Client Terms

Welcome to Trailhead Studio. By using our Services, or by creating or using an Online Account, you are agreeing to comply with and be bound by the following terms and conditions (“Terms”), which govern our relationship with you in relation to the delivery of our Services and your use of any Online Account provided by Trailhead Studio.

Trailhead Studio is a digital design and development agency offering website development, website hosting, website maintenance, website support, copywriting, proofreading, editing, finished artwork (print & download), search engine optimisation and other digital and non-digital services to Clients.

By using our Services, or by creating or using an Online Account, you accept these Terms are incorporated and form part of our agreement with you. By instructing us to provide you with Services (including by making an appropriate payment), or by creating or using an Online Account, you accept these Terms in your own right and on behalf of any Related Bodies Corporate on whose behalf the Services are purchased or the Online Account is created or used.

In these Terms:

‘AEST’ means Australian Eastern Standard Time.

‘Authorised Personnel’ means managers, employees, independent contractors and other agents of a Client who are authorised by the Client to act on their behalf.

‘Business Hours’ means 8 AM to 8 PM AEST on a Business Day.

‘Business Day’ means any day of the week other than a Saturday, Sunday or national or state public holiday in New South Wales, during Business Hours.

‘Client’ means the person or legal entity who engages our Services.

‘Client’s Material’ means (a) a Design Brief; and (b) existing trade marks; and (c) text, artistic works, graphic material, images, data, type fonts, templates, information and any other material supplied to us by the Client or their Authorised Personnel for the purpose of completing an Order for Services.

‘Client’s Website’ means any website owned by a Client that Trailhead Studio develops, hosts, maintains or otherwise provides Services for, and refers to all parts of that website including, but not limited to, frameworks, content management systems, themes, plugins, component files and databases.

‘Confidential Information’ means all information of a confidential nature concerning the Client and its products or services, or Trailhead Studio, disclosed by one party to the other party and includes any written or oral information disclosed directly or indirectly through any means that is not already in the public domain.

‘Content Services’ means providing any content (e.g. text; pictures; graphics; video) related task for online and offline uses, including, but not limited to, copywriting, proofreading, editing, content population, image management and finished artwork.

‘copyright’ means:

(a) any copyright under the Copyright Act 1968 (Cth); and
(b) any copyright under the law of a country other than Australia; and
(c) rights in the nature of or analogous to the rights in (a) and (b) under the law of Australia or any other country (including future copyright and rights in the nature of or analogous to copyright).

‘Design Brief’ means the Client’s instructions for the completion of any Project, including, but not limited to, the Client’s instructions for the completion of Website Development Services, Website Support Services, Content Services and Print Services.

‘Fee’ means the price for Services as set out on Trailhead Studio’s Website, in Trailhead Studio’s Proposal or quote for Services, or as otherwise agreed between Trailhead Studio and the Client for any Service.

‘Fee Payment Schedule’ means the fee payment schedule as set out on Trailhead Studio’s Website, in Trailhead Studio’s Proposal or quote for Services, or as otherwise agreed between Trailhead Studio and the Client for any Service.

‘Hosting Hardware’ means all computer and networking equipment used by Trailhead Studio in the provision of Hosting Services including, but not limited to, servers and network infrastructure.

‘Hosting Plan’ means the Subscription Plan for Hosting Services.

‘Hosting Software’ means all software used by Trailhead Studio in the provision of Hosting Services, including, but not limited to, servers and network infrastructure software.

‘Hosting Services’ means the collective components of Trailhead Studio’s hosting service which includes, but is not limited to, the provision of internet connectivity, bandwidth, website storage, software, DNS services, email accounts (either included or when selected and paid for as an addon by the Client) and data backups, in combination with the Client’s chosen Hosting Plan and can refer either to those components as a whole or to specific parts as the context may require.

‘Hourly Rate’ means the hourly rate for Trailhead Studio’s Personnel set out on Trailhead Studio’s Website or the hourly rate for Trailhead Studio’s Personnel at the relevant time the work is carried out for the Client.

‘GST’ means the goods and services tax as defined in the A New Tax System (Goods and Services) Act 1999 (Cth).

‘intellectual property rights’ means all rights in relation to copyright, trade secrets, designs, patents, trade marks and service marks, whether registered or unregistered.

‘Maintenance Plan’ means the Subscription Plan for Website Maintenance Services.

‘month’ means a calendar month.

‘Newly Created IP’ means original works protected by copyright that are created by Trailhead Studio for the Client in the course of performing Services for the Client.

‘Online Account’ means any online customer portal where Clients can manage their Services or other matters relating to their relationship with Trailhead Studio.

‘Order for Services’ means the Client’s request for delivery of Services, such as an order for Website Development Services, Hosting Services, Website Maintenance Services, Website Support Services, Content Services and Print Services, which includes orders made on a webform on Trailhead Studio’s Website.

‘Payment Gateway Partner’ means any legal entity that provides us with payment transaction processing functionality.

‘Personnel’ means any director, officer, employee, independent contractor, agent or other representative.

‘Print Services’ means providing any service that assists Clients to procure commercial printing.

‘Project’ means any Service that requires the Client to provide a Design Brief, including, but not limited to, Website Development Services, Website Support Services, Content Services and Print Services.

‘Proposal’ means an outline of how we intend to deliver Services for a Client, including how we intend to deliver the Client’s requirements detailed in the Client’s Design Brief.

‘Related Bodies Corporate’ has the same meaning as defined in the Corporations Act 2001 (Cth).

‘Search Engine Optimisation’ means activities intended to improve the quantity of relevant website traffic to a website or a web page from search engines.

‘SEO Services’ means services intended to improve Search Engine Optimisation.

‘Services’ means any service provided by Trailhead Studio for a Client, including but not limited to, Website Development Services, Hosting Services, Website Maintenance Services, Website Support Services, Content Services and Print Services and any other services that may be supplied by Trailhead Studio from time to time.

‘Service Level’ means the level of performance of the Hosting Services to which Trailhead Studio commits.

‘Stock Media’ means any copyright work or copyright material owned by a third party, including, but not limited to, clip art, photos, images, templates, music, video and audio.

‘Subscription Fee’ means the price for Services set by Trailhead Studio for a Subscription Plan.

‘Subscription Plan’ means any fixed-period plan with a regularly recurring Subscription Fee for the delivery of Services, such as a Hosting Plan, Maintenance Plan and Support Plan, with inclusions described on Trailhead Studio’s Website.

‘Support Plan’ means the Subscription Plan for Website Support Services.

‘Trailhead Studio’ means David Roe, trading as Trailhead Studio (ABN 72 186 331 161).

‘Trailhead Studio Material’ means any material, including but not limited to, templates, text, images, artworks, designs, type fonts, software tools, know-how, methodologies or any copyright works or material existing before Trailhead Studio commences to provide Services in respect to the Client’s Order for Services.

‘Trailhead Studio’s Website’ means https://trailheadstudio.com.au

‘Turnaround Time’ means the time from receipt of a Client’s instruction to proceed with any Order for Services and payment of any Fee required to initiate an Order for Services to the delivery of the completed Order for Services to the Client.

‘Website Development Services’ means designing and building new websites, redesigning existing websites and adding functions and features to websites.

‘Website Maintenance Services’ means maintaining the condition of the Client’s Website by updating the computer programs used to operate the website and any additional maintenance tasks included in the tier of the Maintenance Plan selected by the Client.

‘Website Package’ means any set price website development package that is described on Trailhead Studio’s Website.

‘Website Package Addons’ means any additional functionality described on Trailhead Studio’s Website that can be supplied at an additional cost with a Website Package or added later.

‘Website Security Services’ means activities intended to avoid data loss, data corruption or malfunction of a website due to a security breach by monitoring, protecting, hardening or improving website security.

‘Website Support Services’ means completing support work on the Client’s Website, including repairs, improvements and the addition of functions and features, as well as providing other services, such as SEO Services and Website Security Services.

‘we’, ‘our’ and ‘us’ means Trailhead Studio.

‘you’ and ‘your’, depending on the context used, means any Client, the Client’s Authorised Personnel or any person or legal entity creating or using an Online Account provided by Trailhead Studio.

1. DELIVERY OF AN ORDER FOR SERVICES AND DESIGN BRIEF

1.1. To initiate the supply of Services from Trailhead Studio the Client will complete an Order for Services by contacting us direct or through a webform on Trailhead Studio’s Website. Trailhead Studio will review the Client’s Order for Services and contact the client to discuss Turnaround Time and other relevant matters.

1.2. Clients can provide specific detail relating to their requirements by submitting a Design Brief. Services for which Clients should submit a Design Brief include Website Development Services, Website Support Services, Content Services and Print Services

1.3. When the Client submits a Design Brief, Trailhead Studio will provide the Client with a Proposal outlining how we intend to deliver the Client’s Project.

1.4. When both parties agree with the arrangements outlined in the Client’s Order for Services and (where applicable) the Client’s Design Brief and Trailhead Studio’s Proposal, both parties will agree to proceed in writing. Making the appropriate payment (deposit, initial, full or Subscription Fee) will be taken as the Client’s agreement to proceed, including agreement to be bound by these Terms.

1.5. In the event of any delay in delivery of Services, we will notify the Client to discuss and agree an alternate delivery date.

1.6. The design and content of the Client’s Project will be in substantial conformity with the Design Brief and Order for Services provided to Trailhead Studio by the Client, subject to any variations described in the Proposal or otherwise agreed with the Client.

1.7. The client will supply any Client’s Material required for the Client’s Project unless Content Services have been requested.

1.8. Trailhead Studio will not include, as determined in its sole discretion, any of the following in the Client’s Project: content, including but not limited to, text, photographs, graphics, sound, video, and animations, that might be viewed as obscene or related in any way to any illegal activities; links to other web sites that might be viewed as obscene or related in any way to any illegal activities; invisible text, metatags (i.e. text and code that is readable only to a “Webcrawler” or other web indexing tool) used for illegitimate purposes, or any other type of hidden text, hidden information, hidden graphics, or other hidden materials; or destructive elements or destructive programming of any type.

1.9. Trailhead Studio will provide a first version of the Client’s Project and one reasonable revision at no further cost to the Client. A ‘reasonable revision’ means non-material, minor changes only. Any structural or substantial changes or new material not included in the original Order for Services, Design Brief and Proposal will be charged at Trailhead Studio’s hourly rate at the time of the request.

1.10. Requested revisions must be returned to us within one week of delivery of the first version of the Client’s Project or as otherwise agreed. The Client acknowledges that any late provision of any materials, information or responses that we may request or require may result in a delay to delivery of the Project. The Client acknowledges that we are not responsible for any such delay, for reasons including that we may have blocked our time out for other Client’s work.

1.11. Trailhead Studio will deliver electronic files suitable for the Project’s agreed method of delivery.

1.12. The Client is responsible for the secure storage and backup of all electronic files that Trailhead Studio delivers to the Client. Trailhead Studio has no liability or responsibility for the loss, damage or corruption of electronic files following acceptance of delivery of the final version of a Project.

2. WEBSITE DEVELOPMENT, MAINTENANCE AND SUPPORT SERVICES

2.1. The Website Development Services we provide include:

2.1.1. supplying any Website Package for the price set out on Trailhead Studio’s Website; or

2.1.2. supplying any Website Package with Website Package Addons selected by the Client, with the prices for such addons to be agreed; or

2.1.3. supplying a website to meet the client’s specifications, or redesigning an existing website, with the price to be agreed; or

2.1.4. supplying any Website Package Addons to supplement the Client’s Website, with the prices for such addons to be agreed.

2.2. At Trailhead Studio’s discretion, development, maintenance and support work conducted on a Client’s Website will take place on the Hosting Services in accordance with the Client’s chosen Hosting Plan, or on Trailhead Studio’s server, or on a local hosting environment managed by Trailhead Studio Personnel or on a third party hosting service used by the Client.

2.3. Accessibility of New Websites Under Construction: Throughout the construction of the prototype and the final version, Trailhead Studio will make the Client’s Website accessible to the Client for viewing at our discretion. Until the Client has approved the final version, the Client’s Website will not be publicly accessible

2.4. Accessibility of Live Websites During Development, Maintenance and Support: Trailhead Studio will make every effort to keep the Client’s Website live while conducting Website Development Services, Website Maintenance Services and Website Support Services, however, the Client recognises and accepts that some website downtime may be experienced during such work, including the possibility of downtime for extended periods.

2.5. Upon delivery of the completed website Project and formal approval of the website Project by the Client, Trailhead Studio is released from any further obligations in relation to ongoing maintenance, troubleshooting or updates of the Client’s Website, except where the Client has subscribed to a Maintenance Plan or a Support Plan or made other arrangements with Trailhead Studio as agreed in writing.

2.6. The Client acknowledges that the Client’s Website may break, develop errors, or become unresponsive during the provision of Website Development Services, Website Maintenance Services and Website Support Services. Trailhead Studio will make every effort to avoid such events, however, we reserve the right to charge the Client (both Subscription Plan Clients and Clients having work done to a quote) for remedying any such issues, including (when required) the cost of licensing plugins and other software. Trailhead Studio will notify the Client before completing work where additional fees are required.

2.7. The Client acknowledges that we are not liable for any direct, indirect, consequential or incidental loss or damage which may result from the Client’s Website not being accessible as the result of downtime, including downtime for extended periods, due to our conducting Website Development Services, Website Maintenance Services and Website Support Services on your website. For the sake of clarity, in no event will we be liable for any consequential, indirect, incidental or special damages of any kind including any damages for loss of revenue, profits or interruption of business, or loss or use of data, even if the possibility of such damages, losses and uses was made known to us.

2.8. If the Client or any other person or service supplier other than Trailhead Studio attempts to update or make changes to the Client’s Website, the cost of our time to repair the Client’s Website will be charged at our hourly rates listed on Trailhead Studio’s Website for the supply of Website Support Services.

3. SEARCH ENGINE OPTIMISATION SERVICES, WEBSITE SECURITY SERVICES AND THE USE OF SOFTWARE

3.1. When a Client’s Order for Services includes SEO Services (including for Website Development Services and Website Support Services) we will carry out appropriate Search Engine Optimisation activities on the Client’s Website with the aim of improving its position in search engine results for relevant user search queries, however we cannot guarantee (nor is it possible to guarantee) any particular level of ranking in search engine results or that our SEO Services will improve the Client’s Website’s position in search engine results or improve any other outcome used to measure search engine optimisation.

3.2. The Client acknowledges, understands and accepts that SEO is highly complex, that SEO outcomes are determined by third parties beyond our ability to control (such as the operators of search engines), and that SEO improvements require consistent effort on multiple fronts over a long duration.

3.3. When a Client’s Order for Services includes Website Security Services (including for Hosting Services, Website Maintenance Services and Website Support Services) we will endeavour to protect the Client’s Website from security threats, however, we make no guarantees (nor is it possible to make any guarantees) that our Website Security Services provide absolute security protection for the Client’s Website. The Client acknowledges, understands and accepts that website security threats change rapidly and frequently rendering current protections obsolete, that a reasonable level of website security requires an accumulation of many different security measures, and that websites can be breached using methods and access routes outside of our ability to secure.

3.4. The Client acknowledges, understands and agrees that Trailhead Studio may use its own and/or may purchase third party licenses for products or services that are necessary for Trailhead Studio to design, develop, maintain or provide support for the Client’s Website. Such products and services may include, but are not limited to, server-side applications, “back-end” applications and Stock Media. Any such products and services used to deliver the Services and purchased on behalf of the Client by Trailhead Studio will be reimbursed by the Client.

4. DELIVERY OF SERVICES AND ACCEPTANCE OF SERVICES

4.1. Trailhead Studio will use all reasonable endeavours to complete each Order for Services by the agreed Turnaround Time. In the event of a delay in delivery, Trailhead Studio will contact the Client to discuss and provide an alternate delivery date.

4.2. The Client acknowledges that any late provision of any materials, information or responses required for the completion of an Order for Services, which Trailhead Studio may request or require, may result in a delay in the Turnaround Time, and the Client acknowledges that Trailhead Studio is not responsible for any such delay.

4.3. Trailhead Studio will request final acceptance of a completed Order for Services, and subject to any revisions requested by the Client, an Order for Services is deemed to be accepted after five (5) Business Days of the request for final acceptance or when the Client provides an electronic acceptance of the completed Order for Services.

4.4. The Client agrees that:

4.4.1. They will provide all relevant information required for Trailhead Studio to complete the Order for Services in a timely manner; and

4.4.2. They will supply a complete Design Brief and any material, including research material, that Trailhead Studio may require to carry out the Order for Services; and

4.4.3. They will nominate a person to be available to respond to queries or requests for additional information that Trailhead Studio may require to complete the Order for Services.

4.5. The Client acknowledges and agrees that Trailhead Studio may engage Personnel to perform some or all of the Services on Trailhead Studio’s behalf.

4.6. Trailhead Studio will ensure that any Personnel that we engage to perform Services on our behalf has the relevant qualifications or experience and will comply with Trailhead Studio’s obligations under these Terms, including those obligations in relation to confidentiality.

5. PAYMENT OF FEES AND SUBSCRIPTION FEES

5.1. Unless otherwise specified in writing, any Fees and Subscription Fees are exclusive of GST. If GST applies to Fees or Subscription Fees, this will be payable by the Client in addition to the Fees and Subscription Fees.

5.2. Fees will be payable by the Client on the dates as set out in the Fee Payment Schedule where relevant to a Service.

5.3. If no dates are set out in the Fee Payment Schedule, and unless otherwise agreed in writing, for Projects that cost less than $5,000 the Fees are payable as follows:

5.3.1. 50% payable upon our acceptance of the Order for Services; and

5.3.2. 50% payable upon delivery of the Project.

5.4. If no dates are set out in the Fee Payment Schedule, and unless otherwise agreed in writing, for Projects that cost $5,000 or more the Fees are payable as follows:

5.4.1. 30% payable upon our acceptance of the Order for Services; and

5.4.2. 30% payable at completion of the prototype website or other material that is a deliverable in the Project; and

5.4.3. 40% payable upon delivery of the Project.

5.5. In the event that the Client requests Trailhead Studio to perform any additional work beyond what is set out in the Order for Services, Design Brief and Proposal, such additional work will be charged at the Hourly Rate.

5.6. In the event that the Services are terminated before completion for a reason that is permitted by these Terms, the Client will be liable for any Fees for Services that have actually been provided, calculated on a pro rata basis.

5.7. We may stop work on any Order for Services if we determine that:

5.7.1. the Client has failed to provide us with appropriate instructions, guidance or directions to deliver the Services; or

5.7.2. the Client’s instructions, guidance or directions have resulted in an unreasonable number of changes or edits to the work agreed in the Client’s Order for Services or our Proposal.

5.8. The Client agrees to pay the Fees by the date specified in the Fee Payment Schedule or within seven (7) days of the date of the invoice for the Fees. Any late, overdue or unpaid invoice amounts will incur penalty interest at the interest rate stated in the invoice or otherwise at the annual rate of 10% compounded daily.

5.9. As Trailhead Studio has set aside time for completing the work, and once the Client approves Trailhead Studio to proceed with an Order for Services, all payments are non-refundable (except as otherwise provided under Australian Consumer Law or other relevant laws). Any cancellation of the Services, once confirmed by the Client, will result in a forfeit of any payment. Where there is no payment made in advance, the full Fee or Subscription Fee, as outlined on our website, or in our Proposal or quote, or as otherwise agreed, becomes immediately due and payable.

5.10. In the event that the Client fails to pay any invoices in accordance with the Fee Payment Schedule or these Terms, or does not perform their obligations under these Terms, Trailhead Studio may refuse to continue to provide the Services and may terminate the arrangement immediately without notice. Trailhead Studio may also commence proceedings to collect any outstanding debts owed.

5.11. By providing your payment details you authorise us to deduct the Fees and Subscription Fees from your nominated payment method.

5.12. We do not process any payments on Trailhead Studio’s Website or store Client payment information on Trailhead Studio’s Website. In the event payment facilities are provided via Trailhead Studio’s Website, your payment information is handled by a Payment Gateway Partner, such as PayPal and Stripe, using secure payment technology and the Payment Gateway Partner processes the transaction and sends us the confirmation of payment. For further information about PayPal or Stripe visit their individual websites.

5.13. When you choose auto-renewal, your subscription is automatically renewed for the following month. You do not need to do anything to renew.

6. WARRANTIES

6.1. Trailhead Studio warrants the following:

6.1.1. In providing the Services they will comply with general law and industry standards; and

6.1.2. The work performed to provide the Services will be done to a high standard in accordance with best industry practice.

6.2. The Client warrants that:

6.2.1. The Design Brief and any Client Material delivered to us is original and does not infringe the copyright or other intellectual property rights of any third party; and

6.2.2. The Client owns the Client Material delivered to us or otherwise has the right to provide us with the Client Material for use in the delivery of the Client’s Order for Services.

7. ERRORS AND OMISSIONS IN THE DELIVERY OF PROJECTS

7.1. The Client acknowledges that they are responsible for carrying out the following in a reasonable and timely manner:

7.1.1. Providing Trailhead Studio with Client Material in a form that Trailhead Studio can access, reproduce and incorporate in the Project; and

7.1.2. Proofreading and checking any work-in-progress versions and the final version of a Project delivered by Trailhead Studio to the Client; and

7.1.3. Providing prompt responses, comments and corrections to work-in-progress versions of a Project delivered by Trailhead Studio to the Client.

7.2. The Client agrees to provide Trailhead Studio with a complete and accurate Design Brief and Client Material, and to proof and check for any errors or changes required before giving their final approval of the Project. In addition, the Client agrees Trailhead Studio is not responsible for any errors found after the Client has given their final approval of the Project.

7.3. Trailhead Studio cannot control where and how any Project may be adapted, amended, posted, published or otherwise used by the Client and for this reason the Client agrees Trailhead Studio is not responsible for the use by the Client of any Project after delivery of the Project and approval of the Project by the Client.

7.4. Any Client Material provided by the Client is the responsibility of the Client and the Client indemnifies Trailhead Studio for any direct or indirect claims, including any third party claims, in relation to the infringement of intellectual property rights caused by use of the Client Material in the Project.

7.5. The Client acknowledges that the Client’s Website may break, develop errors, or become unresponsive for a variety of reasons, such as:

7.5.1. The Client fails to renew a licence or subscription for a product or service used by the Client’s Website; or

7.5.2. A relevant content management system, relevant hosting provider or any other relevant platform or provider releases an update or makes a change that is incompatible with the Client’s Website.

8. SUBSCRIPTION PLANS

8.1. Trailhead Studio only provides Website Maintenance Services through a Maintenance Plan. Clients can purchase one-off maintenance services (e.g. a theme or plugin update) by requesting a quote for support by the hour.

8.2. Trailhead Studio will provide Website Hosting Services, Website Maintenance Services or Website Support Services in accordance with the tier of the Hosting Plan, Maintenance Plan or Support Plan selected by the Client.

8.3. A Client may change or cancel Subscription Plans at any time using their Online Account or by contacting us direct. A Client who upgrades to a more inclusive plan will receive the upgraded services and pay the increased Subscription Fee from the date of the upgrade. A Client who downgrades to a less inclusive plan or cancels their plan will continue to receive the current level of service until the expiry of the current billing period at which time the client will receive the reduced level of service and be charged accordingly, or the service will be terminated.

8.4. We retain the right to change Subscription Fees at any time, which revised Subscription Fees will take effect on the renewal of the Client’s subscription to the Hosting Plan, Maintenance Plan or Support Plan. We will send an email to the email account that you have provided to Trailhead Studio letting you know of our intention to change the Subscription Fees.

8.5. Pricing for Hosting Plans, Maintenance Plans and Support Plans can be found here:

Hosting Plans and Maintenance Plans: https://trailheadstudio.com.au/hosting-maintenance/

Support Plans: https://trailheadstudio.com.au/website-support/

9. HOSTING SERVICES

9.1. Trailhead Studio will use its best endeavours to commence provision of Hosting Services as soon as reasonably possible after the Client’s Order for Services has been placed and payment has been received and no later than five (5) Business Days after the Client’s Website has been approved for a hosting plan provided the Client has provided us with all information necessary for us to commence hosting.

9.2. Trailhead Studio is under no obligation to provide any Hosting Services that is not set out in the Client’s Order for Services and the relevant Hosting Plan unless Trailhead Studio and the Client enter into an agreement for the provision of additional services.

9.3. When a Client chooses Trailhead Studio to host their website, we will migrate their website to our server as part of the Hosting Services. When a Client transfers from our Hosting Services to another provider, or if a Client requires assistance migrating their website from one third party host to another, we will carry out those tasks at a price to be agreed.

9.4. Trailhead Studio may, in its sole discretion, alter, improve or otherwise modify the Hosting Services provided that any such change will not significantly alter the provision of the Hosting Services to the Client or result in the removal of any features of the relevant Hosting Plan.

9.5. Trailhead Studio may take any action necessary to alter, improve or otherwise modify the Hosting Services and address or repair faults in Hosting Hardware or Hosting Software without any prior notice to the Client.

9.6. Trailhead Studio will provide the Client with user instruction documentation in respect to any alteration, improvement or modification of the Hosting Services.

9.7. If the implementation of any alteration, improvement or modification of the Hosting Services or remedial action in respect to any faults results in an interruption to the provision of the Hosting Services, the Client will be notified at Trailhead Studio’s earliest convenience via email.

9.8. No alterations or interruptions to the Hosting Services will affect the Subscription Fees payable by the Client for the relevant Hosting Plan.

9.9. The Client acknowledges that we are not liable for any direct, indirect, consequential or incidental loss or damage which may result from your website not being accessible as the result of downtime, including downtime for extended periods, for any reason. For the sake of clarity, in no event will we be liable for any consequential, indirect, incidental or special damages of any kind including any damages for loss of revenue, profits or interruption of business, or loss or use of data, even if the possibility of such damages, losses and uses was made known to us.

9.10. The Client is responsible for managing their emails hosted with their current website host when migrating their website to or from Trailhead Studio’s Hosting Services, unless other arrangements have been made with us.

10. CLIENT WARRANTIES IN RELATION TO HOSTING SERVICES

10.1. The Client may not use the Hosting Services, including any Hosting Hardware and Hosting Software for any unlawful or otherwise inappropriate purposes, including but not limited to:

10.1.1. Distribution of material that infringes any copyright, including, but not limited to, the copyright in computer programs, photographs, artistic works, literary works, sound recordings, films and other audiovisual works; or

10.1.2. Distribution of illegal material and material that is or may be seen to be pornographic, abusive, threatening, malicious, harassing, fraudulent, defamatory or encouraging criminal activities; or

10.1.3. Distribution of viruses, spyware, malware or any other form of code designed to cause harm or nuisance to hardware or software or to obtain data without consent; or

10.1.4. Distribution of unsolicited messages sent in bulk by email to indiscriminate recipients (spam); or

10.1.5. Use of the Client’s Website in any manner that is a violation or infringement of the rights of any person, company or other legal entity.

10.2. All complaints received in relation to any activities described in clause 10.1 will be investigated and may result in immediate suspension or cancellation of service at Trailhead Studio’s sole discretion.

10.3. The Client must monitor and supervise user activity on the Client’s Website to ensure that the operation of the Client’s Website complies with these Terms and any legislation that applies to the operation of the Client’s Website.

10.4. The Client must ensure that any and all activity conducted through the Client’s Website in relation to the collection of personal information complies with the provisions of the Privacy Act 1988 (Cth).

10.5. The Client will use all reasonable endeavours to supply in a timely fashion any information required by Trailhead Studio to facilitate the provision of the Hosting Services.

10.6. To protect the Hosting Hardware, Hosting Software and Trailhead Studio’s other clients, the Client will ensure appropriate maintenance is carried out on the Client’s Website on a regular basis. As a minimum, this should include the regular updating of software used to run and operate the website for any purpose, including, but not limited to, the content management system, theme and plugins.

10.7. The Client is responsible for maintaining regular backups of their emails hosted by Trailhead Studio and for securing their webmail login, including the use of strong passwords and two factor authentication (2FA).

10.8. The Client recognises that available bandwidth is limited, and that Trailhead Studio may limit access to any large amounts of material made available through the Hosting Services in order to maintain a reasonable level of service to Trailhead Studio’s other clients. Trailhead Studio will notify the Client of any such action within 5 Business Days of its implementation.

11. DATA SECURITY FOR HOSTING SERVICES

11.1. Trailhead Studio will endeavour to secure their Hosting Hardware and Hosting Software against security threats, however, we make no guarantees (nor is it possible to make any guarantees) as to the absolute security of our Hosting Services, nor will we be held responsible should a Client’s Website experience a security breach due to a security failure on another Client’s Website hosted by us. The Client recognises and accepts that website hosting cannot be guaranteed 100% safe, that security threats change rapidly and frequently rendering current protections obsolete, and that our Hosting Services can be breached using methods and access routes outside of our ability to secure.

11.2. Trailhead Studio maintain commercially reasonable technical and operational measures designed to protect their internal networks from malicious activity and provide for the security and integrity thereof. The Client acknowledges that Trailhead Studio is not responsible for any loss or harm suffered by the Client resulting from a security incident. The Client is responsible for determining whether the Hosting Services meet applicable regulatory standards and otherwise complies with their own security requirements.

11.3. The Client agrees to configure their use of the Hosting Services and their website in such a way as to maintain the security of the Hosting Services and Trailhead Studio’s network, such as by only using established software from proven providers on their website and frequently updating website software, including the content management system (CMS), theme and plugins, to the latest versions. The Clients also agrees to protect their hosting login and website admin login from malicious security attacks, including by not using easily guessed user login names (e.g. admin), using strong passwords, not sharing passwords, logging out when finished and securing logins including with two factor authentication (2FA).

11.4. Should Trailhead Studio determine that their network has been accessed in an unauthorised manner, and that unauthorised access impacts the Client’s Hosting Services, Trailhead Studio agrees to notify the Client as soon as reasonably practicable after Trailhead Studio has investigated the unauthorised access and fulfilled their legal obligations. Likewise, the Client agrees to notify Trailhead Studio should they identify unauthorised access to the Hosting Services.

12. SERVICE LEVELS FOR HOSTING SERVICES

12.1. Trailhead Studio strives to respond within 24 hours to all Client queries made on a Business Day regarding problems experienced in relation to the Hosting Services. Client queries made within 24 hours of a weekend or public holiday may receive a response on the following Business Day.

12.2. Clients subscribing to our Hosting Services will have their websites hosted on https://www.vultr.com who guarantee uptime greater than 99%.

13. REFUND POLICY

13.1. Clients may terminate any Subscription Plan to receive our Services at any time. We do not offer refunds for Subscription Plan payments except when required under Australian Consumer Law. If you do not want your Subscription Plan to renew automatically, you can disable auto-renew in relation to the payment method used to pay your Subscription Fees, or by contacting us.

13.2. We can suspend or terminate any Subscription Plan at any time at our sole discretion for any reason or if you breach any Terms.

13.3. When a Client terminates any Order for Services to receive our Services, and there are unfinished Projects that we are working on, we may discontinue work on those Projects and retain the work-in-progress material, subject to any agreement between us and the Client as to the payment of our costs for the completion and delivery of such unfinished Projects.

14. CONFIDENTIALITY

14.1. Trailhead Studio will exercise due care not to disclose Confidential Information to any third party without express written permission of the Client and will only use Confidential Information in order to enable the provision of the Services.

14.2. Despite anything contained in this clause, Trailhead Studio may disclose Confidential Information to the extent required by law or a regulatory authority.

14.3. During the term of this arrangement and after its termination, all information concerning fees, payment arrangements, terms and any other information disclosed by Trailhead Studio, will be treated as Confidential Information by the Client.

15. LIMITATION OF LIABILITY AND INDEMNITY

15.1. You agree and acknowledge that we are not liable for any direct, indirect, consequential or incidental loss or damage which may result from your use of the Services or your Online Account, Trailhead Studio’s Website and any content or any information contained on Trailhead Studio’s Website or linked to it. For the sake of clarity, in no event will we be liable for any consequential, indirect, incidental or special damages of any kind including any damages for loss of revenue, profits or interruption of business, or loss or use of data, even if the possibility of such damages, losses and uses was made known to us.

15.2. Subject to your rights under the Australian Consumer Law (ACL), the limitation of liability in clause 15 includes any reliance by you on the information on Trailhead Studio’s Website or your ability or inability to access or use Trailhead Studio’s Website. You assume all risk in using the Services and your Online Account and we cannot be liable for your use of or reliance on the Services or your Online Account. While we endeavour to keep Trailhead Studio’s Website up to date and correct, we make no representation or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the Services provided through Trailhead Studio’s Website for any particular purpose and provide it for your informational purposes and out of our own analysis. Any reliance you place on such information is therefore strictly at your own risk.

15.3. Certain legislation, including the Australian Consumer Law (ACL) in the Consumer and Competition Act 2010 (Cth), may confer you with rights, warranties, guarantees and remedies relating to the provision of Services by us to you which cannot be excluded, restricted or modified (“Statutory Rights”).

15.4. Our liability is governed solely by the ACL and these Terms. We exclude all conditions and warranties implied by custom, law or statute except for your Statutory Rights.

15.5. Except for your Statutory Rights, all products and services are provided to you without warranties of any kind, either express or implied. We expressly disclaim all warranties of any kind including, but not limited to, implied warranties that the products and services are provided with acceptable care and skill or technical knowledge, or will be delivered within a reasonable time when there is no agreed delivery date, or are of a merchantable quality, or will be fit for a particular purpose.

15.6. For the purposes of Schedule 2 of the ACL, in particular Sections 51 to 53, 64 and 64A of Part 3-2, Division 1, Subdivision A of the Competition and Consumer Act 2010 (Cth), our liability is limited to: the supplying of the products or services to you again; the replacement of the products; or the payment of the cost of having the products or services supplied to you again.

15.7. The Client will defend, indemnify and hold Trailhead Studio and our Personnel harmless from and against any and all claims, charges, actions, liabilities, investigations, demands and similar, including, but not limited to, any costs, any direct, indirect or incidental loss or damage or consequential loss, and all legal fees, which may be brought against us or our Personnel (or both) by any third party in respect of any claimed loss or damage arising from: (i) your breach or alleged breach of these Terms; or (ii) unauthorised use of Trailhead Studio’s Website or our Services or your Online Account by you or anyone using your user login name and password; or (iii) any act or thing done by Trailhead Studio and our Personnel on the Client’s instructions or with the Client’s approval; or (iv) the infringement of the intellectual property rights of any person or legal entity due to our use of any Client’s Material provided to us to complete the Client’s Order for Services following the directions or instructions of the Client.

15.8. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.

16. OWNERSHIP OF COPYRIGHT MATERIAL AND TRADE MARKS

16.1. The Client retains the ownership of any Client Material delivered to us, provided that we have the right to copy, reproduce, adapt and use Client Material solely to the extent necessary to complete the Project.

16.2. The Client authorises us to retain archival copies of all Client Material and any completed Project.

16.3. Upon completion of the Project and payment of all Fees by the Client, and subject to the provisions of these Terms, Trailhead Studio assigns the copyright in Newly Created IP in the Project to the Client, provided that:

16.3.1. Trailhead Studio retains all copyright in Trailhead Studio Material; and

16.3.2. Trailhead Studio may retain copies of any Project and copy, publish and communicate to the public the Project for the purpose of marketing and promoting the business of Trailhead Studio, including to reproduce any Project as part of Trailhead Studio’s portfolio of work, such as in brochures and other presentation or promotional material, and to using the Project on social media platforms and the internet to promote the business of Trailhead Studio.

16.4. The Client has sole responsibility for ensuring that trade marked material supplied by the Client for use in any Project do not infringe the rights of third parties, and the Client indemnifies, saves and holds Trailhead Studio and its Personnel harmless against any and all claims, charges, actions, liabilities, investigations, demands and similar, including but not limited to any costs, any direct, indirect or incidental loss or damage, and all legal fees, which may be brought against us or our Personnel (or both) by any third party alleging infringement of their registered or unregistered trade marks or infringement of any other legal rights, or resulting from the Client’s failure to check whether any third party has a claim in respect to the infringement of their intellectual property rights or fails to obtain clearance or permission to use any trade marks claimed by any third party.

17. LICENSING OF FONTS, IMAGES, GRAPHICS AND LOGOS

17.1. If the Client specifies specific type fonts to be used in the Project, or if Trailhead Studio recommends specific type fonts to be used in the Project, it is the responsibility of the Client to licence any copyrighted type font for the reproduction of such copyrighted type font by the Client, or by printers or other reproduction services used by the Client to copy, reproduce, publish or communicate to the public such copyrighted type fonts as part of the Client’s business.

17.2. If the Client specifies any Stock Media to be used in the Project, or Trailhead Studio recommends the use of Stock Media in the Project, Trailhead Studio will ensure the Client will be granted a license of any such Stock Media for use in relation to the Client’s products or services, provided that:

17.2.1. All such Stock Media is supplied by Trailhead Studio to the Client without warranties of any kind, whether express or implied; and

17.2.2 The Client agrees to pay any additional fees for licensing or use of such Stock Media as may be incurred and invoiced by Trailhead Studio.

18. MODIFICATION OF WEBSITE CONTENT AND SERVICES

18.1. We reserve the right at any time and from time to time to remove, delete, alter or amend any Services or the content of Trailhead Studio’s Website. We will not be liable to you or any third party for any modification when it is required.

18.2. Trailhead Studio uses third party vendors and hosting partners to provide the necessary software, hardware, services and storage to provide Trailhead Studio’s Website and Services.

18.3. We make no warranty that Trailhead Studio’s Website or Services will meet your requirements or be available on an uninterrupted, secure or error-free basis. We will use our best endeavours to ensure Trailhead Studio’s Website and Services are always available and virus free but from time-to-time, and in some instances, this may not be the case as it may be out of our immediate control.

18.4. You agree that you will not do any of the following:

18.4.1. up-load, post or transmit any viruses, malware, trojans, worms or any other forms of malicious computer code to Trailhead Studio’s Website; or

18.4.2. use any robot, spider, scraper or other automated means to perform searches on Trailhead Studio’s Website; or

18.4.3. copy, disassemble, decompile or reverse engineer the computer programs and software apps used on Trailhead Studio’s Website.

19. ONLINE ACCOUNTS

19.1. We may provide access to an Online Account for which you will select a user login name and password. If you open an Online Account you agree to use your best endeavours to protect your Online Account and Trailhead Studio’s systems from malicious attack, including by not using easily guessed user login names (e.g. admin), using strong passwords and two factor authentication (2FA), and maintaining the confidentiality of your user login name and password.

19.2. You warrant that all information you provide to us is true and correct. If you find any provided information to be incorrect or to have changed you agree to notify us and update your information immediately.

19.3. By providing your contact details you agree to be contacted by our administrative team.

19.4. Your Online Account user login name and password are specific to you and are non-transferable. You must immediately notify us of any actual or suspected unauthorised use of your user login name and password for your Online Account. You are also recommended to immediately change your password.

19.5. You are solely responsible for all liability and damages resulting from your failure to maintain the confidentiality of your user login name and password for your Online Account, or for using an easily guessed user login name or weak password, or for failing to log out when finished, or for failing to use two factor authentication (2FA) when provided, or for any other reason that results in a third party accessing your Online Account.

20. INTELLECTUAL PROPERTY RIGHTS ON TRAILHEAD STUDIO’S WEBSITE

20.1. All custom graphics, icons, logos and service names used on Trailhead Studio’s Website are our registered trade marks, copyright, trade or service marks.

20.2. All other trade marks or service marks that may appear on Trailhead Studio’s Website are the property of their respective owners.

20.3. Nothing in these Terms grants you any right to use any trade mark, service mark, logo, and/or our name or anything you access through Trailhead Studio’s Website.

20.4. You agree and acknowledge that we retain all right, title and interest in Trailhead Studio’s Website, including but not limited to the intellectual property rights contained or embodied within Trailhead Studio’s Website.

20.5. You are solely responsible for obtaining written permission before re-using any copyrighted material that is available on Trailhead Studio’s Website.

20.6. Any unauthorised use of the material appearing on Trailhead Studio’s Website may violate copyright, trade mark and other applicable laws and could result in criminal or civil penalties.

21. DISPUTES

21.1. If a dispute arises, both parties agree that confidentiality is paramount to the reputation of both parties. At no time will any communications or discussions be made public, including, but not limited to, any social media websites used by either party. Any public discussion or comments about either party are considered defamatory, negative or otherwise damaging and will be the subject of compensation in any mediation or litigation claim.

21.2. In the event of any dispute about the Services or any aspect of these Terms, both parties agree to obtain an independent professional arbitrator/dispute resolution specialist to make a determination on the dispute and each party agrees to pay their own costs.

22. ABANDONING A PROJECT AND TERMINATION

22.1. If after repeated attempts to begin, continue or finalise the delivery of Services the Client fails to participate or becomes otherwise unresponsive to Trailhead Studio requests for instructions for a period of one (1) month, an Order for Services may be considered abandoned, and Trailhead Studio may reduce any refund the Client may otherwise be entitled to hereunder to zero, and the Client will have forfeited all rights to receive any refund of Fees for Services purchased online or as described in the Order for Services, Trailhead Studio Proposal or quote for Services, or as otherwise agreed between Trailhead Studio and the Client.

22.2. The agreement set out in these Terms may be terminated by either party upon written notice to the other party if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice.

22.3. The agreement set out in these Terms may be terminated by Trailhead Studio (i) immediately if the Client fails to pay any Fees or Subscription Fees due in accordance with these Terms; or (ii) if the Client fails to cooperate with Trailhead Studio or hinders Trailhead Studio’s ability to perform the Services hereunder.

22.4. If Trailhead Studio terminates our supply of any Services for a violation of these Terms, Trailhead Studio will not be required to refund any amounts billed for the billing period in which Trailhead Studio terminates any Subscription Plan, or any deposits or payments paid in respect of Projects.

23. COLLECTION OF INFORMATION PRIVACY

23.1. We only collect information required to provide our Services and operate your Online Account. This includes business records of Clients for the purpose of administering our business and maintaining business records and financial accounts in the normal way.

23.2. We reserve the right to disclose your name and any other personal details to any law enforcement authority or other competent authority or to any person for the purpose of legal proceedings or investigation or prosecution of any breach or alleged breach of the law or these Terms.

24. RELATIONSHIP

The relationship under these Terms is that of principal and independent contractor. At no time is Trailhead Studio a partner, agent, employee or joint venture partner of the Client. No act or omission of either party is to bind the other party except as expressly set out in these Terms.

25. FORCE MAJEURE

Neither party to these Terms will be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to, power failure, computer equipment failure, Internet Service Provider failure, epidemic, pandemic, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.

26. SEVERANCE

In the event that one or more of the provisions of these Terms is found to be unlawful, invalid or otherwise unenforceable, that / those provision(s) will be deemed severed from the remainder of these Terms. The remainder of these Terms will be valid and enforceable.

27. CHANGES TO THESE TERMS

We reserve the right to amend these Terms from time to time. You need to ensure you review the Terms from time to time. Amendments will be effective immediately upon publication on Trailhead Studio’s Website. Your continued use of our Services following such publication will represent an agreement by you to be bound by the Terms as amended. If you do not agree with the amendments, then you must stop using the Services. Your continued use of the Services is subject to the current Terms as amended from time to time.

28. GOVERNING LAW

These Terms are governed by the laws of the State of New South Wales which are in force from time to time and both you and we agree to submit to the exclusive jurisdiction of the courts of the State of New South Wales for determining any dispute concerning these Terms.

These Terms were last modified on 07 September 2022 and are effective from that date.