1. Definitions

1.1 “Element Digital” refers to the Provider, whose principal business is offering digital services including but not limited to website design, development, hosting, domain registration, SEO, PPC, social media marketing, content creation, UI/UX services, and no-code application development.
1.2 “Client” refers to any individual or organisation that engages Element Digital to provide Services.
1.3 “Services” means any service provided by Element Digital as described in the Client’s proposal, estimate, or invoice.
1.4 “Agreement” means these Terms and Conditions together with any proposal, estimate, or invoice issued to the Client.

2. Scope of Services

2.1 Element Digital offers various Services, which may be provided on a project basis or under a monthly retainer. Services include, but are not limited to:

• Website Design and Development
• Website Hosting and Domain Registration
• SEO (Search Engine Optimisation)
• PPC (Pay-Per-Click Advertising)
• Social Media Marketing
• Content Creation
• UI & UX Services (including design systems, prototypes, user research)
• No-Code Application Development

2.2 The specific Services provided to the Client shall be outlined in a separate proposal, project brief, or contract.

3. Payment Terms

3.1 Fixed-Fee Projects (e.g., Websites, Design Systems, No-Code Apps)

• A deposit of 50% of the agreed fee is required upfront.
• The remaining 50% is due once the project is deemed complete and, for websites, once the site is live.
• Element Digital reserves the right to withhold project deliverables until final payment is received.

3.2 Retainer Services (e.g., SEO, PPC, Social Media Marketing)

• Monthly fees are invoiced at the beginning of each month of service and must be paid within the specified invoice terms.
• Campaign budgets for third-party platforms (e.g., Google, Meta) are not included in Element Digital’s retainer fee and remain the sole responsibility of the Client.

3.3 Annual Services (e.g., Website Hosting, Domain Registration)

• These Services are billed annually in advance.
• Payment is due by the date stipulated on the invoice.

3.4 Late Payments

• Any invoice not paid within the stated terms may incur an interest charge at a rate permitted by applicable Australian laws.
• Element Digital reserves the right to suspend Services if payment is overdue.

4. Retainer Cancellation and Refunds

4.1 Retainer contracts are provided on a no lock-in basis. However, if the Client terminates the agreement during a current billing period, any fees already paid for that period are non-refundable.
4.2 Written notice must be provided for cancellation of Services. Termination will take effect from the end of the current billing cycle unless otherwise agreed in writing.

5. Project Timelines and Delays

5.1 There are no standard timelines or milestones aside from those agreed in writing.
5.2 If Client delays in providing necessary approvals, materials, or feedback, Element Digital reserves the right to adjust project timelines accordingly. Additional fees may apply if the delays cause significant deviation from the agreed project scope or schedule.

6. Warranty

6.1 No explicit warranty is provided for Services, except as required by Australian Consumer Law.
6.2 Element Digital does not warrant uninterrupted or error-free operation of any deliverable, hosting environment, or third-party platform.

7. Liability

7.1 Limitation of Liability

• Element Digital shall not be liable for any indirect, incidental, special, or consequential damages, loss of profits, or loss of data arising out of or in connection with the provision of Services.
• The Client agrees that Element Digital’s total aggregate liability shall not exceed the fees paid by the Client for the specific Service in question.

7.2 Third-Party Tools and Contractors

• Element Digital may engage third-party tools, platforms, and subcontractors to deliver certain components of the Services.
• Element Digital shall not be held liable for any actions, errors, or omissions of these third parties.
• The Client may be subject to additional terms and conditions imposed by such third-party services.

8. Intellectual Property

8.1 Ownership

• For non-retainer (fixed-fee) services (e.g., website development, design systems, no-code apps), Element Digital retains ownership of the deliverables until all payments have been received.
• Upon full payment, ownership of the final work product transfers to the Client, unless otherwise stated in writing.

8.2 Third-Party Content

• Any usage of open-source or third-party materials shall be governed by the respective licensing terms. Element Digital shall not be liable for any breach of such licences by the Client.

9. Confidentiality and Data Protection

9.1 Confidential Information

• Both parties agree to maintain the confidentiality of any information clearly designated as confidential and disclosed during the engagement.
• Element Digital will use commercially reasonable efforts to protect any confidential Client information.

9.2 Data Protection

• Element Digital will comply with relevant Australian data protection and privacy regulations when handling personal data on behalf of the Client.
• The Client bears responsibility for obtaining and maintaining all necessary consents and permissions required to provide personal data to Element Digital for processing.

10. Termination

10.1 Either party may terminate the Agreement if the other party commits a material breach and fails to remedy said breach within a reasonable period after receiving notice.
10.2 Upon termination, any fees or charges due to Element Digital shall be paid immediately by the Client.

11. Dispute Resolution

11.1 In the event of a dispute arising from or in connection with these Terms or the provision of Services, both parties shall first seek to resolve the dispute through mediation or arbitration in accordance with Australian regulations and procedures.
11.2 If the dispute cannot be settled through mediation or arbitration, it shall be subject to the exclusive jurisdiction of the courts of Australia.

12. Governing Law

12.1 These Terms and Conditions are governed by and construed in accordance with the laws of Australia. Any legal action or proceedings relating to or arising from these Terms shall be brought under the jurisdiction of the Australian courts.

13. Entire Agreement

13.1 These Terms and Conditions, together with any proposal, estimate, invoice, or contract, constitute the entire agreement between the parties. Any modifications or amendments must be in writing and agreed by both parties.

14. Severability

14.1 If any provision of these Terms is deemed invalid or unenforceable, the remaining provisions shall continue in full force and effect.

15. Notices

15.1 Any notice required under these Terms shall be in writing and sent to the registered address or principal place of business of the other party, or by email if so agreed by both parties.

Last Updated: 7 April 2024