date of last update: 16th January 2019
This Terms of Service applies to all business services provided by David Tiong (ABN 19 717 801 434) (Tiong Creative and David Tiong Web Consultancy) and any person authorised to act on behalf of Tiong Creative. In this document we refer to David Tiong as “we”, “us”, “our”, “David Tiong” or “Tiong Creative”.
If you engage our services, join our memberships, signup for our email newsletters, contact us via email, web form, live chat, phone or other communications, then you become the Client, which means the person, organisation or business to which Tiong Creative is providing services, and includes any person authorised to act on behalf of you, as advised in any proposal, work request, email, phone or other communications between you and us. In this document we refer to the Client as “Client” or “you”.
If you do not engage our services, but use our websites for general information purposes, then you do not become a Client, but remain a website visitor.
By using our websites (website visitor) or engaging our services (Client), you must accept our Terms of Service in full. If you do not agree then you must cease using our websites and our services immediately. You must be at least 18 years of age to use our websites, or to engage our services.
2. Using our business services
Tiong Creative provides a range of services, including domain name management, website hosting, website build projects, website rebuild projects, email marketing campaigns, logos and graphic design, website content management, support, consultations and other services. Our services are provided by David Tiong and our support team of contractors and specialist partners.
You acknowledge that you are in the position to request our services for yourself, your business, or on behalf of your company or organisation. You acknowledge that your electronic submissions and other communications with Tiong Creative, constitute your agreement and intent to be bound by and to pay for the services provided by Tiong Creative.
b) Fees and Payments
When we quote (or provide a proposal document) we estimate the time and resources expected to complete the task or project that you have requested. For hourly rate projects and tasks we invoice at a rate of $125 AUD per hour. If urgent work is requested or required to meet a deadline that requires us to work on weekends or public holidays then an hourly rate of $185 AUD applies. We try to make our quotes as accurate as possible, and allow for one round of client revisions, however unexpected website issues can arise, extra time may be required to revise designs, or you may request further adjustments. If the actual billing hours exceed what we have estimated in a quote by more than 10%, then we reserve the right to invoice you for the additional hours.
Before we commence work, we require a scheduling fee to be paid in full. This fee is non refundable as we are booking in time and allocating resources to your work request. This scheduling fee is 30% of the estimated total fee, or for website projects with a duration greater than one month the scheduling fee is 30% of the estimated total fee or $5000 (whichever is less).
For projects with a duration greater than two months, monthly instalments will be invoiced, based on the work completed to date.
All invoices from Tiong Creative must be paid within 15 days of invoice date. Final invoices will be issued on completion of work tasks and projects, for the quoted/estimated price (or the total time tracked for hourly rate projects and tasks) plus any additional expenses and billings incurred for the work completed to date, minus any scheduling fee and monthly instalments.
c) Delays and Cancellations
Once we commence a project or task then we are working to a planned schedule and will allocate time and resources to achieve this. You agree to review, respond and approve our work in any timeframes we have provided, or within 7 days of our notification to you. If the work is delayed by you for more than 7 days, resulting from a delay in your response or a delay in providing information or resources (such as text, images, files, etc) that we have requested, then the project or task is placed on temporary hold and we will advise you by email. If you then delay a further 7 days, the project or task is suspended and we will invoice you for all work completed to date. You forfeit any scheduling fee or payments you have made in advance. To resume the project or task we will require a new work request or proposal to be agreed on, with revised cost estimates, timeframes and payment of a new scheduling fee.
You may cancel a project or task at any time. If you cancel a project or task after payment of scheduling fee, or once we have commenced working on the project or task, then we will invoice you for any additional costs that we have incurred over and above the scheduling fee.
Tiong Creative is not responsible for a missed launch or deadline if you have been late in supplying required information or resources, or have not reviewed or approved our work in the required timeframe, or for any delays caused by matters outside of the reasonable control of Tiong Creative, such as power or equipment failures, sickness, or other.
d) Digital Content
If we are required to supply or produce content for a website or digital media (eg, emails, social media, etc) then we will source images that are licensed for use for that purpose, or licensed as Creative Commons Zero (CC0) public domain. For text content we will revise your supplied content or we can create text content for you.
Any content or resources that you supply for use on your website or digital media (eg, logos, images, photographs, text, etc) you must have the rights to use, so as not to cause us to infringe on any patent, registered trademark or copyright. You agree to indemnify David Tiong against any action taken by a third party resulting from content that you have supplied or approved for use.
You also must not supply material that is unlawful, threatening, vulgar, obscene; or that violates privacy, copyrights, confidentiality; or that breaks any laws, defames, harasses, incites hatred; or that features swearing, obscenities, nudity or makes false or misleading claims; or that is racially, ethnically or otherwise objectionable. Submission of inappropriate material will result in immediate termination of all services to the Client and you will be required to pay for all work done to date.
e) Domain management, Hosting, Support and Maintenance
David Tiong offers domain name services as a reseller with 2 registrars – Synergy Wholesale and OpenSRS. ICAAN (Internet Corporation for Assigned Names and Numbers) manages and defines policies for domain names and coordinates the unique identifiers that enable connection to people over the internet. More information regarding domain names, your rights and responsibilities as a registrant are available at the ICAAN website https://www.icann.org/resources/pages/benefits-2013-09-16-en. Prices are subject to change without notice.
We offer support to our clients in various ways including email, phone, live chat, online conferencing and in person (subject to location and availability). Support, consultations and training are not free, as they require time and resources. Unless included as part of an agreement or in the scope of a project, we will invoice you for time taken to provide you with support.
f) Legal information and Limitation of Liability
David Tiong does not guarantee that our websites, our services, or the client websites we host or work on, will be constantly available, or be error-free and so we will not be liable to you or any third party for any damages, lost profits, unforeseen expenses or other additional, incidental, consequential damages arising out of the operation of, or inability to operate or access our websites, our services or our clients’ websites.
You agree that our entire liability with respect to David Tiong services provided to you, is solely limited to the amount you paid us for such services during the provision of the service.
When building or rebuilding a client’s website, if included in the project scope, we provide guidance in setting up the website to meet key search engine criteria, however we offer no guarantees in this area as the criteria change regularly and depend on many factors. Therefore we do not promise or guarantee an increase in your search engine (Google) rankings, nor that you will maintain your current rankings.
We do not guarantee that the information on our websites is complete, accurate or non-misleading. Any content should be confirmed by your own research and analysis. David Tiong will not be liable to you, in relation to any content on our websites, or in connection to our websites, for any loss or damages, whether direct or indirect, incidental, or consequential.
Links in our websites are intended to be useful and relevant, however we cannot guarantee that the external sites have not changed their content, so if you choose to click on links you do so at your own risk.
You expressly agree that use of our websites is at your risk. We do not make any warranty as to the results that may be obtained from use of our websites. By using our websites, you agree that the exclusions and limitations of liability set out are reasonable. If you do not think they are reasonable, you must not use our website.
If any provision of this Terms of Service shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Terms of Service and shall not effect the validity and enforceability of any remaining provisions.
You shall assume responsibility for all costs, expenses, legal fees and costs, and interest incurred by David Tiong arising out of any default in payment or violation of our Terms of Service.
This Terms of Service and any agreement or contract to which they apply shall be governed by, and are subject to the jurisdiction of the laws of the State of Victoria in Australia.
3. License to use our Websites
a) Acceptable Use
You may view or print pages from our websites for your own personal or business use, subject to following restrictions. You must not:
- republish content from our websites including to another website
- on sell or rent content from our website
- claim any of the content from our website as your own
Our websites must not be used in any illegal or harmful way, or in connection with any illegal or harmful activity. You must not cause any damage to our websites or related services, nor undertake any scraping or copying of data, nor infect with spam, virus, spyware, malware or any malicious software.
You must not use our websites in any way that causes, or may cause, damage to the website or Tiong Creative services, or impair the accessibility of our websites; or in any manner which is illegal, fraudulent or harmful, or in connection with any illegal, fraudulent or harmful purpose or activity.
b) Restricted Access
Certain areas of our websites are restricted for members only. We reserve the right to restrict these areas, and any area of our websites. If we provide you with login id and password to access restricted website areas or restricted content, then you must keep this private and not redistribute. We may cancel your access at any time without notice or explanation at our discretion.
c) User Content
Any material that you submit to our websites, including but not limited to text, images, videos and files are considered as “user content”. By submitting user content, you grant David Tiong a non-exclusive, royalty free license to use, reproduce, adapt, publish and translate this content for any existing or future purposes. You must not supply material that is unlawful, threatening, vulgar, obscene; or violates privacy, copyrights, confidentiality; or breaks any laws, defames, harasses, incites hatred; or features swearing, obscenities, nudity or makes false or misleading claims; or is racially, ethically or otherwise objectionable. We reserve the right to remove or edit any user content.
d) Affiliate links and external links
Some external links on our websites are affiliate links. This means that a special tracking code is used and we may receive a commission or bonus if you visit that link and then choose to purchase a product or service from that provider. The price of the item is the same for you whether it is an affiliate link or not, except in certain cases where a discount may be applied as part of an affiliate promotion.
We will not use affiliate links except when the products or services provide value and we either currently use, or have used, for the businesses of David Tiong.
4. Changes to Terms
David Tiong may make changes to this Terms of Service at any time by updating this policy at https://www.davidtiong.com/terms-of-service/, and any changes are effective immediately on publishing.
Appendix 1: Additional Project Terms
Design and development
Tiong Creative uses an iterative design process to create a website, starting with a basic visual sketch to outlay the overall design look, based on the requested look, feel, layout and functionality of your website.
Next we create a prototype of a single web page (generally the home page), for initial feedback on the colours, fonts and key elements we intend to use for building the site. This allows you (the client) to be involved early on in the design process. Note that we recognise that websites are not static printed pages, instead they should be responsive (resize and adapt) to different size browsers and viewing devices, and as such they sometimes vary in how they look and perform in different browser environments, therefore we do not supply wireframes (mockups or prototypes) of every page when building or rebuilding a website.
The building or rebuilding of a website then begins, and the design is built as a unique childtheme upon an existing theme (for WordPress Content Management System – CMS websites), or from a Website Framework template (for non CMS websites). In some projects we may choose to use an alternative CMS system.
Once we have completed building or rebuilding your website, we will provide a video preview of the design showing each page, including a preview of how the design responsively changes for different devices. Depending on the project proposal, there may be an opportunity for you to go through the website either in person, or via a temporary website URL location.
At this stage we allow for you to make 1 round of minor revision requests, which we then implement and provide you with the opportunity to view the revision. If you are not happy with the design at this stage then you have the option to cancel the project or request further revisions, according to our terms of service (refer to sections 2b and 2c).
The HTML, CSS and other website code we use is intended for today’s browsers, with an approach to looking forward and not back. Therefore users of older or less capable browsers and devices will experience a design that may not look the same as in current versions. There is also no guarantee given that a website will appear the same across all platforms and devices, as digital environments are constantly changing and different operating systems, browsers and technologies will render website pages differently. However all websites built by Tiong Creative are tested in the current major browsers, at the time of building, to ensure reasonable consistency in appearance and functionality where possible.
The project then moves into a soft launch stage where we prepare and export your website into a live hosting environment, followed by the official launch where you can then commence promoting your new website.
Closing stages include our post launch monitoring, setup of maintenance plans, archiving of project materials and payment of final invoices.
Note that fees and payments, delays and cancellations, and supply of digital content are subject to our terms of service, and you should refer to the corresponding sections for more information.
Copyrights and Licensing
Upon final payment and delivery of the website, copyright is assigned as follows:
- Your website is made up of many elements, with different licences that apply to different elements. The website code, CSS, visual template elements and markup we own and license to you to use only for your website as setup by Tiong Creative, except in such instances where a prior existing licence overrides, as in the case of a GPL licence for WordPress, themes, framework templates and plug-ins. If applicable, this licence replaces our licence for the related item.
- Icons, graphics and other imagery that are used on your website, are licensed only for use on your website as setup by Tiong Creative. Any image files or created logo files that you have paid for in this project, will be transferred to you and so you should store them safely, as Tiong Creative is not required to keep them or provide any native source files that are used to make them.
- You own text content, photographs and any data that you have provided unless you are not the creator of those items, and then the ownership belongs to someone else.
- Tiong Creative reserves the right to display and link to your completed project as part of our portfolio and to write about the project on websites and in magazine articles about web design. Tiong Creative places a small credit link back to our site in the footer of your website’s home page. If you do not wish to have this link displayed, then you may request removal by submitting a request in writing.