Dalligator is a product/service of Creative Generals Pty Ltd. For more information please visit creativegenerals.com.au.

1. Terms of Use Definitions

These Terms of Use (including the ‘Software Agreement’) apply to anyone who visits the Dalligator website or uses any of our products or services. Your use of our website, products or services constitutes your acceptance of these Terms of Use. In these Terms of Use and generally on the Dalligator website.

“we”, “our” or “us” means Creative Generals Pty Ltd (Australia);

“you” means you, the person using our Services;

“Intellectual Property Rights” includes without limitation any copyright, patents, trade marks, design rights or database rights, whether registrable or not, and whether registered or not, and also includes any other proprietary rights, trade secrets or rights of publicity, privacy or confidentiality;

“Licence” means the permission we give to you to use our Software products and which is given under the terms of the relevant Software Agreement;

“Services” means all products, goods or services we provide to you including our Website;

“Software” means the software we provide to you as part of our products and means for example the Dalligator software;

“Software Agreement” means the relevant licence agreement under which any of our Software products are purchased and comprises the terms and conditions contained in these Terms of Use which are expressly or by implication intended to apply to the licence of the Software;

“Website” means the Dalligator website;

“User” means a person setup to use the Services and is a person who can have all available or limited privileges in using the Software. It is possible to create a User who will never access the system, the functions of such a user will be performed by a user with a higher degree of security privileges.

Any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or bylaw made under that enactment.

The headings to the clauses of these Terms of Use are for convenience only and do not affect its interpretation.

In addition to these ‘Terms of Use’ other contractual terms may apply to some Services. It is important that you are familiar with all of the terms applying to your use of our Services.

Licence

We distribute all of our Software under ‘commercial’ licences. The User may operate the Software by logging in under the User’s account only once at any given time and on only one server at a time (a ‘per user’ licence). Each licence is non-exclusive, non-transferable, temporary (for the period specified) and revocable.

Transferring Licences / Upgrades

Licences cannot be transferred to other parties. This applies to both general software and upgrades. Upgrade packages are applicable only to the company who purchased the original software.  Any upgrades are supplied subject to the same terms and conditions as the original software.

Distribution

We house all software on our owned/rented servers. Unauthorized distribution without prior consent is strictly prohibited.

Warranty/Refunds

These Terms of Use replace any previous Terms of Use. We accept no responsibility for problems arising from the use or abuse of any of our Services. No refunds will be made in any circumstances.   Our Services are provided on an ‘as is’ basis.  Any warranties whether express or implied including but not limited to warranties as to ownership, merchantability and fitness for purpose are hereby excluded to the maximum extent permissible by law.  In no event shall we be liable for any direct, indirect, incidental, special, exemplary or consequential damages, (including but not limited to procurement of substitute goods or services, loss of use, data, revenue, profits, contracts, business, anticipated savings, business interruption, loss of goodwill or reputation) however arising, including negligence, relating to these Terms of Use or the use of our Services.

In the event that we are held liable to you, our maximum total liability will be the total amount of the licence fee paid by you to us in the continuous 1 month period immediately prior to the bringing of such claim or $50 whichever is the greater.

Indemnity

You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, officers, directors, agents, and employees, harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your use of our Services or your breach of these Terms of Use, any applicable law or the rights of a third party.

Password and Security

You must maintain the confidentiality of any passwords in respect of your account and are fully responsible for all activities that occur under your password or account. You agree to notify us immediately of any disclosure or unauthorized use of your password or account or any other breach of security and to ensure that you exit from your account at the end of each session.

Ownership

You acknowledge that we or our suppliers own any Intellectual Property Rights which subsist in any aspect of our Website, products, goods or services.

Restrictions on Use of Software

You may not copy, publish, de-compile, or reverse engineer the Software or use the Software other than either (a) as is strictly necessary to facilitate the provision of the Services to you or (b) in accordance with any statutory rights you may have to do so.

Accuracy of Information, etc.

Your activities on our Website and any information provided by you to us including but not limited to any information provided in your registration details must not:

• be false or misleading and you agree to keep us updated with any changes to that information;
• be offensive, defamatory, indecent or in breach of any applicable laws or regulations;
• infringe any third party’s rights including but not limited to any third party Intellectual Property Rights;
• create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers;
• contain any computer viruses, macro viruses, trojan horses, worms or anything else designed to interfere with, interrupt or disrupt the normal operating procedures of a computer or to surreptitiously intercept, access without authority or expropriate any system, data or personal information;
• cause the Website or any other Services to be impaired, interrupted, damaged or rendered less efficient or less effective.

Privacy:

We respect your privacy, the privacy of your data and the privacy of all users and visitors. All information and data entered by you into the system is treated as confidential. We will not sell, rent, lease, or give away your data, our user list, email addresses or any other personal information unless required by law to do so.  We will not contact you unless you opt-in to a user email list or have requested to be notified of bug-fixes or new features.

We may, from time to time, gather specific data from user browsers as they enter and exit the site. This information is standard, and contains data such as referring URL, pages viewed, and amount of time spent on the site. This data is used for internal calculations of traffic, platform, and download counts.

Any information collected may be used to investigate any possible breach of these Terms of Use or illegality.

We will endeavour to keep your information safe and secure. Unfortunately, due to the very nature and environment of the internet, we cannot ensure that all communications and personally identifiable information will never be disclosed.

Termination

Your Licence will terminate automatically on the expiry of the period for the applicable licence fee or in the case of failure to pay any required licence fee. We may terminate your Licence immediately and without notice in the event of any breach of these Terms of Use by you or on the occurrence of any external event requiring us to cease provision of the Services. Those clauses which are either expressly or by implication intended to survive termination shall survive termination including without limitation those clauses headed Indemnity, Ownership, Severance, Proper Law and Jurisdiction, Set-Off and Waiver.  Termination shall not affect any rights which have accrued prior to termination.

Notices

Any notice required to be given by us to you shall be sent to the e-mail address provided by you in your registration details or as updated by you from time to time in accordance with proper use of our Website.  Any such notice shall be deemed (a) to be notice in writing and (b) to have been received 24 hours after being sent.  Any notice required to be given by you to us under this Agreement shall be sent to the postal address provided under our contact details on our Website and as updated from time to time.

Force Majeure

We shall not be liable for any delay or failure in performing these Terms of Use which results from circumstances outside our reasonable control.

Third Parties

These Terms of Use are intended to confer a benefit on our proper assigns and successors but are not intended to confer any rights on any other third parties whether pursuant to the Contracts (Privity) Act 1982 or otherwise.

Severance

Any term or condition of these Terms of Use which is found to be unlawful, void or unenforceable shall to the extent required be severed and be rendered ineffective as far as possible without modifying the remaining terms and conditions.

Proper Law and Jurisdiction

If the information or Data You are accessing using the Services is solely that of a person who is a tax resident in New Zealand, then New Zealand law governs this Agreement and You submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this Agreement. If the information or Data You are accessing using the Services is solely that of a person who is a tax resident in Australia, then Australian law governs this Agreement and You submit to the exclusive jurisdiction of the courts of Australia for all disputes arising out of or in connection with this Agreement. In all other situations this Agreement is governed by the laws of New Zealand and You hereby submit to the exclusive jurisdiction of the courts of New Zealand for all disputes arising out of or in connection with this Agreement.

Set-Off

Where you have incurred any liability to us, whether under these Terms of Use or otherwise, we reserve the right to set-off the amount of such liability against any sum that would otherwise be due to you in relation to these Terms of Use.

Waiver

Any delay or failure by us in enforcing any right under these Terms of Use is not a waiver of that right and will not prevent that right or any other right or remedy from being exercised or enforced.

These Terms of Use were last updated at the close of business on 2 February 2018 to remove references to the New Zealand Stock Exchange (NZX) following our delisting from the NZX. On 5 February 2018 we will have a sole listing on the ASX. This change will be effective immediately.

2. LET’S AGREE

These terms and conditions govern any services we provide to you, and any content or information, text, graphics, photos or other materials uploaded, downloaded or appearing on or in relation to those services. By accepting our services, you are agreeing that these terms constitute a legal agreement between you and us.

To ensure it’s clear who we are, in these terms “we or our” means Creative Generals Pty Ltd.

3. DESIGN

We create designs that adapt to the capabilities of many devices and screen sizes. We create them iteratively and use predominantly HTML and CSS so we won’t waste time mocking up every template as a static visual. We may use visuals to indicate a creative direction (colour, texture and typography.) We call that ‘atmosphere.’

You’ll have plenty of opportunities to review our work and provide feedback. We’ll either share a Dropbox, Google Drive folder or Github repository or development site with you and we’ll have regular, possibly daily contact by either phone, Skype, or Slack.

If—at any stage—you change your mind about what you want delivered or aren’t happy with the direction our work is taking, you’ll pay us in full for the time we’ve spent working until that point and may terminate this contract. Please also note that any initial deposits are non-refundable.

4. CONTENT

4.1 text content

Unless agreed separately, we’re not responsible for inputting text or images into your content management system or creating every page on your website. We provide professional copywriting and editing services, so if you’d like us to create new content or input content for you, we’ll provide a separate estimate.

4.2 graphics and photographs

You should supply graphic files in an editable, vector digital format. You should supply photographs in a high resolution digital format. If you choose to buy stock photographs, we can suggest stock libraries. If you’d like us to search for photographs for you, we can provide a separate estimate.

5. COMPLIANCE

5.1 browser testing

Browser testing no longer means attempting to make a website look the same in browsers of different capabilities or on devices with different size screens. It does mean ensuring that a person’s experience of a design should be appropriate to the capabilities of a browser or device.

We test our work in current versions of major desktop browsers including those made by Apple (Safari), Google (Chrome), Microsoft (Edge), Mozilla Firefox and Opera. We won’t test in other older browsers unless we agree so separately. If you need an enhanced design for an older browser, we can provide a separate estimate for that.

5.2 mobile browser testing

Testing using popular smaller screen devices is essential in ensuring that a person’s experience of a design is appropriate to the capabilities of the device they’re using. We test our designs in:

• iOS: Safari and Google Chrome
• Android: Google Chrome

We won’t test in Opera Mini/Mobile, specific Android devices, or other mobile browsers unless we agree so separately. If you need us to test using these, we can provide a separate estimate for that.

5.3 compliance with ecommerce, accessibility or other regulations

You are required to ensure that the website and its content comply with current online trading laws and regulations, in the countries applicable to your business/market.

5.4 compliance with laws and regulations

You may use our services only as permitted by law. We are not responsible for any failure to comply with laws and regulations related to accessibility, selling online or those specific to business or trade. We suggest you seek independent legal advice. We also have the right to stop providing services to you if you don’t comply with these terms or any application law.

6. MALICIOUS ATTACKS

Although we take website security very seriously, from time to time a website may be victim to a malicious attack. These are out of our hands and if we are required to fix issues created by malicious attacks after completion, additional costs may apply.

7. TECHNICAL SUPPORT

You may already have professional hosting and you might even manage that hosting in-house; if you do, great. If you don’t, we will recommend one of our preferred hosting providers. We can set up your site on a server, plus any statistics software such as Google Analytics and will provide a separate estimate for that. Then, the updates to, and management of that server will be up to you.

8. SEARCH ENGINE OPTIMISATION (SEO)

We don’t guarantee improvements to your website’s search engine ranking, but the pages that we develop are accessible to search engines, and we build our websites so that they are well positioned to rank in search engines. If you need dedicated SEO solutions or Adwords plans, we can provide a separate estimate for that.

9. CHANGES, REVISION, CANCELLATION

9.1 changes and revisions

We don’t want to limit your ability to change your mind. The prices we agree at the commencement of a project are based on the number of hours/weeks that we estimate we’ll need to accomplish everything you’ve told us you want to achieve. We are happy to revise concepts for you, but please be aware that these revisions are limited. Unless otherwise stated, it’s a max of 3 revisions of your preferred design. If out of scope work is required, it will have to be charged separately. But we will always let you know before any additional fees are incurred.

9.2 cancellation by client

If the project is cancelled by the client, all costs towards work completed to date are to be paid by ‘The Client’. The minimum cancellation fee will be 50% of the original quote.

9.3 cancellation by us

We reserve the right to immediately terminate our contract with you when:

• The initial scope of work has been increased by more than 10% and you are refusing extra charges.
• You are too slow to respond. We deem slow to respond as more than 30 days waiting for content, a brief, a revision, payment, final sign off or general delays resulting in a halt in our production.
• We deem the work unethical or against our normal operating processes and procedures.
• You do not pay us within our payment terms, or you become insolvent.

10. QUOTATION

What you see in the quote from us is what you will get. If you need to add anything, we are always happy to review the scope of work for you. Please note that once you have agreed to the quote we will need to stick to it as much as possible. We are flexible to enable changes from the initial scope, but please keep in mind this will more than likely affect the time required for production and, possibly, the fees payable.

11. PROJECT DELIVERY

The project schedule and timeline we provide is an estimate, but we are very passionate about not exceeding these. Our work involves different parties, it’s a teamwork, and sometimes it can be delayed. We request that you keep our pace, slow decision making or feedback can really delay our production and ultimately the completion of the project.

12. DISCLAIMER AND EXCLUSION OF LIABILITY

We’ll carry out our work in accordance with good industry practice and at the standard expected from a suitably qualified person with relevant experience. That said, we can’t guarantee that our work will be error-free and so, to the extent permitted by law, we can’t be liable to you or any third-party for damages, including lost profits, lost savings, loss of data or other incidental, consequential or special damages, even if you’ve advised us of them. This, however, doesn’t apply to protecting you from any intellectual property rights claims made against you relating to our inputs (which we will fully indemnify you for).

Some jurisdictions provide for certain warranties and guarantees, such as the implied warranties of merchantability and fitness for a particular purpose. To the extent permitted by law, unless otherwise provided in these terms, we exclude all such warranties and guarantees. Where liability cannot be excluded, our total liability for any claims under these terms, including for any implied warranties and guarantees, is limited to, at our option, the resupply of the services or (where applicable) repair or replacement or payment of the cost of having the services resupplied, repaired or replaced, or otherwise to the extent provided for by relevant law.

Other than protecting us from any intellectual property rights claims made against us relating to your inputs (which you need to fully indemnify us for), your liability to us will also be limited to the amount of fees payable under this contract and you won’t be liable to us or any third-party for damages, including lost profits, lost savings, loss of data or other incidental, consequential or special damages, even if we’ve advised you of them.

Finally, if any provision of this contract shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this contract and shall not affect the validity and enforceability of any remaining provisions.

13. INTELLECTUAL PROPERTY RIGHTS

Just to be clear, “Intellectual property rights” means all patents, rights to inventions, copyright (including rights in software) and related rights, trademarks, service marks, get up and trade names, internet domain names, rights to goodwill or to sue for passing off, rights in designs, database rights, rights in confidential information (including know-how) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or shall subsist now or in the future in any part of the world.

First, you guarantee that all elements of text, images or other artwork you provide are either owned by your good selves, or that you’ve got permission to use them. When you provide text, images or other artwork to us, you agree to fully protect us from any claim by a third party that we’re using their intellectual property by indemnifying us against any claims made by a third party.

We guarantee that all elements of the work we deliver to you are either owned by us or we’ve obtained permission to provide them to you. When we provide text, images or other artwork to you, we agree to fully protect you from any claim by a third party that you’re using their intellectual property by indemnifying you against any claims made by a third party. Provided you’ve paid for the work and that this contract hasn’t been terminated, we’ll assign all intellectual property rights to you as follows:

• You’ll own the website/artwork we design for you plus the visual elements that we create for it. At your request, we are happy to supply you with finished files (this means the final file(s) as it was published).
• You own all intellectual property rights of text, images, site specification and data you provided, unless someone else owns them.
• Artwork/Source files may be supplied on request unless subject to third party licensing agreements. We are happy to provide editable file formats on request (ai, eps, psd or indd). We reserve the right to charge an additional fee to cover the time it takes us to retrieve and prepare the files for delivery.
• You give us permission (a licence) to display any of our work that we assign to you as per paragraph 13 below.
• We’ll continue to own any intellectual property rights we’ve developed prior to, or developed separately from this project and not paid for by you. We’ll own the unique combination of these elements that constitutes a complete design and we’ll license its use to you, exclusively and in perpetuity for this project only, unless we agree otherwise.

Quotations and costs are confidential, we request that don’t share these with any other entities, unless we give you permission to.

14. DISPLAYING OUR WORK

We love to show off our work, so we reserve the right to display all aspects of our creative work, including sketches, work-in-progress designs and the completed project on our portfolio and in articles on websites, in magazine articles and in books.

15. PAYMENT SCHEDULE

We’re sure you understand how important it is as a small business that you pay the invoices that we send you promptly.

We issue invoices electronically. Our payment terms are 14 days from the date of invoice.

If you aren’t from Australia, please note that all proposals are quoted in AUD and payments will be made at the equivalent conversion rate at the date the transfer is made. You agree to pay all charges associated with international transfers of funds.

The appropriate bank account details will be printed on our electronic invoice. We reserve the right to charge interest on all overdue debts at the rate of 5% per month or part of a month.

16. BUT WHERE’S ALL THE HORRIBLE SMALL PRINT?

Just like a parking ticket, neither of us can transfer this contract to anyone else without the other’s permission.

We both agree that we’ll adhere to all relevant laws and regulations in relation to our activities under this contract and not cause the other to breach any relevant laws or regulations.

Although the language is simple, the intentions are serious and this contract is a legal document under exclusive jurisdiction of Victorian courts.