. patents, Copyright, registered designs, trademarks, know-how and any right to have Confidential Information kept confidential; and
2. any application or right to apply for registration of any of the rights referred to in this clause 1.o.
“LevelUp” means LevelUp Digital Pty Ltd ABN 90 630 527 212 and their heirs, successors and assigns;
“Ongoing Management” means the ongoing work to keep Software or a website functioning and secure. This includes, but is not limited to, data management, backups, maintenance, upgrades and Software patches;
“Open Source Software” means computer Software for which the source code and associated rights normally reserved for Copyright holders are provided under a software licence that permits users to study, change, and improve the Software;
“Order” means any order provided to LevelUp for Goods and/or Services in any form;
“Quote” means a quote, estimate, or proposal provided by LevelUp for the provision of Goods and/or Services by LevelUp;
“Period” means a particular number of hours, half-days, days, weeks, fortnights, months, or any other period, as may be agreed between LevelUp and the Customer as the period during which some Services will be provided;
“Plan” means any arrangement between LevelUp and a Customer for Goods and/or Services provided or to be provided by LevelUp in connection with Work agreed to be done or progressed;
“Proposal” means and includes any Quote, Order, Rate Schedule, or Plan for the provision of Goods and/or Services by LevelUp to you;
“Public Holiday” means any day which is a public holiday throughout New South Wales, other than a bank holiday;
“Rate Schedule” means any description or schedule of rates, charges or conditions for the provision of Goods and/or Services by LevelUp to you;
“Rates” means the hourly rates for Work done or to be done, as set out in any Rates Schedule or Proposal but if no hourly amount is specified, means an hourly amount set by LevelUp from time to time, currently $215.00 per hour plus GST during Business Hours and $350.00 per hour outside Business Hours. The hourly rates do not include other fees chargeable under a Proposal or this Agreement – for example, the hourly rates do not include the cost of any Software licences or other expenses payable under a Proposal or this Agreement;
“Renewal Term” means any period during which the Services will be provided following the Initial Term, which normally will be of a duration equal to the Initial Term;
“Return/Cancellation Fee” means a fee charged pursuant to clause 7.g. as set by LevelUp from time to time, currently $500.00 plus GST;
“Service Level” means the standard of service as defined in a Proposal, otherwise it means reasonable endeavours;
“Services” means the provision of any services by LevelUp including Work, work product, advice and recommendations and any other services as described or defined in any Proposal at the Service Level;
“Software” includes software and any installation, update, associated software and any services provided in connection with any of these things;
“Special Conditions” means any written special conditions applicable to a particular Proposal;
“Staged Work” means Work where LevelUp has provided you with a staging link to a digital copy of the Work, such Work being Work for which you have sought no changes for 30 days and which LevelUp deems to have been finalised;
“Sum Due” has the meaning given to it in clause 13.c. of this Agreement.
“Work” means anything LevelUp may do, provide, customise, produce or acquire for you and includes creating code, databases, applications and processes, configurations and business applications, Software and websites, and testing, troubleshooting, installation and configuration, consulting, scoping, planning and documenting and further includes quoting for complex items.

2. Interpretation

In this Agreement, unless the contrary intention appears:

Words denoting the singular number include the plural number and vice versa;
Reference to any gender shall include every other gender;
Reference to any Act of Parliament, Statute or Regulation shall include any amendment currently in force at the relevant time and any Act of Parliament, Statute or Regulation enacted or passed in substitution therefore;
Headings and words in bold are for convenience of reference only and do not affect the interpretation or construction of these Conditions;
All references to dollars ($) are to Australian currency;
A reference to time is to Sydney, Australia time;
A reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;
A reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to these Conditions unless the context otherwise dictates;
A recital, schedule, annexure or description of any party forms part of these Conditions;
A reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented or replaced from time to time;
Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
A reference to “discretion” is a reference to an absolute discretion;
A reference to “includes” or “including” means includes (or including, as the case may be) without limitation;
A reference to “will” imports a condition not a warranty, and
A reference to bankruptcy or winding up includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration (as defined in section 9 of the Corporations Act 2001 (Cth)), being subject to administration and the occurrence of anything analogous or having a substantially similar effect to any of those conditions or matters under the law of any applicable jurisdiction and to the procedures, circumstances and events which constitute any of those conditions or matters.

3. Term of the Agreement and Conflicts

This Agreement between you and LevelUp:

is effective upon the Commencement Date;
shall remain in force for the period of any Initial Term:
automatically renews for a subsequent Renewal Term beginning on the day immediately following the end of the Initial Term, unless you give us thirty (30) days prior written notice of your intention not to renew this Agreement;
may be reviewed by us quarterly to address any necessary adjustments or modifications and may be varied by us in our discretion without notice to you.

The terms set out in these Conditions are in addition to and should be read in conjunction with any Special Conditions in any Proposal and our terms and conditions as found on our website (LevelUpdigital.com.au). Together, these constitute the terms under which Services are provided to you. Where a conflict may exist between such terms, the terms set out in these Conditions are subject to any Special Conditions and are subject to any updated version of these Conditions as found on our website.

4. Quotes

Validity and effect: LevelUp may give a Customer a written Quote for the supply of Goods and/or Services. Quotes will only be valid for 30 days unless otherwise specified in the Quote.
Varying or withdrawing Quotes: LevelUp may vary or withdraw a Quote at any time in its discretion and without prior notice to a Customer up until the time when the Quote has been accepted in writing by the Customer and a Proposal in connection with that Quote has been agreed in writing between LevelUp and the Customer.

5. Orders

Order forms: A Customer may place an Order for Goods and/or Services with LevelUp. The Customer must include in the Order the Customer’s full legal name or description and any applicable ABN or ACN number, their address (including in the case of an individual, their residential address) together with any relevant Quote number and date (including the full name, ABN or ACN and such address of any person on whose behalf any order is placed).
Approval of Orders: Each Customer will need to sign the Order, or have it duly executed on its behalf, unless the Order is placed by email.
Reliance on appearance of validity: Absent actual knowledge to the contrary, LevelUp may rely upon the apparent validity of an Order. If any Order is signed or sent by email by a named person, that person warrants that the Order is, and it is acknowledged the Order is deemed in favour of LevelUp to be:
1. signed by, and duly authorised by, both the person who signed the Order and the person who sent the email; and
2. duly authorised by the person on whose behalf the Order is placed or apparently placed.
Acceptance and payment for Orders: An Order has no effect unless or until:
1. the Order is accepted by LevelUp either in writing or by LevelUp commencing to perform the relevant Work or to provide the relevant Goods; and
2. LevelUp has received from the Customer, in the case of Work, any up-front payment or Bond in relation to the Work or, the case of Goods, full payment in clear funds for the Goods and any related costs.
No obligation to deliver: Without limiting the foregoing, LevelUp is not obliged to deliver any Order until LevelUp has received from the Customer payment in clear funds for the Order and any related costs, or, in the case of Goods, where LevelUp is unwilling or unable to complete the Order for any reason provided it refunds any payment made for the Goods by the Customer in respect of the Order.
Credit checks: For the purposes of ascertaining the credit standing or history of a prospective Customer to whom LevelUp is considering extending credit or payment terms, the Customer hereby consents to LevelUp undertaking a credit reference check in respect of the Customer.
Cancellation of Orders: A Customer will not cancel an Order unless LevelUp agrees to do so in writing in its discretion. The Customer acknowledges that, amongst other things, LevelUp cannot cancel an Order once Work has begun, or the manufacturer or supplier has despatched the relevant Goods and that such despatch often occurs the same day as the order for the relevant Goods is placed by LevelUp.

6. Working Together

Processes and procedures: LevelUp has process and procedures that it follows in the course of the provision of its Services and the supply of Goods. The Customer agrees to co-operate with LevelUp and to comply with such processes and procedures as advised to the Customer from time to time.
Authority: You authorise us to do all things necessary or convenient in order to perform the Services for you, which may include accessing your hosting account, disk space and your staff, contractors, suppliers and others as and when required by us from time to time, and creating code, databases and applications.
Production schedules: Timetables will be established by LevelUp, and all reasonable endeavours will be made by you and LevelUp to adhere to them so far as possible. Where Timetables are not able to be adhered to, LevelUp may adjust dates accordingly. LevelUp may charge for additional costs incurred due to increases in time necessary or convenient in order to manage or deliver the Goods and/or Services.
Timetables indicative: Unless otherwise agreed, Timetables are indicative and LevelUp reserves the right to adjust Timetables during any project due to circumstances outside LevelUp’s control. Timetables do not factor in any extensions of time resulting from delays arising from your internal decision-making/information gathering processes, delays in the provision of Content, information and instructions by you to LevelUp, delays due to any action or inaction on your part or on the part of any third party, delays arising from any external factor, delays from your unavailability or absence, or delays arising from any changes you may request to the scope of any Work. You must pay LevelUp for any additional costs and expenses arising from any such delays.
Priority scheduling: Estimates are based on a reasonable time schedule and may be revised to take into consideration any request that you make that the Work be done in priority. Requested priority schedules, including those that require After Hours work, will be subject to additional charges as specified in a Proposal, as agreed between the parties, or if not specified or agreed, then as determined by LevelUp in its discretion.
Prompt instructions: You agree to provide prompt and comprehensive instructions as LevelUp may request from time to time.
Your environment: In order for your existing environment to qualify for our monitoring, maintenance, and management services, the following requirements must be met:
1. we must agree in writing to support your environment as at the Commencement Date;
2. you must have current and active support from the vendor or another supplier for any third party Software;
3. any items that don’t meet our requirements will not be supported by us, except at our discretion.
Business Hours: Subject to this Agreement:
1. website and Software support, maintenance, and management Services will be provided to you by us during Business Hours;
2. hosting, monitoring and remediation Services will normally be provided to you by us 24/7, and
3. any other Services will be provided by us as specified in any Proposal or these Conditions, otherwise they will be provided by us as agreed or as determined by us in our discretion.
Information: You will promptly provide us with any reasonable information that we ask you for and that we require in order to provide the Services to you.
Quality assurance: While LevelUp will also be checking the Work, you will be responsible for:
1. checking the wording, content and functionality in any Work that we create for you, to ensure that the wording, content and functionality are true, correct and working to your satisfaction, and
2. trying out all the links to ensure they are links to the correct place.
Completion of the Work: The Work will be deemed completed and finalised to your satisfaction (“Completed”) when:
1. you confirm that the Work is acceptable to you, including by giving your sign-off or authority for the Work to Go Live, or
2. LevelUp provides you with Staged Work.
30-day maintenance: Subject to this Agreement, from the date the Work is Completed, the responsibility of LevelUp in relation to the Work is limited to fixing any bugs or defects in the Work that you may bring to our attention during the period up to 30 days from that date, provided always that LevelUp may charge you, and you will pay for, the rectification of any bugs or defects arising in connection with:
1. any action or inaction on your part or on the part of any third party;
2. any external factor, or
3. from any changes you may request to the scope of the relevant Work.
Copy: All text must be supplied in a common digital text format (TXT, RTF, HTML, MS Word, Open Office, Google Docs, etc.).
Images: Graphics and photographs are to be supplied in a common digital format to us. Photographs must not exceed a file size of 5MB each (unless by prior arrangement). We will be entitled to charge for any processing of files that we need to attend to in connection with your project.
Branding: All logos and branding must be provided in an industry standard format (preferably EPS, PDF or Illustrator).
Rectification: If you, your employee, agent or contractor attempts to update, edit or alter the Work, pages, infrastructure, source files or hosting management in a way that causes or contributes to any damage to any of them, LevelUp may undertake Work that LevelUp considers necessary or convenient in order to rectify that damage at your cost and expense.
Testing procedures: The Customer will follow the instructions of LevelUp with regard to testing or troubleshooting any problems and that if such testing or troubleshooting does not resolve the outstanding problems, LevelUp will, subject to these Conditions, allocate such resources as it considers reasonable towards their resolution at your cost and expense.
Subcontractors: We reserve the right to use subcontractors or external suppliers on the basis that they will be subject to this Agreement.
Promotion: We are confident that your expectations will be exceeded and as such we reserve the right to use your website, associated graphics, and any unused ideas and development in the promotion of our Services. You agree to allow us to retain a credit and link in the code and/or on the footer of any Work of yours that we have helped to create, unless you advise us in writing if you do not agree to this within thirty (30) days of entering the relevant Agreement for Work with us.

7. Pricing and Rates

Rates exclude GST: All Rates. expenses and amounts charged or quoted for Goods and/or Services by LevelUp to you, including any amounts referred to in this Agreement, are exclusive of GST and any other applicable taxes or government charges (unless otherwise stated in writing by LevelUp).
GST: If GST is imposed on any supply made under or in accordance with this Agreement, the Customer must pay LevelUp an additional amount equal to the GST payable on or for the taxable supply at the same time when the invoice is due or paid, subject to the Customer receiving a valid tax invoice in respect of the taxable supply.
Rates Schedule: The Customer must pay for Services at the Rates set out in any applicable Proposal or this Agreement from time to time during the provision of the Services. LevelUp reserves the right, in the absence of any agreement or arrangement, to charge on a quantum meruit basis for any Services that LevelUp provides to the Customer.
Goods: The Customer must pay for any Goods supplied by LevelUp at the quoted cost, or if no cost is quoted, then at the cost price of the Goods plus 30%.
Vary Rates: LevelUp reserves the right to vary any Rates (subject to any fixed pricing for specific periods in any Plan) from time to time, in its discretion and without notice to you. Normally, if there is any increase in the underlying costs incurred by LevelUp in connection with the supply of Goods or Services to a Customer, LevelUp will increase its Rates.
Site visit fees: The Customer acknowledges that site visit fees may be charged in addition to the Rates at LevelUp’s discretion and that the amount of the site visit fee will depend upon where the Services are provided.
Return/Cancellation Fee: Where LevelUp arranges a return or refund on behalf of a Customer, or where an Order is cancelled by a Customer after acceptance by LevelUp, LevelUp may charge the Customer a Return/Cancellation fee to cover the administration costs of LevelUp in processing the return or refund, or in processing the Order, the cancellation and any refund. LevelUp may deduct the Return/Cancellation fee from out of any moneys otherwise due to be refunded to the Customer by LevelUp.
Expenses: The Customer must pay all and any out of pocket expenses incurred by LevelUp in connection with the provision of the Services to the Customer addition to the Rates and other fees referred to in this Agreement, upon written demand. Such out of pocket expenses include Software licencing, printing, photography, colour printouts, laminating, illustrations, shipping, handling, courier services, travel costs, flights, car hire, petrol, insurance, taxi fares, accommodation and related meal allowances, tolls and car parking expenses.
Separate charges for Goods and Services: LevelUp may in its discretion charge for Goods separately from Services or may charge for Goods and Services together.
Calculation of increments: Where a Rate is calculated based on increments of time, e.g. 1 hour or 30 minutes, LevelUp will charge the applicable rate for the whole increment of time even if work is done during part of, but not for the whole of, that increment of time.
Blocks of time: Where a customer agrees to buy Hours during a Period, payment must be made in advance for the Hours at the rate applicable pursuant to the Rates Schedule, each such rate being less any discount agreed in writing between the Customer and LevelUp in respect of the Hours (each such rate being a “Block Rate”).
Calculation of fees for Block Rates: Services included in a Block Rate during the Period:
1. are calculated in accordance with the applicable minimum time periods and increments set out in the Proposal;
2. are only provided by LevelUp during Business Hours provided that where, during the Period, LevelUp provides the Customer with Services After Hours or on Public Holidays the Customer will pay for such Services separately and in addition to the Block Rate; and
3. are only provided by LevelUp during the applicable Period. Where Services are provided for a number of hours that is less than the relevant Hours during a Period:
  1. the hours remaining unused in the Hours for that Period cannot be rolled over into any subsequent Period; and
  2. LevelUp is not liable to refund, reimburse, pay damages or otherwise compensate or indemnify the Customer in respect of those unused hours.
Ongoing management: Ongoing management of your systems and Software will only be provided to the extent (if any) specified in your Proposal. To the extent such management is not included, then you are responsible for the ongoing management of the website or Software, and you indemnify us against any loss or damage arising directly or indirectly from website downtime, security breaches or other direct or indirect losses arising from your management.
Hosting: Hosting and/or support for your hosting environment may not be included in your Proposal. If hosting, or hosting support is not included, then you are responsible for contacting the chosen host for support relating to hosting matters. We will charge for costs incurred liaising with the hosting company and supporting you with hosting related issues. We will also charge for costs incurred due to differences in hosting environment if installation and management exceeds standard time frames. Differences include delays caused by slow server speeds and any incompatibility with hosting environments.
Domain names: All domain name registrations are subject to availability and registration rules. You must manage your domain name(s) and the payment of the related fees unless we agree in writing that we will manage the domain name(s) on your behalf. Such management will be at your cost and expense.
LevelUp managing domain names: Where we manage a domain name, we normally use Domain Directors Pty Ltd ABN 13 100 504 596 trading as TPP Wholesale (“TPP”) to manage your domain names. You acknowledge and agree that you are bound by the “TPP Wholesale Domain Terms” of TPP and other applicable terms which are found on their website (tppwholesale.com.au). You indemnify us against any loss or damage arising directly or indirectly from any failure of services provided by TPP or any alternate provider who manages domain names that we may use from time to time.
Browser variance: Our websites are tested against the most common browsers and devices as exclusively determined by us. Support Services for specific browsers or devices will only be provided subject to prior written agreement with us.

8. Services and Plans

Service and Plan variations: Normally, LevelUp offers its Services and Plans as are referred to in a Proposal. LevelUp may withdraw the provision of, or vary the scope or terms of, or add to or change, the Services, Plans and any Proposal, without notice to you, from time to time in our discretion.
Further Services: Services supplied and the Rates to be charged for such Services will be as set forth in the relevant Proposal and this Agreement. Where the Customer seeks further Services to those outlined in the Proposal, the Rates for those further Services will be as set out in the Proposal, but if no Rates for further Services are set out in the Proposal, the further Services will be charged at Rates to be determined by LevelUp unless otherwise agreed between the parties.
Copies on request: LevelUp will provide the Customer with a copy of the current Rates Schedule upon request. Proposals are tailored for particular Plans and are available to Customers participating in the Plan.

9. Delivery, Title and Risk

Delivery subject to payment: Websites and commissioned Work will Go Live or be provided as Staged Work upon and subject to payment in full of all project fees and Sums Due to LevelUp by you.
Delivery liability: LevelUp will use all reasonable endeavours to dispatch Goods by the due date but does not accept any liability for non-delivery or failure to deliver on time where this is caused by circumstances beyond the reasonable control of LevelUp, including, for example, due to failures in supply to LevelUp or delays caused by third parties, such as delivery companies or manufacturers.
Availability to accept delivery: The Customer must be available to accept the Goods at their nominated delivery address Monday to Friday 09:00-17:00hrs unless otherwise arranged.
Passing of risk: Delivery is deemed to take place when the Goods are delivered to the Customer’s nominated address, whereupon risks of loss, breakage and all damage and all other risks pass to the Customer. Nothing in this clause 9.d. will affect title to the Goods.
Obligation to insure: The Customer will ensure that Goods are adequately insured from the time they are ordered until delivery. LevelUp will not insure the Goods.
Retention of title: Until LevelUp receives full payment in cleared funds for any moneys due to LevelUp by a Customer on any account or for any reason:
1. title to, and property in, Goods and/or Work supplied to such Customer remains vested in LevelUp and does not pass to the Customer;
2. the Customer must hold those Goods and/or Work as fiduciary bailee and agent for LevelUp and must not sell, modify, dispose of, destroy or otherwise deal with them;
3. the Customer must keep any Goods we supply to them separate from its other goods and maintain such Goods and their labelling and packaging intact;
4. where a Customer deals with Goods and/or Services in breach of these Conditions, the Customer is required to hold the proceeds of any sale of those Goods and/or Services on trust for LevelUp in a separate account (however any failure to do so will not affect the Customer’s obligation to deal with the proceeds as trustee and remit them to LevelUp);
5. LevelUp may, without prior notice, enter into any premises where it suspects those Goods may be, take possession of those Goods and sever and remove those Goods (notwithstanding that they may have been attached to other goods not the property of LevelUp) and for this purpose, the Customer hereby irrevocably authorises and directs LevelUp (and its employees and agents) to enter into such premises as its duly authorised agent and the Customer hereby indemnifies and holds harmless LevelUp from and against any related costs, claims, allegations, demands, damages or expenses or any other acts or omissions arising from or in connection with, such entry, repossession or removal,
6. The Customer irrevocably appoints LevelUp its attorney to do anything LevelUp considers necessary in order to enter such premises and repossess the Goods as contemplated by this clause 9.f.

10. Returns and Claims for Goods and Services

General returns policy: Notwithstanding anything in these Conditions, the Customer acknowledges that LevelUp supplies Goods subject to all applicable conditions, including returns and claims policies, of any relevant manufacturer or supplier. The Customer will accept Goods subject always to these Conditions and the terms of such conditions and will indemnify and hold harmless LevelUp in respect of any further or other obligation or any failure or default on the part of that manufacturer or supplier.
Customised Goods not returnable: Where Goods:
1. have some element of customisation for the Customer;
2. are supplied pursuant to an Order for Goods that is in the opinion of LevelUp special or unusual;
3. are obtained from overseas;
4. are obtained from a supplier who is no longer trading;
5. are otherwise not readily returnable by LevelUp to the manufacturer or supplier; or
6. any related services may not be cancelled,
7. return the Goods to LevelUp;
8. claim a refund from LevelUp;
9. cancel the related services; or
10. require LevelUp to return the Goods, to pay or arrange any refund, or to cancel the related services.
Duty to inspect: The Customer will inspect all Goods immediately upon their delivery. Within 7 days of such delivery a Customer may give written notice to LevelUp of any matter or thing, by reason of which the Customer might wish to return the Goods, ask for a refund, or make a claim. If no such notice is given on time, the Customer will accept the Goods without any such return, refund or claim.
Return condition: Where a Customer is entitled to return Goods under these Conditions, the Customer must return the Goods in their original condition and unopened, provided always that where, upon opening the packaging it becomes apparent that the Goods are different to what is described on the packaging or that the Goods are faulty, the Goods may be returned.
Return costs: The Customer will pay all costs and expenses incurred by LevelUp in arranging the return of the Goods to a manufacturer or supplier and/or the cancellation of any related services unless that manufacturer or supplier pays such costs.
Consequences of use, installation, customisation or sale: The Customer will indemnify and hold harmless LevelUp in respect of all allegations and claims in respect of Goods and/or Work once such Goods and/or Work have been used, installed, customised or re-sold by the Customer (without prejudice to any recourse of such a Customer to the manufacturer of the Goods).

11. Utility of goods and services, functionality and fitness for purpose

Service limitations given the science of computing: The Customer acknowledges that a reasonable incident of the Services may involve trial and error and that it is a science applied often in novel or unknown circumstances and involving experiment. In particular, the Customer acknowledges that the Services may involve tests, troubleshooting, advice and recommendations that may prove incorrect, inappropriate, or ineffective, particularly in an attempt to cure a problem a Customer is having. While LevelUp will make what it considers in its discretion to be all reasonable endeavours to provide appropriate tests, troubleshooting, sound advice and good recommendations in order to assist Customers, the Customer will always indemnify and hold harmless LevelUp in the provision of its Services to the Customer.
Reasonable assistance limits: LevelUp is only obliged to provide what it considers, in its discretion, to be reasonable assistance in the circumstances (including with the installation and customisation of new Software for a Customer or any other Work) under any Proposal and the Customer will pay for additional Work at the Rates unless otherwise agreed. Without limiting the discretion of LevelUp to determine what reasonable assistance is, normally, reasonable assistance is limited to work done during Business Hours over a period of time not exceeding any period that LevelUp has allowed or allows for the Work or has estimated or estimates the Work will take, whether or not notice of the time allowed or estimated is given by LevelUp to the Customer.
Recommendations, suitability, functionality and fitness for purpose:
The parties acknowledge that:
1. LevelUp may recommend that the Customer purchase Goods provided by third parties from time to time;
2. Recommendations may be made in situations where the Customer has made known to LevelUp the purpose for which the Goods will be used or some function sought to be fulfilled;
3. The Customer acknowledges that LevelUp has no control over many factors involved with the suitability, function or fitness for purpose of Goods in an existing or new computer environment, e.g.
  1. the compatibility or ability of the Goods to fit into or perform to expectations in the receiving computer/internet environment; or
  2. the behaviour of a third party supplier, e.g. in relation to support;
4. The Customer acknowledges that for a whole number of reasons outside the control of LevelUp, the Goods may fail to meet the Customer’s expectations or may not turn out to be fit for all or any of the purposes sought, may not suitable, nor may function properly in all or any respects;
5. The Customer acknowledges that the Services provided by LevelUp may involve the very task of seeking to customise Goods so they may be fit for particular purposes and that customisation may be a very substantial project in itself;
6. The Customer will accept the sole responsibility for, and indemnify and holds harmless LevelUp in respect of:
  1. decisions as to whether or not to follow recommendations by LevelUp;
  2. decisions as to whether or not to purchase or customise Goods or obtain Services for that or any other purpose; and
  3. any failure or defect in suitability, function or fitness for purpose of any Goods and/or Services,
  and the Customer acknowledges that it is solely responsible for obtaining its own independent advice or a second opinion from a suitably qualified person;
7. Where LevelUp provides Services with a view to achieving the Customer’s purposes, suitability, function or fitness for purpose (whether expressed, agreed or otherwise), the Customer must pay for those Services on time without any set-off or counter-claim, whether or not LevelUp has been or is able to achieve any of such purposes, suitability, function or fitness for purpose, provided always that LevelUp has acted in good faith and has made what LevelUp considers, in its discretion, to be all reasonable endeavours to achieve those outcomes.
Open Source Software: We make extensive use of Open Source Software and components to supply Services including websites, to you. We will not charge you any additional licensing fees that are applicable to Open Source Software.
Software components: All Software and components not developed by us retain the original licence and terms associated with them. We cannot assign such rights to you, and you agree to be bound by the original author’s terms. We take no responsibility for the quality of purchased or leased themes, plugins and other Software that LevelUp assumes is of a professional quality and may use in connection with the Services. If Software is supplied with bugs and defects, we will not be liable for fixing them. All Software, technical solutions and systems are provided “as is” without warranty of any kind, either expressed or implied, including the implied warranties of merchantability and fitness for a particular purpose. We make extensive use of third party solutions and cannot warrant the efficacy of systems that we have no control over.
Visual appearance: You acknowledge that people who may use the Work will use different computers and monitors with different settings and that the visual appearance of any Work, including the image quality, colours, graphics and/or its photography, may vary between computers and monitors. You agree to hold us harmless in relation to variations in the visual appearance of the Work.

12. Payment Arrangements

Any Bond or initial payment required pursuant to any Proposal will be required to be paid on the same day as the date on which the Proposal is accepted by the Client. LevelUp is not obliged to commence providing any Service unless and until such payment has been made by you to LevelUp.
Amounts due by the Customer for ongoing Services will be payable in advance. Such amounts will usually be invoiced to you monthly and if invoiced monthly, will be due and payable on or before the first day of the month or term during which the Services will be provided or within the time specified in the invoice, whichever is earlier.

13. Late Payment and Default

Payment due 14 days: Except in respect of pre-paid Plans, projects, or any other work where payment must be made before the Services are provided, Customers must pay all invoices of LevelUp within fourteen (14) days from the date of the invoice (unless otherwise agreed in writing) by cash, cheque or direct deposit in accordance with these Conditions and in the way set out in the invoice.
14 days late: Where a Customer fails to pay an invoice within fourteen (14) days of the due date, LevelUp may, in its discretion and without prior notice, suspend or discontinue the supply of Goods and/or Services to that Customer and revoke the licence set out in clause 22.b.
Recoveries: All legal and other costs and expenses incurred in connection with the recovery of late payments will be added to the amount due by the Customer to LevelUp and will be recoverable from the Customer, in addition to the original invoice costs plus interest. If the Customer defaults in payment of any invoice on time, moneys which would have become due by the Customer at a later date shall be immediately due and payable without any further notice to the Customer. This includes payments for Services that would have been rendered by LevelUp but for the Customer’s early cancellation of a Proposal. Collectively, all these moneys are referred to in these Conditions as the “Sum Due”.
Interest: If payment of any invoice is not made on time, LevelUp will charge interest daily on the late payment at the rate of ten (10) per centum per annum calculated and charged daily on and from the due date until the overdue amount is paid in full. The Customer accepts this interest to be a reasonable pre-estimate of loss arising from late payment.
Deduction from any Bond: LevelUp may deduct any Sum Due from any Bond provided by the Customer without any prior or other notice to the Customer. LevelUp will not be liable to refund any Bond unless or until the Sum Due is paid in full.
Application of funds: All payments of the Sum Due made by the Customer to LevelUp will be applied as follows:
1. first in or towards payment of any costs (including legal costs), charges, expenses or outgoings paid by LevelUp in relation to and dishonoured cheques fees, collection costs or any other action taken by LevelUp for the recovery of any amounts owing by the Customer to LevelUp;
2. secondly, in or towards payment of any interest due or payable hereunder, and
3. thirdly, in or towards payment of the Customer’s debts to LevelUp in order from the longest standing due to the most recently incurred.
Security: LevelUp may require the Customer to provide security over the Customer’s property (including the Goods or any other property of the Customer) as collateral to be held as security for any Sum Due or as a condition precedent to the continuation of supply of Goods or Services by LevelUp to the Customer.
Repayment arrangements: In the event that a repayment arrangement is made in relation to any Sum Due and the supply of Goods or Services is resumed, but then a repayment due under that arrangement is not made on time, LevelUp may, in its discretion and without prior notice, again suspend or discontinue the supply of Goods or Services to that Customer and may revoke the licence referred to in clause 22.b.
Power of Attorney: The Customer hereby irrevocably appoints LevelUp as its attorney to do anything LevelUp in its discretion considers fit for the recovery of the Sum Due or the creation, perfection or enforcement of any collateral held or to be held as security for any Sum Due.
Other remedies: LevelUp may exercise any of its rights and remedies including taking legal action against the Customer for the recovery of any moneys due to LevelUp, notwithstanding it may have exercised other rights under these Conditions.

14. Product specifications

Alterations to specifications: LevelUp makes every effort to supply the Goods in accordance with the Order, however it may supply alternate Goods subject to minor variations in actual dimensions and specifications where these are changed by the manufacturer of the Goods after the Order date and before delivery.
Substitute Goods: If LevelUp cannot supply the Goods ordered by the Customer, LevelUp may supply alternate Goods of equal or superior quality provided however that the Customer will not pay a higher price than the price Quoted or otherwise agreed for the Goods ordered.

15. Warranties

Reliance on manufacturer’s warranty: The Customer will rely on the warranties provided by the manufacturer of Goods supplied by LevelUp (where applicable) and will deal directly with such manufacturer rather than LevelUp for all claims covered by such warranties.
No claim for manufacturer’s default: The Customer indemnifies and holds harmless LevelUp in respect of the performance or otherwise, by any manufacturer of Goods supplied to the Customer by LevelUp, of any of the obligations of such manufacturer in respect of such Goods. This includes any damages or moneys due to the Customer arising under, or in connection with, any breach by the manufacturer of any of the manufacturer’s warranties in respect of the Goods.

16. Liability

Exclusion: Except as specifically set out herein and so far as may be permitted by law, any term, condition or warranty in respect of the quality, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or Services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.
No liability for program or data loss: Other than due to a wilful default by LevelUp, the Customer indemnifies and holds harmless LevelUp in respect of any allegation, claim, loss or expense of the Customer or any third party for any program or data loss or damage suffered by the Customer or that third party arising directly or indirectly from the supply of the Goods or Services by LevelUp to the Customer. The Customer acknowledges it is solely responsible for backing up its programs and data in order to mitigate its own potential loss of programs and data.
Limit on consequential damage: The Customer indemnifies and holds harmless LevelUp in respect of any allegation or claim as to any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including loss of turnover, profits, business or goodwill or any liability to the Customer or any third party.
Limit on damage from a failure in supply: The Customer indemnifies and holds harmless LevelUp for any allegation or claim for loss or damage by the Customer or a third party where LevelUp has failed to meet any delivery date or cancels or suspends the supply of Goods or Services.
General limit on liability: Except as otherwise expressly stated in these Conditions, LevelUp is not liable for any loss or damage of any kind however caused (including by the negligence of LevelUp) which is suffered or incurred by you in connection with:
1. Goods or Services provided to you or any Work;
2. these Conditions;
3. your use of the website of LevelUp (including the use of a credit card or other debit device) or any linked website;
4. the non-availability of Goods, Services or Software for any reason;
5. any act or omission of LevelUp;
6. the provision of inaccurate, incomplete or incorrect information or Content by you, or
7. for any other reason whatsoever.
Limitation options: To the extent that any legislation implies that a condition or warranty cannot be excluded but can be limited, any clause of any Agreement that purports to exclude such condition or warranty does not apply to that liability and instead the liability of LevelUp for any breach of that condition or warranty is limited to LevelUp doing any one or more of the following (at its election):
1. replacing the Goods or supplying equivalent Goods, Services and/or Work;
2. repairing the Goods and/or the Work;
3. paying the cost of replacing the Goods and/or the Work or acquiring equivalent Goods, Services or Work;
4. paying the cost of having the Goods and/or the Work repaired, or
5. refunding to the Customer any monies paid by the Customer to LevelUp for the Goods and/or the Work.
Laws still apply: Nothing in these Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the supply of the Goods or Services which cannot be excluded, restricted or modified.
Severance: If any provision (or part of a provision) contained in the Conditions is unlawful, invalid or unenforceable, that provision (or the offending part of that provision) may be severed without prejudice to the validity and enforceability of the remaining provisions (or parts of those provisions).

17. Termination

This Agreement may be terminated by you upon sixty (60) days written notice if LevelUp:

fails to fulfil in any material respect LevelUp’s obligations under an Agreement and LevelUp does not take all reasonable steps to cure such failure within thirty (30) days of receipt of written notice from you that specifies such failure;
breaches any material term or condition of an Agreement and fails to take all reasonable steps to remedy such breach within thirty (30) days of receipt of written notice from you that specifies such breach; or
terminates or suspends our business operations, unless we are succeeded by a person who takes over some or all of the business of LevelUp and continues to provide, or offers to continue to provide, similar Services to you.

Where a Proposal has been entered into by LevelUp with a Customer with respect to a specific Period, LevelUp may acquire and retain resources to provide the Services to the Customer for the duration of the Period. In consideration of this and subject to these Conditions, the Customer may not terminate the Proposal before the end of the relevant Period. In the event of such early termination, the Customer automatically forfeits any Bond, which Bond will upon such termination vest in LevelUp for the use of LevelUp absolutely. The Customer agrees that such forfeiture represents a genuine pre-estimate of the loss that LevelUp will incur on account of such early termination.
Subject to this Agreement, in the event that there is no specific Period set out in any Proposal, and you request that LevelUp postpone or cease undertaking the Work, LevelUp will charge the Customer, and the Customer must pay for, all work completed up to and including the date of the Customer’s request, for any time (including administrative time) spent by LevelUp arranging for the winding up of the Work, and for any expenses incurred or to be incurred by LevelUp up until the relevant cancellation date of any Software licence or other service that formed part of, or was ancillary to, the Services.
This Agreement may be terminated by LevelUp upon thirty (30) days written notice to you.
In the event of the termination of this Agreement, the parties will co-operate in relation to the orderly termination and any handover of Services, provided that the Customer must pay all Sums Due and must pay LevelUp for the reasonable costs and expenses of LevelUp associated with such termination and handover. Subject to such payment and agreement between the parties, LevelUp will supply the last backup of, or provide access to, your Software, assets, and data, to you or your nominee and LevelUp will take reasonable steps to assist with the transfer of your domain name(s) to any new domain name registrar that you may nominate in writing. Subject to this clause, upon termination, LevelUp may delete any of your information held by LevelUp on its servers without prior notice to you.
If an additional payment is due under this clause 17 the Customer must pay the amount within fourteen (14) days of LevelUp delivering an invoice to the Customer.

18. Force Majeure

LevelUp will not be liable for any breach of contract due to any matter or thing beyond the control of LevelUp, including failures by third parties to supply goods, services or transport, stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots or civil commotion, intervention or public authority, explosion or accident. If LevelUp is unable to supply any Goods or Services due to circumstances beyond its reasonable control, LevelUp may cancel an Order or Proposal (even if the Order or Proposal has already been accepted) or cease to provide the Services by written notice to the Customer, in which case the Customer will indemnify and hold LevelUp harmless.

19. Errors and Omissions

LevelUp makes every effort to ensure that all prices and descriptions quoted are correct and accurate. In the case of an error or omission, LevelUp may rescind the affected contract by written notice to the Customer, notwithstanding that it has already accepted the Customer’s Order and/or received payment from the Customer. The liability of LevelUp in that event will be limited to the refund of any money the Customer has paid in respect of the Order.

20. Variation of these Conditions

LevelUp may at any time vary these Conditions in its discretion without notice to you, by publishing the varied Conditions on LevelUp’s website.

21. Software

All Software licences are the responsibility of the Customer and not that of LevelUp. It is the duty of the Customer to store all licences for all Software used, so that that they can be reproduced if and when required. This includes all Software installed by LevelUp.
The Customer indemnifies and holds harmless LevelUp against any claim, allegation, loss, damage or expense arising directly or indirectly from:

any unauthorised Software use by the Customer;
any breach of any Software licence in respect of Software provided to LevelUp by the Customer to be installed on a Customer’s computer system;
otherwise as a result of LevelUp installing Software at the request of the Customer where the Customer is not authorised to use the Software; and
any problem, defect or malfunction associated with any Software (or related services) supplied by third parties.

All Copyright in custom Software remains the sole property of LevelUp unless alternate arrangements are made as part of a separate written agreement between you and LevelUp.

22. Copyright and Confidentiality

Warranty and breach: The Customer warrants that any confidential or Copyright information or intellectual property (of any kind and in any form held) or other Content provided by the Customer to LevelUp belongs to the Customer, or the Customer is entitled to use. In the event of any breach of this warranty, the Customer will pay all sums due to LevelUp as If such warranty had not been breached (and regardless of any non-performance of any obligation by LevelUp on account of or in connection with the breach of such warranty). The Customer indemnifies and holds harmless LevelUp in respect of any allegations, claims, loss, costs or expenses in connection with such breach of warranty by the Customer.
LevelUp General IP: The Customer acknowledges that in the course of the Work, LevelUp may permit access to its Copyright and Intellectual property including coding, databases, applications, processes, configurations and business applications that it also provides to other customers for their websites and other applications (“LevelUp General IP”). LevelUp reserves all Copyright and Intellectual Property Rights in LevelUp General IP, For all Work that LevelUp delivers to the Customer, LevelUp grants the Customer a worldwide, unrestricted, royalty-free licence to use the LevelUp General IP contained in the Work for the ordinary functions of the Work, the Customer’s ordinary business purposes and any purpose contemplated by the relevant Proposal, subject to this Agreement. The Customer agrees not to provide any Work containing LevelUp General IP to other providers of Software or website development services or to any person for the purposes of modifying the codes in the Work, provided however that the Customer may provide the Work to third parties for the purposes of hosting or website maintenance.

23. Non Solicitation

The Customer is not permitted to directly or indirectly call on, engage, solicit, or otherwise take-away either for itself or for any other person or entity, any of our employees, agents, customers, affiliates, or suppliers for a period of 12 months from the date of termination of the Customer’s relationship with LevelUp unless otherwise agreed by LevelUp in writing.

24. Privacy Statement and Your Rights

LevelUp is collecting your personal information for the fulfilment of Proposals, the provision of Goods and/or Services or Work to you, and LevelUp may retain and use it for any such purposes (“Authorised Purposes”).
You are required to provide your personal information to LevelUp for Authorised Purposes.
LevelUp may disclose your personal information to other persons for the purposes of the fulfilment of Proposals and Work for you or in order to provide Goods or Services to you including to an AI interface, to verify the information you provide, for enquiries about Goods or Services that may be suitable for your purposes, or to confirm your requirements, to anyone proposing to supply Goods or Services to you, or to acquire Goods or Services on your behalf, or for the purposes of any recovery of any sum due by you but unpaid, or in respect of enquiries relating to any of the foregoing.
Otherwise LevelUp will not disclose your personal information without your consent unless authorised by law.
Your personal information will be held by LevelUp at its Principal Place of Business, and you can contact LevelUp to request to access or correct it.
LevelUp relies on you to submit correct information and details where requested. You accept that you may incur additional expenses if you submit incorrect information.

25. LevelUp Websites

LevelUp makes no representations or warranties in relation to information available on LevelUp websites, including:

that the information on LevelUp websites is complete or correct;
that LevelUp websites will be continuously available or free from any delay in operation or transmission, virus, communications failure, internet access difficulties or malfunction in hardware or Software; and
that LevelUp endorses any internet site linked to LevelUp websites, or any third party products or services referred to on LevelUp websites.

26. Representations

The Customer acknowledges that no employee or agent of LevelUp has any right to make any representation, warranty or promise in relation to the supply of Goods or Services other than subject to and as may be contained in the Conditions.

27. Notices

Any notices given under the Conditions shall be in writing and sent:

by express mail to the last known address of the recipient; and
with a copy sent by e-mail to the last known e-mail address of the recipient.

28. Guarantee and Indemnity

The Guarantor unconditionally and irrevocably guarantees to LevelUp the payment of all moneys and performance of all the obligations of the Customer in connection with this Agreement.
As a separate undertaking, the Guarantor unconditionally and irrevocably indemnifies LevelUp against all liability or loss arising from, and any costs, charges or expenses incurred in connection with, the Customer’s breach of this Agreement; or the Customer’s use of the Services, including a breach of the obligations to pay for those Services. It is not necessary for LevelUp to incur any expense or make any payment before enforcing this right of indemnity.
The Guarantor waives any right it has of first requiring LevelUp to commence proceedings or enforce any other right against the Customer or any other person before claiming under this guarantee and indemnity.
This guarantee and indemnity is a continuing security and is not discharged by any one payment.
The liabilities of the Guarantor under this guarantee and indemnity as a guarantor, indemnifier or principal debtor and the rights of LevelUp under this guarantee and indemnity are not affected by anything which might otherwise affect LevelUp at law or in equity including, but not limited to, one or more of the following:

LevelUp granting time or other indulgence to, compounding or compromising with or releasing the Customer or any other Guarantor;
acquiescence, delay, acts, omissions or mistakes on the part of LevelUp;
any transfer of a right of LevelUp;
the termination, surrender or expiry of, or any variation, assignment, extension or renewal of, this Agreement;
the invalidity or unenforceability of an obligation or liability of any person other than the Guarantor;
this Agreement not being effective as an agreement;
any person named as Guarantor not executing or not effectively executing this guarantee and indemnity.

The Guarantor may not:

raise a set off or counterclaim available to the Guarantor or to the Customer against LevelUp;
claim to be entitled to any right of contribution, indemnity, subrogation or marshalling; or
prove in competition with LevelUp in the insolvency or bankruptcy of the Customer,

If a claim that a payment to LevelUp in connection with this Agreement or this guarantee and indemnity is void or voidable (including, but not limited to, a claim under laws relating to liquidation, administration, insolvency or protection of creditors) is upheld, conceded or compromised then LevelUp is entitled immediately as against the Guarantor to the rights to which it would have been entitled under this guarantee and indemnity if the payment had not occurred.

29. Waiver

The failure of any party to enforce at any time the provisions of this Deed by granting of any time or other indulgence will not be construed as a waiver of that provision or a waiver of the right of that party to enforce that or any other provision.

30. Provisions survive termination

Provisions of this Agreement will survive the termination of this Agreement to the extent necessary to give effect to this Agreement.

31. Electronic Signatures

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures may be made by electronic means, and such electronic signatures shall be legally binding and enforceable in accordance with the Electronic Transactions Act 1999 (Cth). Each party consents to the use of electronic communications and electronic signatures for all purposes related to this Agreement, apart from the requirement to serve documents both by email and express mail.

32. Governing Law

The Agreement of the parties shall be governed by and construed in accordance with the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the Courts of New South Wales.

General Terms and Conditions

General Terms and Conditions

1. Definitions

2. Interpretation

3. Term of the Agreement and Conflicts

4. Quotes

5. Orders

6. Working Together

7. Pricing and Rates

8. Services and Plans

9. Delivery, Title and Risk

10. Returns and Claims for Goods and Services

11. Utility of goods and services, functionality and fitness for purpose

12. Payment Arrangements

13. Late Payment and Default

14. Product specifications

15. Warranties

16. Liability

17. Termination

18. Force Majeure

19. Errors and Omissions

20. Variation of these Conditions

21. Software

22. Copyright and Confidentiality

23. Non Solicitation

24. Privacy Statement and Your Rights

25. LevelUp Websites

26. Representations

27. Notices

28. Guarantee and Indemnity

29. Waiver

30. Provisions survive termination

31. Electronic Signatures

32. Governing Law

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