2. Definitions and Interpretation
Australian Consumer Law means schedule 2 to the Competition and Consumer Act 2010 (Cth).
Business Day means Monday – Friday excluding public holidays in NSW, Australia.
Business Hours means 9:00am – 5:00pm on Business Days.
GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth)).
Intellectual Property Rights means all copyright, trademark rights, patent rights, and design rights, whether registered or unregistered, and all other rights to intellectual property as defined under article 2 of the convention establishing the World Intellectual Property Organization, and all rights to enforce any of the foregoing rights.
Moral Rights has the meaning given in the Copyright Act 1968 (Cth).
Non-Excludable Guarantee means a non-excludable guarantee implied by the Australian Consumer Law.
Personal Information has the meaning given in the Privacy Act 1988 (Cth).
Personal Property Securities Register means the Personal Property Securities Register established under the Personal Property Securities Act 2009 (Cth).
Platform means the MOBLE CMS website platform owned and/or provided by Us, the homepage URL of which is www.moble.com.au and also includes the Platform Services and any content, images, text and other information appearing on any page or screen of the website platform and any source code and object code in the platform, and also refers to any desktop and mobile versions of the website platform and any of Our associated smartphone applications.
Platform Account means Your account on the Platform that is setup when You register on the Platform or subscribe to the Platform Services.
Platform Services means as set out in the Platform Services Description.
Platform Services Description means services proposed in you Proposal Pricing Summary
Registered User means as set out in clause 5.1.
Registered User Data means as set out in clause 7.1.
We, Our and Us means MOBLE PTY LTD, ABN 65 159 739 876, Suite 201, 56 Bowman Street, Pyrmont NSW 2009.
You means you, the person who accesses the Platform for any reason, whether or not You are a Registered User of the Platform.
(c) Currency refers to Australian dollars.
(d) A reference to a statute or regulation includes amendments thereto.
(f) A reference to a subclause or paragraph is a reference to the subclause or paragraph in the clause in which the reference is made.
(g) A reference to time is to time in NSW, Australia.
(h) A reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity.
(i) The words “includes”, “including” and similar expressions are not words of limitation.
You can’t use most of the functionality provided by the platform until you register.
3. Access and use of the Platform by unregistered users
3.1. Unregistered users of the Platform may not use the Platform Services.
4.1. We reserve the right to accept or reject any person’s registration on the Platform in Our absolute discretion.
4.2. If You submit an application to register on the Platform, You:
(a) will be deemed to have irrevocably warranted that during the application process You provided truthful and accurate information only;
(b) will be deemed to have irrevocably warranted that You applied for registered on the Platform on behalf of and with the authority and consent of any business entity that you entered into the Platform Account registration form;
4.3. You must ensure that You provide a valid email address at the time of registration.
4.4. We reserve the right to send an email to You with a hyperlink which requires You to verify that You are the owner or operator of the email address entered by You during registration and to cancel/not approve Your registration on the Platform if Your rights to the email address are not so verified, or where You do not satisfy any of Our other eligibility criteria.
4.5. If any of Your contact details or other information which You provide during the application process change, You must promptly update Your registration details in Your Platform Account with Your up-to-date details and information.
4.6. You must not provide Your Platform Account name or the password for Your Platform Account to any person. You agree and acknowledge that You shall be solely responsible for the confidentiality of Your username and password and any use of Your Platform Account (including unauthorised use).
4.7. You must immediately notify Us if You become aware of any unauthorised use of Your Platform Account.
If you register on Our platform you must pay any applicable fees, including any early termination fees. If you don’t pay us we can terminate your access to our services.
5. Registered User plans and Service Charges
5.1. Only users who have registered on the Platform and have a Platform Account (“Registered Users”) may access the Platform Services.
5.2. You agree and acknowledge that if You become a Registered User You will have a non-exclusive, non-assignable, non-sublicensable, revocable right to access the Platform Services for the purposes expressly described in the Platform Services Description.
5.3. Each Registered User must pay the fees and charges set out in the Platform Services Description (or as otherwise agreed between Us and the Registered User in writing) for the plan selected during signup for a Platform Account, in consideration for the Registered User’s subscription to the Platform Services (“Service Charges”) at the time and in the manner set out in the Platform Services Description, plus any GST that is applicable in respect of the supply of the Platform Services to the Registered User. Any applicable GST is payable at the same time as the Service Charges.
5.4. If the Platform Services Description specifies a minimum term for any subscription plan, then the subscription of a Registered User for the Platform Services is for that minimum term (“Minimum Term”) and, unless otherwise specified in the Platform Services Description, cannot be cancelled or terminated by the Registered User prior to the expiry of the Minimum Term.
5.5. Upon expiry of the Minimum Term, the Registered User’s subscription to the Platform Services shall automatically renew for subsequent successive terms equal to the Minimum Term (each a ‘renewal term’) on the same terms and conditions, unless either We or the Registered User provides at least 30 days written notice prior to the expiry of the Minimum Term or any renewal term, in which case the Registered User’s subscription to the Platform Services shall terminate at the end of the Minimum Term or the then current renewal term, as applicable.
5.7. You must pay all costs associated with accessing the Platform, including internet access costs, web browser and computer and smartphone equipment costs, telecommunications costs, data costs, roaming charges and, if You are a Registered User, Service Charges.
We don’t control the payment gateway used on the platform and we are not responsible for it or its security practices.
6. Payment Gateway
6.1. We utilise a third party payment gateway provided by Pin Payments (Southern Payment Systems Pty Ltd) (“Payment Gateway”) to process payments made to Us via the Platform.
6.2. If You are, or if You become a Registered User, each time You make a payment using the Payment Gateway You will be deemed to have acknowledged, understood and agreed:
(a) that the Payment Gateway may be affected by delays, defects, faults and/or other matters which render the Payment Gateway unusable. These matters may be caused by factors including technical difficulties with the performance or operation of Our or the Payment Gateway’s software or hardware or due to problems or malfunctions with the Internet or other telecommunications networks;
(b) that except in respect of any Non-Excludable Guarantees, We do not warrant, guarantee or represent that unauthorised access to information and data cannot occur, and that We are not responsible for the performance or non-performance of the Payment Gateway;
(c) that You have relied on Your own independent assessment and judgment in determining whether the Payment Gateway meets Your requirements; and
6.3. You indemnify Us in respect of all and any loss or damage We incur as a result of any breach by You of the Payment Gateway Agreement.
You own the data that you upload into Our platform. You have to get permission, where relevant, from the owner of the data before uploading it. We are not responsible if anything happens to that data.
7. Responsibility for and ownership of Registered User Data
7.2. You agree and acknowledge that:
(a) the Platform Services and/or Your Registered User Data may be hosted by Us or Our suppliers on hardware or infrastructure located in or outside Australia; and
(b) We may not own or operate the infrastructure upon which the Platform Services and/or the Registered User Data is hosted.
7.3. If You are a Registered User, You warrant, agree and represent that:
(a) You will only upload, input and transfer Registered User Data into and/or via the Platform Services or disclose Registered User Data to Us, which You are fully entitled and authorised to upload, input, transfer and disclose; and
(b) Your Registered User Data and Our collection, use, storage and/or disclosure thereof in the course of providing the Platform Services, will not breach any applicable law or right of any person.
7.4. If You are a Registered User, You license us on an irrevocable, non-exclusive, royalty-free, worldwide basis to use and publish your Registered User Data on the Platform as required by Us to provide the Platform Services.
7.5. Each Registered User is solely responsible for the accuracy, legality and quality of all its Registered User Data and for obtaining any permissions, licenses, rights and authorisations necessary for Us to use, host, transmit, store and disclose the Registered User Data in connection with the provision of the Platform Services.
7.6. If You are a Registered User, except in respect of any Non-Excludable Guarantee, You agree that You, not Us, are solely responsible for backing up and archiving all Registered User Data.
7.8. Except in respect of any Non-Excludable Guarantee, You agree that We are not responsible for any loss, corruption or hacking of any Registered User Data.
7.9. You indemnify Us in respect of any loss and damage We or any of Our suppliers incur in respect of any claim that any of Your Registered User Data is lost, unavailable or corrupted or the transmission, storage, disclosure, or access to any of Your Registered User Data infringes the Intellectual Property Rights or other rights of any person or breaches any law, regulation, code or standard.
Our platform might go offline from time to time.
8. Availability of Platform Services
8.1. Subject to clauses 2, 8.3 and 8.4, while You are a Registered User of the Platform, We agree to use Our best endeavours to procure hosting of the Platform Services and the Registered User Data and to ensure that the Platform Services are available.
8.3. You agree and acknowledge that the accessibility and use of the Platform, the Platform Services and the Registered User Data hosted by the Platform Services is highly dependent on the proper function of the Internet and any other computer and telecommunications networks and infrastructure upon which the Platform and/or Platform Services and/or Registered User Data operate, interface with or connect to.
8.4. Except in respect of any Non-Excludable Guarantee, We do not guarantee that the Platform, Platform Services or Registered User Data or access thereto will be uninterrupted or error-free and You release and indemnify Us in respect of any loss and damage that We may incur and/or claims and/or complaints You or your customers may have against Us in respect of any interruption, error or unavailability of the Platform, Platform Services or any Registered User Data.
We own the platform and all IP in the platform. You cannot infringe our IP rights.
9. Usage Restrictions
(a) copy, alter, modify, adapt, reproduce, republish, frame, translate, reverse assemble, reverse engineer, reverse compile, transfer, sell, licence, create derivative works from or enhance the Platform and/or any content in the Platform (except any of Your Registered User Data) (except as expressly permitted by the Copyright Act 1968 (Cth));
(b) do any act that would or might invalidate or be inconsistent with Our Intellectual Property Rights or those of Our licensors;
(c) use the Platform in any way that infringes Our rights or the rights of any third party;
(d) use the Platform to create any product or service that competes with the Platform; or
(e) take any steps to circumvent any technological protection measure or security measures in the Platform.
(f) You must not use the Platform or any part of the Platform in any way which is in breach of any statute, regulation, law or legal right of any person.
You cannot use the platform for any illegal purpose or to violate any person’s legal rights.
10. Acceptable Use Policy
10.1. You agree that:
We own the platform and all IP in the platform. We also own all improvement suggestions that you make regarding the platform.
11. Intellectual Property Rights
11.2. As between You and Us, except in respect of Your Registered User Data, We own all Intellectual Property Rights in the Platform.
11.4. You agree that any Intellectual Property Rights in any comments that You may provide to Us in connection with the Platform or requests for new Platform features (each, an “Improvement Suggestion”) becomes Our sole and exclusive property immediately upon You uploading or posting that Improvement Suggestion to the Platform or otherwise providing the Improvement Suggestion to Us, and You hereby assign all Intellectual Property Rights in all and any such Improvement Suggestions to Us effective as soon as You provide each Improvement Suggestion to Us or upload or post an Improvement Suggestion to the Platform, pursuant to section 197 of the Copyright Act 1968 (Cth) and in equity. You consent to the infringement by Us and any third party We authorise, of all Moral Rights that You may have in any Improvement Suggestions.
We cannot be held responsible for the conduct of Our users.
12. Responsibility for other users
12.1. We do not accept responsibility for the conduct of any users of Our Platform.
12.3. We are not a party to any transaction for the supply of goods or services advertised by any user of the Platform. Before entering into any transaction with any other user of the Platform, You should carefully consider the applicable terms and conditions applicable to the transaction, obtain all appropriate advice and take all appropriate precautions.
12.4. Any dispute You have with another user of Our Platform is between You and the other user. You release Us from any claims that You may otherwise have against Us in relation to any conduct of any user of Our Platform and in respect of any content uploaded by or on behalf of any user into the Platform.
12.5. We check content entered into or uploaded into the Platform from time to time, but We do not review or moderate all content. If We become aware of content that breaches our Acceptable Use Policy (see clause 10) We will remove the content and send an email to the person who uploaded or entered it explaining why it was removed. If You become aware of any content that You think breaches the Acceptable Use Policy set out in clause 10 above, please contact Us.
We are not responsible for any claims made by third parties.
13. Responsibility for third party claims
13.1. You agree and acknowledge that You are solely responsible for and You indemnify Us in respect of any loss and damage We may incur in connection with any claims and/or complaints made by any third party where the claim is caused directly or indirectly by:
(a) Your use of the Platform; and/or
(b) Your goods and/or services and/or your advertising and/or sales and/or marketing practices.
We are not responsible for third party sites.
14.1. We do not represent, recommend or endorse any websites to which We have linked from the Platform via hyperlink or otherwise.
Our liability is limited in many ways.
15.1. Except in respect of any Non-Excludable Guarantees, We do not represent that the information on this Platform is accurate, correct, up-to-date or error free.
15.2. The information on the Platform is not professional advice. You agree that You will seek all appropriate financial, legal and other advice as applicable before relying on any information You obtain from the Platform.
15.3. To the extent possible by law, neither party is liable to the other party for any indirect, special or consequential loss or damage incurred by the other party, including liability for loss of profits, loss of business opportunity, loss of savings, or loss of data. It does not include and support or liability for third party systems such as content managements system e.g. MailChimp, Shopify, MYOB, XERO.
15.4. Except in respect of any Non-Excludable Guarantees, to the maximum extent permitted by law (and if permitted by law), We will not have any liability to You for any loss or damage howsoever incurred in relation to Your use of or inability to use the Platform, or with respect to any of the circumstances addressed in clause 1.
15.5. Any goods and services supplied by Us through the Platform (which for the avoidance of doubt, includes the Platform Services supplied by Us, but does not include goods or services supplied by any user or Registered User of the Platform to any person) may come with implied non-excludable guarantees which are regulated by the Australian Consumer Law. The extent of the implied guarantees depends on whether You are a ‘consumer’ of goods or services within the meaning of that term pursuant to the Australian Consumer Law as amended. Where You are a ‘consumer’ for the purposes of the Australian Consumer Law, We are required to provide and shall be deemed to have provided the following mandatory statement to You: “Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”
15.6. If the goods or services supplied by Us to You through the Platform (which for the avoidance of doubt, includes the Platform Services supplied by Us, but does not include goods or services supplied by any user or Registered User of the Platform to any person) are supplied to You in Your capacity as a 'consumer' of goods or services within the meaning of that term in the Australian Consumer Law as amended You will have the benefit of certain non-excludable guarantees in respect of those goods or services and nothing in these terms and conditions excludes or restricts or modifies any guarantee which pursuant to the Competition and Consumer Act 2010 (Cth) is so conferred. However, if the goods or services are subject to a non-excludable guarantee implied by the Australian Consumer Law and the goods or services are not ordinarily acquired for personal, domestic or household use or consumption, then pursuant to s 64A of the Australian Consumer Law, We limit Our liability for breach of any such non-excludable guarantee implied by the Australian Consumer Law (other than a guarantee implied by sections 51, 52 or 53 of the Australian Consumer Law) or expressly given by Us to You, in respect of each of the goods and services, where it is fair and reasonable to do so, at Our option, 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.
15.8. Upon receipt of a valid claim from You under any non-excludable guarantee implied by the Australian Consumer Law, We will contact You to arrange a suitable remedy. You may claim reasonable expenses incurred in making a valid claim under such a guarantee by providing documentary evidence of the expenses to Us. You will be responsible for any expenses incurred in relation to an invalid claim. Where We elect to repair goods the subject of a valid claim, You agree that the goods may be replaced by refurbished goods of the same type rather than being repaired and refurbished parts may be used to repair goods. You acknowledge that where the goods are repaired and are capable of retaining user-generated data, it is possible that the repair of the goods may result in loss of data.
15.9. Any warranty against defects provided by Us to You in Your capacity as a ‘consumer’ under the Australian Consumer Law is in addition to Your other rights and remedies under a law in relation to the goods or services to which the warranty relates.
Notices between you and us are deemed to be delivered at different times, depending on how and when they are sent.
17.1 Any notice issued to You from Us or from Us to You shall be in writing and sent by hand delivery, post or email. Where sent from Us to You, We shall use Your contact details for your Platform Account.
17.2. You may contact Us or send a notice to Us using Our contact details that are specified on Our website at www.moble.com.au/lets-talk.
17.3. Any notice issued by hand shall be deemed delivered upon delivery.
17.4. Any notice issued by post shall be deemed delivered 3 Business Days after posting if posted domestically, or 10 Business Days after posting if posted internationally.
17.5. Any notice issued via email shall be deemed to be delivered upon receipt by the sender of an electronic read receipt or delivery receipt, or upon receipt of confirmation from the recipient that the recipient received the email.
17.6. We may send You email or other electronic messages concerning Your Platform Account and the Platform from time to time.
We reserve our rights.
We are not partners, employers or employee or any other special commercial relationship.
Our liability is only limited to the extent permitted by law.
Any legal action will be commenced close to where we work.
Your Website Design
19. Your Website Design
In purchasing a website package with us you own a copy of the design, style sheet and content of the website (static copy of the HTML, CSS, JS, in it's live form). The design, style sheet and content on your website can be supplied to you if you elect to leave MOBLE. You will be able to host the static website on other hosting platforms.
The Images On Your Websites
20. Website Images
You may use stock images on your website you do not own stock images, ownership is retained by the image rights owner. Stock images can not be used or re-used for any other purpose and can only be used as they were placed onto your website by us. Any editing of the dimensions in which they appear may contravene their usage rights. Do not copy the images and use them in other promotional materials. If you are looking to own the images on your website or use them for another purpose then please contact us and we will endeavour to put you in contact with the image rights owner. This of course, does not apply to images that you own and provide to us for use on your website.
21. Website Content
Websites from MOBLE can not be used to disseminate, communicate, store or transmit:
MOBLE provides email support service on firstname.lastname@example.org Included in your monthly fee:]
The following attracts an hourly support fee of between $100-$175 ex GST in 30 minute increments
Payment of all support tasks or additional work outside of your original package fee will be payable in advance or as soon as the task is completed.
As part of your website build and ongoing hosting MOBLE has the right to include back-links from your website to MOBLE. This is an important marketing avenue for us and is factored into your website cost. If you do not want the back-link on your website we may be able to negotiate a fee for the removal of the links.
24. Promotional Material
MOBLE reserves the right to use client websites, web designs, layouts, prototypes, wireframes and collateral in advertising and / or marketing initiatives. This may include portfolio examples on our website, case studies and other promotional initiatives.
Website Payment Terms
25. Website Package Terms
25.1. Payment is made over three stages, unless otherwise negotiated:*
Stage 1: 50% Deposit in advance
Stage 2: 25% On Design Sign off of Home Page
Stage 3: 25% On supply of HTML coding and CMS access
NB you will be able to use your website at any time to add content and make changes.
* There is the option to pay upfront in advance and receive special pricing.
25.2. Training is not part of your website design and build. Training is part of your ongoing monthly fee. Therefore, the website Stage 3 payment must be made on receipt of CMS access, before the website goes live and before training is provided.
Website Monthly Fee
26. Monthly Fee
We will commence charging your monthly fee upon website approval, or 14 days from going live.
26.2. Monthly Fee Billing Procedure
You will be billed once a month on credit card when using our service. We bill on the first of the month for that month's monthly subscription fee. You will be billed retrospectively for any additional services that you use during a given month.
26.3. You are billed for the month in advance. If you cancel your service, you will not be billed again. However, you will not be eligible for a refund or partial refund for the previous payment, regardless of how much of the current month you have used.
26.4. We do not accept cheques, direct deposits or cash for ongoing monthly payments. However, you may make a direct deposit for the website build payments.
26.5. Data Transfer and Disk Space
(a) Your monthly fee includes up to:
1,000MB disk space 20GB mthly data transfer
(b) If any additional usage if required we will consult with you about a more appropriate capacity.
26.6. Non-payment of Monthly Fee
If the monthly payment for your website becomes overdue by more than 30 days we will put your account on hold until all outstanding fees are collected. We will charge a reinstatement fee of $50 ex GST in additional to all outstanding fees.
26.7. Cancellation of Account and Refund Policy for Monthly Fee
If you are not happy with your website then you can cancel your service immediately. From the time you receive your cancellation confirmation you will no longer be billed by MOBLE. No retrospective cancellation is possible. You are billed monthly, for the month in advance for your monthly subscription. No refunds or partial refunds are available for unused portions of the month. Requests to cancel an account must be in written format. Once we receive your request we will reply with a written confirmation of cancellation.
26.8. Payments Via American Express
All payments made via American Express (Amex) credit cards incur a 3% surcharge.