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The information on this website has been provided in good faith only please speak to a consultant to arrange a consultation to assess your personal situation. K.M.O Design Pty Ltd, herein refered as ("kmo design ") does not make any representation or warranty as to the accuracy of the information. kmo makes no warranty that the products and services within this website, or the information, suggestions or ideas within the site will be suited to or meet your requirements or situation. If you proceed with any services offered on this website kmo design does not provide any warranty or take any liabliy in regards to delivery times of products. At no time is kmo design responsible or liable for any loss occurred due to delay. No guarantee of estimated time and or specific dates given verbally or in writing is absolute and definite. Should unexpected and unavoidable issues arise kmo design holds no legal obligation to ensure application availability.
It is the responsibility of the client to ensure all content is correct. The kmo design website contains links to other sites and kmo design hereby declares explicitly that the content of the linked pages is in no way a representation of us. Therefore, kmo design dissociates itself from all contents of all linked pages of third parties. Although all attempts are made to ensure that information on this site is accurate for time to time products or services may differ and or change and we accept no responsibility for any loss or damage arising from its use.
These are the standard terms and conditions of supply of web hosting and other services offered from time to time on the kmo design website at www.kmodesign.com.au.
Please read these terms and conditions carefully. It is a condition of your use of the Services that you ("Client" or "you") comply with these terms and conditions.
1. Terms and Amendment Procedure1.1 You agree that Kmo design or its third party service provider ("Supplier") will supply the Services to you on the terms set out in this agreement.
1.2 This agreement commences on the date set out in your invoice when your request for Services is accepted by Kmo design.
1.3 We may vary these terms, the amount we charge for any Service, or the terms of the operation of the Service, at any time by general notice on a page of the internet referred to on the home page of our website at http://www.kmo.com.au/. Changes other than price changes will become effective upon publication of the notice.
Where we vary the prices for Services, we will give at least 30 days notice to existing users of those services of the change via email or standard mail, and the new prices will apply at the end of that period.
1.4 If you use a Service after publication of any change in accordance with clause 1.3, your use will constitute acceptance of the amended terms.
1.5 These terms constitute the agreement in its entirety and supersede prior agreements.
2. Services
2.1 We will provide you with Web, Email and Application Hosting Services as per the service level you have requested.
2.2 Maintenance - We must perform maintenance to servers from time to time. We will attempt to perform all maintenance at times which will affect the fewest customers.
2.3 Archiving of Data - We will archive your data onto backup mechanisms on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, we will restore from the last known good archive. In the event of corruption of all of our archives, or in the event that an old archive is used to restore data, you should be prepared to upload your data to your web site.
2.6 You must maintain a recent copy of your data at your premises at all times. We will not be liable for incomplete, out-of-date, corrupt or otherwise deficient client data recovered from our backups.
2.7 In contracting with Kmo design for the Services, you acknowledge that you do not obtain any rights to the hardware and other infrastructure and facilities used by Kmo design or its Supplier to deliver the Services.
2.8 You must comply with all laws regulations, standards and codes applicable to your use of the Services. You must promptly notify Kmo design of any orders or directions issued by a relevant body which may impact on the delivery of Services.
2.9 You agree to grant a non-exclusive royalty-free licence to Kmo design and its Supplier to use, transmit, display, adapt and reproduce the client data in order to fulfil Kmo design's obligation to provide you with the Services as contemplated by this agreement.
3. Payment
3.1 You must pay for the Services in accordance with the prices outlined by Kmo design on your invoice (as amended from time to time in accordance with this agreement).
3.2 Prices are exclusive of any government taxes or charges unless otherwise noted.
3.4 In addition you must provide and pay for:-
a. the installation and use of telephone lines and all other equipment needed to access the Service; and
b. all government taxes, duties and levies (if any) imposed on either you or us in respect of the Services or any other service or goods supplied.
3.5 You must pay all amounts billed in accordance with your billing option. If you choose to pay via monthly Direct Debit your billing date will be on the 18th day of each month.
3.6 You consent to Kmo design or its Supplier obtaining a credit reporting agency report containing personal information about you (as well as information concerning commercial creditworthiness and activities) for the purpose of assessment by Kmo design of an application for credit (whether commercial or personal) or for the purpose of the collection of payments which are overdue.
4. Warranties and Liabilities
4.1 We do not warrant that:-
a. the services provided under this agreement will be uninterrupted or error free;
b. the services will meet your requirements, other than as expressly set out in this agreement; or
c. the Services will be immune from external intruders (hackers), virus or worm attack, denial of service attack, or other persons having unauthorised access to the services or systems of Kmo design or its Supplier.
4.2 Except as expressly provided to the contrary in this agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this agreement, are excluded. Where any statute implies any term into this agreement, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. However, our liability for any breach of the term will, if permitted by that statute, be limited, at our option, to the resupply of the services again; or payment of the cost of having the services supplied again.
4.3 Except as provided under clause 4.2, Kmo design, its subsidiaries, officers, agents, directors, employees, partners or Supplier will not be liable to you or any third party for:-
a. any special, punitive, incidental, indirect or consequential damages of any kind;
b. any damages whatsoever, including, without limitation, those resulting from:
i. loss of use, data or profits, on any theory of liability, arising out of or in connection with the use of or the inability to use the Services;
ii. the statements or actions of any employee or agent of Kmo design or its Supplier;
iii. any unauthorised access to or alteration of your website, transmissions or data;
iv. any information that is sent or received or not sent or received;
v. any failure to store or loss of data, files or other content;
vi. your fraudulent, negligent or otherwise unlawful behaviour;
vii. information, data or other material provided to Kmo design or its Supplier by you or on your behalf, or the use of such information, data or other material by Kmo design or its Supplier;
viii. cost, loss or liability (including loss of profit or other consequential damage) arising from the supply or failure or delay in supplying the Service;
ix. the content, context or confidentiality of any communications made using the Service;
x. loss or damage caused by third party software applications forming part of the Service;
xi. any loss or damage arising out of an unauthorised attack on or other breach of security of the Services or client data; or
xii. any Services that are delayed or interrupted.
4.4 You warrant that:-
a. at the time of entering into this agreement you are not relying on any representation made by Kmo design or its Supplier which has not been stated expressly in this agreement, or on any descriptions or specifications contained in any other document, including any publicity material which we have produced;
b. you will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by you onto or downloaded by you from the Server does not contain any computer virus and will not in any way, corrupt the data or systems of any person;
c. you will keep secure any passwords used to upload data to the Server, or otherwise supplied to you by Kmo design or its Supplier in relation to the Services; and,
d. you hold and will continue to hold the copyright in the client data or that you are licensed and will continue to be licensed to use the client data in the manner contemplated by this agreement, on terms permitting you to sub-licence the client data to Kmo design or its Supplier in accordance with your obligations under this agreement.
4.5 You accept responsibility for all information and material you issue over any Service, and indemnify Kmo design and its Supplier, and hold Kmo design and its Supplier harmless against any liability in relation to such information and material. In particular you undertake that you shall not publish or issue any information which is illegal or defamatory. You also acknowledge that neither Kmo design nor its Supplier vet or approve any information or material available through the Service. Kmo design and its Supplier do not accept any liability for any loss, claim or damages arising from or relating to information and material made available by you through the Services, to the full extent permitted by law. You acknowledge that you make available, access and use such information and material at your own risk.
4.6 You acknowledge that you are solely responsible for dealing with persons who access the client data, and will not refer complaints or inquiries in relation to such data to Kmo design or its Supplier.
5. Suspension and Termination of Services
5.1 Kmo design or its Supplier may from time to time without notice to you suspend the Service or disconnect or deny your access to the Service:-
a. during any technical failure, modification or maintenance involved in the Service provided that we will use reasonable endeavours to procure the resumption of the Services as soon as reasonably practicable; or
b. if you fail to comply with any provision in this agreement (including failure to pay charges due), or do, or allow to be done, anything which in our opinion may have the effect of jeopardising the operation of the Service, until the breach (if capable of remedy) is remedied.
c. Notwithstanding any suspension of any Service under this clause you shall remain liable for all charges due at the commencement of the suspension period throughout the period of suspension.
5.2 Kmo design may without notice to you remove, amend or alter your data upon being made aware of:-
a. any court order, judgment, determination or other finding of a court or other competent body, that the data is illegal, defamatory, offensive or in breach of a third party's rights;
b. if directed to do so by the Australian Broadcasting Authority under a "take down notice", in accordance with the Broadcasting Services Amendment (Online Services) Act 1999, or
c. an outside party or outside device disrupts or attempts to disrupt the Services.
5.3 Kmo design may end its agreement with you and cease providing Services at any time on 30 days written notice to you. You may close your account and terminate any Service with Kmo design on 30 days written notice to Kmo design. Where you terminate any Service with Kmo design under this clause 5.3, Kmo design will not refund you for any payments previously paid to Kmo design in respect of the Service/s being terminated. Where the payment terms for the Service being terminated require monthly payments to be made to Kmo design, you will be liable to pay Kmo design for such Service up to and including the termination date for such Service. This means that you must pay the full monthly fee due for the last month in which the Services were provided to you by Kmo design or its Supplier.
5.4 Where Kmo design supplies a Service to you through a Supplier, Kmo design may terminate and replace such Supplier at any time without notice to you. Kmo design will, however, endeavour to replace such Supplier:
a. with no or minimal disruption to the supply of the Services, and
b. on substantially the same terms as are set out in this agreement.
5.5 Where Kmo design is unable to comply with clause 5.4(b), you may close your account with Kmo design within 30 days of being notified of the new terms on which Kmo design intends to supply the relevant Service/s to you. Where you close your account under this clause 5.5, Kmo design will refund you any fees previously paid by you for Service/s not received from Kmo design as a result of the closure of the account on a pro rata basis.
5.6 If your account is closed under this agreement:
a. you must pay all outstanding charges to Kmo design immediately,
b. any licence issued to or by you in relation to the Services will cease from the date of termination, and
c. Kmo design or its Supplier may delete all client data from any storage media.
6. E-commerce Services
6.1 ("E-commerce Services"), are supplied to you on the following conditions:-
a. Kmo design provides the E-commerce Services software 'as-is' and without warranty of any kind, either express or implied.
b. Kmo design gives no warranty that:-
i. the E-commerce Services will meet your requirements;
ii. the E-commerce Services will be uninterrupted, timely, secure, or error-free;
iii. the results that may be obtained from the use of the E-commerce Services will be effective, accurate or reliable; and
iv. any errors in the E-commerce Services software obtained from or used through Kmo design's site, or any defects in the E-commerce Services, will be corrected.
c. Kmo design and its Supplier will not be liable for acts or omissions of third party e-commerce payment gateway providers such as PayPal, WorldPay, and any other provider who may provide those services as part of the E-commerce Services. You will deal with those providers at your own risk.
d. You accept full responsibility for all online transactions you originate or execute using the E-commerce Services with or without credit and/or debit cards.
e. You are responsible for and indemnify Kmo design and its Supplier in respect of legal obligations you have to end-users of the E-commerce Services under any legislation, including without limitation the Privacy Act (Cth) 1998 as amended.
f. Kmo design accepts no responsibility for any cost, loss or liability (including loss of profit or other consequential damage) that might arise through your use of the E-commerce Services.
g. You indemnify Kmo design, employees, agents, representatives and its Supplier and hold Kmo design and its Supplier harmless against any liability in relation to all transactions undertaken using the E-commerce Services, including in respect of claims by or in respect of services provided by payment gateway providers.
7. Miscellaneous
7.1 You grant to Kmo design and its Supplier a license to use and reproduce all client data in order to fulfil Kmo design's obligations under this agreement. In this agreement "client data" means all information, data, text, logos, images, audio, movie clips and/or content in any form that forms part of the client's websites or emails.
7.2 A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.
7.3 The law in force in Queensland, Australia governs this agreement and the transactions contemplated by this agreement.
7.4 You may not resell Services or assign your rights and obligations under this agreement without the prior written consent of Kmo design.