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1.1 – “Hopping Mad” shall mean Hopping Mad Designs Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Hopping Mad Designs Pty Ltd.
1.2 – “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by the Hopping Mad to the Client.
1.3 – “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 – “Goods” shall mean Goods supplied by the Hopping Mad to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Hopping Mad to the Client.
1.5 – “Services” shall mean all Services supplied by the Hopping Mad to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 – “Price” shall mean the price payable for the Goods as agreed between the Hopping Mad and the Client in accordance with clause 3 of this contract.
2.1- Any instructions received by the Hopping Mad from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by the Hopping Mad shall constitute acceptance of the terms and conditions contained herein.
2.2 – Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 – Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of the Hopping Mad.
2.4 – The Client shall give the Hopping Mad not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by the Hopping Mad as a result of the Client’s failure to comply with this clause.
3. Price And Payment
3.1 – At the Hopping Mad’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by the Hopping Mad to the Client in respect of Goods supplied; or
(b) the Hopping Mad’s quoted Price (subject to clause 3.2) which shall be binding upon the Hopping Mad provided that the Client shall accept the Hopping Mad’s quotation in writing within thirty (30) days.
3.2 – The Hopping Mad reserves the right to change the Price in the event of a variation to the Hopping Mad’s quotation.
3.3 – At the Hopping Mad’s sole discretion a deposit may be required.
3.4 – At the Hopping Mad’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment for approved Clients shall be made by instalments in accordance with the Hopping Mad’s payment schedule.
3.5 – Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
3.6 – Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and the Hopping Mad.
3.7- GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4. Delivery Of Goods
4.1 – At the Hopping Mad’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at the Hopping Mad’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by the Hopping Mad or the Hopping Mad’s nominated carrier).
4.2- At the Hopping Mad’s sole discretion the costs of delivery are:
(a) in addition to the Price; or
(b) for the Client’s account.
4.3 – The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then the Hopping Mad shall be entitled to charge a reasonable fee for redelivery.
4.4 – Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
4.5 – The failure of the Hopping Mad to deliver shall not entitle either party to treat this contract as repudiated.
4.6 – The Hopping Mad shall not be liable for any loss or damage whatever due to failure by the Hopping Mad to deliver the Goods (or any of them) promptly or at all.
5. Content Of Web Pages And Undertakings
5.1 – The Client is solely responsible for the content of the web page. The Hopping Mad is not responsible for proofreading any content unless specifically agreed in writing.
5.2 – The Hopping Mad makes no representations to the Client on the functionality or content of the Web site.
5.3 – The Client is solely responsible for dealings with persons accessing the data or webpage and the Client warrants that they will not refer complaints or inquiries to such data to the Hopping Mad.
6. Web Hosting
6.1- If the Client selects to organise their own web hosting arrangements, final exported sites will be uploaded to your preferred host company or supplied on disc as per the quoted price. Construction files of the site can supplied on request and at the Hopping Mad’s sole discretion may incur a fee.
6.2- The Hopping Mad accepts no responsibility for down times, delays, breakdowns or data loss caused by Internet Service Providers.
7.1- If the Hopping Mad retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
8.1 – The Hopping Mad and Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid the Hopping Mad all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to the Hopping Mad in respect of all contracts between the Hopping Mad and the Client.
8.2 – Receipt by the Hopping Mad of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Hopping Mad’s ownership or rights in respect of the Goods shall continue.
8.3 – It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until the Hopping Mad shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from the Hopping Mad to the Client the Hopping Mad may give notice in writing to the Client to return the Goods or any of them to the Hopping Mad. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) the Hopping Mad shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to the Hopping Mad then the Hopping Mad or the Hopping Mad’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as the Hopping Mad has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for the Hopping Mad; and
(f) the Client shall not deal with the money of the Hopping Mad in any way which may be adverse to the Hopping Mad; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Hopping Mad; and
(h) the Hopping Mad can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that the Hopping Mad will be the owner of the end products.
9. Client’s Disclaimer
9.1- The Client hereby disclaims any right to rescind, or cancel any contract with the Hopping Mad or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by the Hopping Mad and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgement.
10.1- The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Hopping Mad of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Hopping Mad an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Hopping Mad has agreed in writing that the Client is entitled to reject, the Hopping Mad’s liability is limited to either (at the Hopping Mad’s discretion) replacing the Goods or repairing the Goods. Where the Client is a consumer as defined in the Trade Practices Act 1974 or the Fair Trading Acts, then the Client shall be entitled to either a refund, repair or replacement of the Goods.
10.2- Goods will not be accepted for return other than in accordance with 10.1 above.
11. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
11.1- Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
12.1- Subject to the conditions of warranty set out in clause
12.2 the Hopping Mad warrants that if any defect in any workmanship of the web site provided by the Hopping Mad becomes apparent and is reported to the Hopping Mad within one (1) months of the date of delivery (time being of the essence) then the Hopping Mad will either (at the Hopping Mad’s sole discretion) replace or remedy the workmanship.
12.2- The conditions applicable to the warranty given by clause are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(i) failure on the part of the Client to properly maintain (ii) failure on the part of the Client to follow any instructions or guidelines provided by the Hopping Mad; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and the Hopping Mad shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Hopping Mad’s consent.
(c) in respect of all claims the Hopping Mad shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
13. Intellectual Property
13.1 – Where photos are purchased by Hopping Mad from a third party for the use for either print or web it is the responsibility of the client to alert Hopping Mad when the license falls due/expires and they are responsible for renewing this license and all fees associated with this renewal whether past or future. Hopping Mad takes no responsibility for renewal of these images once they have expired.
13.2 – The Client warrants that all designs or instructions to the Hopping Mad will not cause the Hopping Mad to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Hopping Mad against any action taken by a third party against the Hopping Mad in respect of any such infringement.
13.3 – The Client warrants that all designs or instructions to the Hopping Mad will not cause the Hopping Mad to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Hopping Mad against any action taken by a third party against the Hopping Mad in respect of any such infringement.
14. Default & Consequences of Default
14.1 – Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
14.2- If the Client defaults in payment of any invoice when due, the Client shall indemnify the Hopping Mad from and against all costs and disbursements incurred by the Hopping Mad in pursuing the debt including legal costs on a solicitor and own client basis and the Hopping Mad’s collection agency costs.
14.3 – Without prejudice to any other remedies the Hopping Mad may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Hopping Mad may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. The Hopping Mad will not be liable to the Client for any loss or damage the Client suffers because the Hopping Mad has exercised its rights under this clause.
14.4 – If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
14.5 – Without prejudice to the Hopping Mad’s other remedies at law the Hopping Mad shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Hopping Mad shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Hopping Mad becomes overdue, or in the Hopping Mad’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
14.6 – Hopping Mad Designs retains the right to add a link on any website it designs and builds with its wording at Hopping Mad’s discretion with the link back to the Hopping Mad home page.
15. Security And Charge
15.1 – Despite anything to the contrary contained herein or any other rights which the Hopping Mad may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Hopping Mad or the Hopping Mad’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that the Hopping Mad (or the Hopping Mad’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should the Hopping Mad elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Hopping Mad from and against all the Hopping Mad’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Hopping Mad or the Hopping Mad’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause.
16. Suspension Of Services
16.1 – The Hopping Mad reserves the right to suspend services in any case where the Client fails to perform their obligations under this and any associated agreements, including but not limited to the suspension of the Client’s websites.
17.1 – Hopping Mad Designs may discontinue services if an amount payable to Hopping Mad Designs is overdue or take down a website permanently in any case where an amount payable is overdue by more than 7 days. In any such event, you remain liable for the total cost of the contract including all disbursements; unless otherwise agreed between the parties. Furthermore, Hopping Mad Designs will not refund ( in part or in whole) any deposits received for the commencement of work, under any circumstances unless agreed firstly in writing by Hopping Mad Designs. Hopping Mad Designs reserves the right to keep all funds from the deposit if work on a job has commenced and is terminated by either party. Hopping Mad Designs shall not be liable for any loss or damage whatever arising from such cancellation.
17.2 – In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by the Hopping Mad (including, but not limited to, any loss of profits) up to the time of cancellation.
18. Privacy Act 1988
18.1 – The Client and/or the Guarantor/s agree for the Hopping Mad to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by the Hopping Mad.
18.2 – The Client and/or the Guarantor/s agree that the Hopping Mad may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the credit worthiness of Client and/or Guarantor/s.
18.3 – The Client consents to the Hopping Mad being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
18.4 – The Client agrees that personal credit information provided may be used and retained by the Hopping Mad for the following purposes and for other purposes as shall be agreed between the Client and Hopping Mad or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by the Hopping Mad, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
18.5 – The Hopping Mad may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
19.1 – If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 – These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
19.3 – The Hopping Mad shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Hopping Mad of these terms and conditions.
19.4 – In the event of any breach of this contract by the Hopping Mad the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
19.5 – The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by the Hopping Mad.
19.6 – The Hopping Mad may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
19.7 – The Hopping Mad reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Hopping Mad notifies the Client of such change.
19.8 – Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
19.9 – The failure by the Hopping Mad to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Hopping Mad’s right to subsequently enforce that provision.
20. The use of the hopping mad designs for a SEO service is at the Customer’s own risk.
The Customer acknowledges that hopping mad designs makes no warranty that a search engine optimisation will lead to or improve any increase in sales, profits or any other form of improvement for the Customer’s business or any other purpose
To the fullest extent permissible by law, hopping mad designs shall not be liable to the Customer for any damages, including without limitation any direct, indirect, special, punitive, incidental or consequential damages (including but not limited to damages for loss of business profits, business interruption, loss of programs or information, loss of profits or goodwill or loss of use of facilities or equipment), or any other damages arising whether arising from the negligence of hopping mad designs or otherwise
Where liability cannot be legally excluded, the liability of hopping mad designs shall be limited to the cost of supplying the service again
The Customer agrees to indemnify hopping mad designs for any third party claim for damages arising out of or in any way connected with the supply of services by seosydneyhoppingmad.com.au to the Customer, including without limitation any direct, indirect, special, punitive, incidental or consequential damages (including but not limited to damages for loss of business profits, business interruption, loss of programs or information, loss of profits or goodwill or loss of use of facilities or equipment), or any other damages arising whether arising from the negligence of hopping mad designs or otherwise
The Customer expressly agree to indemnify and hold harmless hopping mad designs, its subsidiaries, affiliates, officers, agents and other partners and its and their respective employees from and against all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys fees and disbursements and court costs) arising from or in connection with the Customer’s information, the Customer’s use of hopping mad designs search engine optimisation services.
Hopping Mad Designs does not refund any money received from clients for any past SEO work that they have been asked to carry out. All monies received by hopping mad designs for any SEO work will not be refunded at any stage even if the client cancels the SEO service.