terms and conditions

The following Terms and Conditions govern the subscription services which are provided by D&A Galanis Pty Ltd (ACN 669 627 703) trading as pdwise (“pdwise”). These Terms as well as the accompanying Proposal constitute an agreement between pdwise and the Client.

Definitions

1. In these Terms, unless the subject matter or context otherwise requires:

Account means the sub-account provided to the Client by pdwise to access the Platform.

Client means the client described in the Proposal.

Client Content means all documents, files, records, images, recordings, instructions, specifications, codes, requirements, samples, measurements and other information and materials provided by the Client to pdwise in relation to the performance of the Services.

Client Data means the information or data inputted by or on behalf of the Client into the Platform but does not include any data or information that is created by pdwise, generated as a result of the Client’s usage of the Platform or that is a back-end or internal output or an output otherwise generally not available to users of the Platform.    

GST has the meaning given to that term in the GST Law.

GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Intellectual Property means any and all items in which Intellectual Property Rights subsist, existing now or in the future and whether or not registered or registrable.

Intellectual Property Rights means all current and future registered and unregistered rights and all renewals and extension of those rights in respect of copyright, marks, trade secrets, know-how, confidential information, patents, inventions and discoveries and all other intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation 1967.

Platform means the digital marketing platform known as “GoHighLevel” operated by the Platform Provider.

Platform Provider means HighLevel Inc, its affiliates, subsidiaries, successors, and assigns.

Platform Terms means all terms governing the use of the Platform as published by the Platform Provider and updated from time-to-time.

pdwise Content means all documents, files, records, images, instructions, specifications, codes, requirements, samples, measurements and other information and materials provided by pdwise to the Client in relation to the performance of the Services.

Privacy Policy means the pdwise Privacy Policy as updated from time to time.

Proposal means the proposal issued by pdwise to the Client outlining the subscription services to be provided by pdwise to the Client.

Services means the services provided by pdwise to the Client as described in the Proposal and includes:

1. set-up and provision of the Account;
2. initial onboarding assistance and training; and
3. ongoing in-Platform support.

Subscription means a subscription to access the Services.

Subscription Date means the date on which the first instalment of the Subscription Fee is paid by the Client.

Subscription Fee means the monthly fee that is payable to pdwise in relation to a Subscription, as set out in the Proposal.

Terms means these Terms and Conditions as amended from time to time.

Website means the website displayed at https://pdwise.com.au/ and any associated domains or subdomains.

Acceptance of Terms 

2. The Client may accept these Terms by:
   1. signing and returning these Terms or the Proposal to pdwise, including via email or any electronic execution platforms acceptable to pdwise; or 
   2. confirming by email that it accepts these Terms or the Proposal; or 
   3. instructing pdwise by email to proceed with the provision of the Services.  
3. The Client acknowledges and agrees that it has read, understood and agrees to be bound by the terms and conditions contained in these Terms, the Privacy Policy and the Platform Terms. 
4. The Client’s access to the Services and use of the Platform is conditional upon and subject to its acceptance and ongoing compliance with these Terms and the Platform Terms.

The Services

5. pdwise agrees to supply the Services in consideration of the Client paying the Subscription Fee.
6. The Subscription commences on the Subscription Date and will continue until such time that it is terminated in accordance with these Terms.
7. The scope of the Services provided as part of the Subscription will be set out in the Proposal. Should the Client request pdwise to perform work which is outside the scope of services specified in the Proposal, it must do so in writing and any such work may incur additional cost. pdwise is not obliged to accept any change request made by the Client. 
8. The Client acknowledges and agrees that in order for pdwise to commence building on the Platform, the Client’s subscription must be active. The Client will be billed prior to gaining access to the Platform, with the billing amount dependent on the duration of the set-up process. For example, the Client may be billed 1-2 Subscription Fees in advance of Platform access.

Client acknowledgements

9. The Client expressly acknowledges and agrees that:
   1. pdwise is a reseller of the Platform and does not own, store, maintain, or develop the Platform or any technology associated with the Platform;
   2. the Services to be provided by pdwise are limited to those set out in the Proposal (or as otherwise agreed in writing by pdwise) and do not include any customization, development, or maintenance of the Platform;
   3. the Client is solely responsible for its use of the Platform and compliance with the Platform Terms;
   4. the Client is responsible for the use of any part of the Services by its employees and any other person the Client provides with access to the Account or Platform, and the Client must ensure that it does not use any part of the Services:
      1. to break any law or infringe any person’s rights (including Intellectual Property Rights);  
      2. to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or  
      3. in any way that damages, interferes with or interrupts the supply of the Services;
   5. the technical processing and transmission of the Services, including the Client Data, may be transferred unencrypted and involves transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices; 
   6. the Client must not copy, modify, adapt, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble or decompile any part of the Platform or otherwise attempt to discover any part of the source code of the Platform;
   7. there may be times where the Platform experiences disruptions or is not working at full capacity. In the event of service delays or interruptions, pdwise will log a ticket with the Platform on the Client’s behalf and use reasonable endeavours to find a solution within a reasonable timeframe;
   8. pdwise is not liable for any issues, damages, or losses arising from the Client’s use of the Platform, including but not limited to data breaches, data loss, or service interruptions; 
   9. pdwise does not store any data locally; 
   10. the Client is responsible for managing its data within the Platform; and
   11. pdwise may from time-to-time use third-party providers for certain aspects of the Services, and the Client’s use of such third-party services may be subject to additional terms and conditions.

Subscription

10. During the term of this agreement, and subject to the Client’s compliance with these Terms, pdwise grants the Client a non-exclusive, non-transferable, non-sublicensable and revocable licence (or sub-licence) to access and use the Platform via the Account solely for the Client’s business purposes and as contemplated by these Terms and the Platform Terms.
11. The Client is responsible for providing accurate information for Account setup and ensuring compliance with all applicable laws and regulations regarding data usage.
12. When creating an Account, the Client represents and warrants that:
    1. all information provided is true, accurate and complete to the best of its knowledge;
    2. it has the full right and authority to enter into these Terms and perform its obligations under these Terms;
    3. it has read and understand the terms and conditions contained within these Terms, the Privacy Policy and Platform Terms and agree to be bound by them; 
    4. it will only use the Services for lawful purposes; and
    5. it will update its Account details with true and accurate information at all times.
13. The Client further agrees and acknowledges that it is solely responsible for keeping all relevant and personal information, including but not limited to its Account’s username, passwords and other security features, confidential and secure to prevent unauthorised use of its Account. If the Client reasonably suspects that its Account’s security is compromised, it must notify pdwise immediately. 
14. The Client agrees to be solely responsible for its conduct associated with, or originating from, its Account.
15. pdwise is not liable or responsible in any way for any damages, liabilities, costs and/or expenses (including any direct, indirect, incidental, special or consequential damages and/or legal fees and expenses) arising out of, or related to, any breaches of the Account’s security.

Pricing

16. The Client agrees to pay the Subscription Fee as set out in the Proposal or as otherwise agreed in writing by pdwise.
17. Unless otherwise stated, the Subscription Fee is exclusive of GST. The Client must pay to pdwise the GST payable in respect of the supply of the Services.
18. Payment of all duties, customs, fees or taxes associated with the sale of the Services is the responsibility of the Client. Any applicable taxes, levies and/or other transaction fees will be added to the final amounts charged.
19. pdwise is entitled to require the Client to pay any out of pocket expenses reasonably incurred in connection with the performance of Services under these Terms, including but not limited to costs for SMS and email usage on the Platform. As part of the Subscription, pdwise allows a monthly usage credit for SMS/email usage on the Platform as detailed in the Proposal (or if not detailed in the Proposal, $50 credit per month). Usage exceeding this credit may, at pdwise's discretion, be re-billed or added to the Client's monthly Subscription Fee at any time. pdwise will provide evidence of usage to justify any cost increase.

Billing and Payment

20. Upon confirmation of the Client’s acceptance of these Terms:
    1. pdwise will issue an invoice for the Subscription Fee;
    2. the Client must complete a direct debit authorisation form as provided to them by pdwise; and
    3. pdwise will arrange processing of the first payment of the Subscription Fee and the Client hereby agrees to the processing of such payment. 
21. Thereafter, the Subscription Fee (as well as any other costs owing by the Client under these Terms) will be payable by way of direct debit in advance on each monthly anniversary of the Subscription Date. If the initial recurring payment falls on the 29th, 30th or 31st of any given month, pdwise may adjust the billing cycle to the 1st of the following month on the next billing cycle.
22. The Subscription will automatically renew each month unless terminated in accordance with these Terms. 
23. If any Subscription Fee remains outstanding for a period of seven (7) days or more, pdwise may suspend the Client’s access to the Account and use of the Services until the Client pays all outstanding fees. pdwise may continue to charge the Client fees during any period of suspension, and the Client must pay all outstanding fees in order to regain access to the Services.

Intellectual Property

24. The parties agree that as between them:
    1. the Intellectual Property Rights owned by the Client in the Client Content will remain the property of the Client;
    2. the Intellectual Property Rights owned by pdwise in the pdwise Content will remain the property pdwise; and
    3. Intellectual Property Rights in all material and content developed by pdwise in connection with the Services will vest on creation in pdwise, including but not limited to any design, copywriting, CRM setup, or other work developed by pdwise as part of the Services.
25. The Client grants to pdwise a non-exclusive, non-transferable, royalty free licence to make such use of the Client Content as is, in the reasonable opinion of the pdwise, necessary to provide the Services as set out in this agreement.
26. Subject to the Client’s compliance with these Terms including payment of the Subscription Fee, pdwise grants to the Client a revocable, non-exclusive, non-transferable, royalty free license to make such use of the pdwise Content as is, in the reasonable opinion of pdwise, necessary to receive the benefit of the Services.

Client Data

27. The Client grants pdwise a licence to copy, transmit, store, backup and/or otherwise access or use the Client Data during the term of this agreement (and for a reasonable period thereafter) to:
    1. supply the Services to the Client (including to enable pdwise to set up the Account and to enable the Client to access and use the Platform);
    2. enhance and otherwise modify the Services; and/or
    3. as reasonably required by pdwise to perform its obligations under these Terms. 
28. The Client acknowledges and agrees that:
    1. pdwise is not responsible for the integrity or existence of any data on the Platform; and
    2. pdwise assume no responsibility or liability for the Client Data. The Client is solely responsible for the Client Data and the consequences of using, disclosing, storing or transmitting it through the Platform. 
29. The Client represents, warrants, acknowledges and agrees that: 
    1. it has obtained (and will ensure the currency of) all necessary rights, releases and permissions to provide or have the Client Data provided to pdwise and to grant the rights granted to pdwise in this agreement;
    2. the Client Data (and its transfer to and/or use, collection, storage or disclosure by pdwise as contemplated by this agreement) does not and will not violate any laws (including those relating to export control and electronic communications) or the rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and 
    3. it will keep pdwise indemnified against any costs, losses, damages and/or expenses arising in respect of any third party claims in relation to the use of the Client Data.

Amendment by pdwise

30. pdwise may at any time and at its sole discretion (without any liability to the Client), amend, revise or modify these Terms, the Subscription Fee and/or scope of Services by giving written notice to the Client. This may result in additional services being provided or some of the existing services being terminated. If the Client doesn’t agree to the proposed changes, the Client can terminate the agreement by notice in writing. If the Client continues to use the Services after such notice, it will be deemed to have accepted the amendment.

Termination of agreement

31. This agreement may be terminated by either party, at any time, by providing thirty (30) days’ written notice.
32. pdwise may terminate this agreement immediately by written notice if:
    1. the Client has committed any material breach of these Terms and failed to remedy that breach within seven (7) days of receipt of a written request from pdwise; 
    2. pdwise’s agreement with the Platform Provider terminates, or pdwise ceases being a reseller of the Platform for any reason; and/or
    3. pdwise decides to no longer offer the Services.
33. Any termination of the Subscription will take effect from the beginning of the next billing cycle unless otherwise determined by pdwise.
34. The Client acknowledges and agrees that it will not be entitled to any credits or refunds (whether in part or in full) for any unused Services or portion of Services.
35. pdwise will only issue refunds if required to do so under the Australian Consumer Law.
36. The Client must pay for all Services provided and costs incurred prior to the date of termination.
37. Upon termination of these Terms: 
    1. the licence granted to the Client pursuant to clause 10 will automatically be revoked;
    2. the Client will no longer have access to the Account, Platform and/or Services; and
    3. ownership of the Account will not be transferred to the Client unless otherwise agreed by pdwise in its sole discretion.
38. If the Client wishes to have the Account transferred to them, pdwise may, at its sole discretion, agree to facilitate the transfer for a fee of $7,000 plus GST, payable in full prior to the transfer. The parties will enter into a separate IP assignment deed documenting the assignment of IP solely to the extent required to facilitate the transfer.

Exclusions and limitations of liability

39. Subject to all applicable laws, the Services are provided, on an as-is basis. pdwise makes no representation or warranty, express or implied, including any implied warranty of merchantability or fitness for a particular purpose.
40. All representations and warranties, which may be implied by law into these Terms, are excluded except to the extent that it would be unlawful to do so.
41. To the maximum extent permitted by law, pdwise will not be liable for any loss or damage, costs or expenses of any kind, whether direct, indirect, incidental or consequential including but not limited to those arising from or connected with:
    1. the Subscription or provision of the Services;
    2. suspension or cancellation of the Account;
    3. the Client’s use of the Platform (including but not limited to data breaches, data loss, or service interruptions);
    4. any inability to access the Platform or the Services;
    5. any interruptions or delays in accessing the Platform or any third-party websites; 
    6. any delay in the provision of the Services, or failure to meet any deadlines, by pdwise; or
    7. any circumstances beyond the reasonable control of pdwise,

whether in contract, tort (including negligence) or otherwise.

1. In no event will pdwise's aggregate liability arising out of or in connection with these Terms exceed the total Subscription Fees paid (minus any fees paid by pdwise to the Platform Provider on the Client’s behalf) during the twelve (12) month period prior to the event giving rise to the liability. 

Indemnity 

43. The Client agrees to indemnify pdwise against any liability, loss, damage, costs and/or expense whether direct, indirect, incidental, special and/or consequential arising out of or in connection with:
    1. a breach of these Terms or the Platform Terms by the Client, or any person acting under the Account; and/or
    2. the Client’s use of the Platform or Services.

Notices

44. Any notice to be given by pdwise under these Terms, or in relation to the Services, must be in writing, and sent to the email address provided by the Client in respect of the relevant Account, or by posting the relevant information on the Website. Such notice shall be deemed to have been given at the time the email was sent by pdwise, or at the time the relevant information was posted on the Website. 
45. Any notice to be given by the Client under these Terms, or in relation to the Services, must be in writing, and sent to dimitri@pdwise.com.au.

Assignment

46. The Client must not assign, transfer or sub-licence any of its rights or obligations under these Terms, except with the prior written consent of pdwise.

Subcontracting

47. Pdwise may subcontract the performance or provision of any part of the Services without obtaining the prior written consent of the Client.

Consent to communication 

48. By agreeing to these Terms, the Client also consents to receiving further electronic communications from pdwise in relation to the pdwise business, including promotions and special offers. The Client may email pdwise at any time to unsubscribe from receiving electronic commercial messages from pdwise.

General

49. If any term or provision of this agreement is held to be illegal, void or unenforceable (in whole or in part) in any jurisdiction, such term or provision or part of such term or provision will be deemed not to form part of this agreement in that jurisdiction, but the validity and enforceability of the remainder of this agreement in that jurisdiction and the validity and enforceability of that term or provision in any other jurisdiction will not be affected.
50. All rights not expressly granted in these Terms are reserved.
51. Any indemnities and clauses intended to survive termination do survive termination or expiration of this agreement.
52. All waivers must be in writing. A single or partial exercise or waiver by a party of a right relating to these Terms does not prevent any other exercise of that right or the exercise of any other right.
53. Unless expressly stated otherwise in writing by pdwise, this agreement does not create a relationship of employment, trust, agency or partnership between the parties.
54. Unless expressly stated otherwise in writing by pdwise, these Terms (including the Proposal) constitute the entire agreement between the parties and supersedes all prior or contemporaneous writing, negotiations and/or discussions with respect to the subject matter.
55. The laws of New South Wales, Australia govern these Terms.