These Terms and Conditions (Terms) together with our letter of proposal (Proposal) form the basis of our agreement to provide to you our digital marketing and advertising services, as specified in our Proposals.

1.                    Acceptance

(a)                  These Terms together with our Proposal form a binding contractual relationship (Agreement) between you and The Urban Developer.Com Pty Ltd ACN 169 148 958).

(b)                 You agree to be bound by this Agreement if:

(i)                     you sign and return our Proposal;

(ii)                   you continue to instruct us (either orally or in writing) to perform our services as set out in the Proposal (Services), whether or not you sign the Proposal;

(iii)                you undertake our membership registration process (where applicable); or

(iv)                you pay to us any deposit or any fees for our Services as specified in the Proposal, whether or not you sign the Proposal.

2.                    Services

(a)                  Upon your acceptance of our Proposal we will deliver to you our Services in the manner and at the times specified in the Proposal.

(b)                 In order to provide our Services we will require you to provide content and advertising materials (Content), as well as certain approvals. All Content must meet the specifications provided in our Proposal and these Terms.

(c)                  All Content and approvals must be provided promptly and within the time frames specified in the Proposal, or as otherwise notified by us to you. If you do not provide suitable Content or approvals within the specified time frames, we may not be able to deliver our Services.

(d)                 In the event that we are unable to deliver our Services due to a failure by you to comply with clause 2(b) or 2(c), you will not be entitled to a refund of any fees paid to us for our Services, and we reserve the right to charge you fees commensurate with the work that we have undertaken on your behalf.

(e)                  We do not accept liability for, and you hereby release us from all liability resulting from, any loss, cost, expense or damage that you may suffer as a result of us not delivering our Services due to your failure to comply with clauses 2(b) and 2(c).

(f)                   You may at any time request that we provide you with services additional to those contained in our Proposal (Additional Services). We will consider requests for Additional Services on a case by case basis however we are under no obligation to provide such Additional Services.

3.                    Membership Accounts

(a)                  In order for us to deliver our Services we may require that you create a membership account (Member Account) and undertake our member registration process.

(b)                 You warrant that in undertaking the membership registration process and creating a Membership Account:

(i)                     all information that you provide will be complete and accurate in all respects;

(ii)                   you will only establish a Membership Account in your own name;

(iii)                you will not create false aliases or impersonate any person in creating your Member Account, participating in a Forum (as defined in clause 6), or using our website generally.

(c)                  You must at all times maintain the security of your username and password and must not, without our prior written consent, permit any person to use your Member Account.

(d)                 You acknowledge that you are responsible for all actions and conduct undertaken through your Member Account, regardless of the person that accesses and uses your Member Account.

4.                    Advertising Requirements

4.1                Media Guidelines

We have specific media guidelines for Content. However, where you have a concept or requirements that fall outside of such guidelines, we will consider and discuss with you the concept and your requirements to determine whether we are able to deliver our Services.

4.2                Requirements for All Media

(a)                  You must obtain our prior written approval to:

(i)                     use any of our trade marks or logos, or to use the name “The Urban Developer” (or any name similar thereto), on any URL destination page or landing page to which any advertisement directs users;

(ii)                   use the terms “Member Exclusive” or  “Business Partner”, or any other similar terms, in connection with us or the Services that we provide;

(iii)                set any third or fourth party cookies for re-targeting or any other user tracking purposes. Any content featuring unauthorised connections to external servers for the purposes of user tracking will be removed from rotation and will only be returned to rotation once unauthorised connections have been removed and at our discretion;

(iv)                change, alter or amend any image, graphic, video, link or form of media stored on a third party advertisement server;

(v)                   submit Content for publishing that does, or has the ability to, drop cookies or other tracking tools on our websites.

(b)                 All creative banners provided for us to use in the delivery of our Services must incorporate your individual company logo.

(c)                  All Content, including graphics and copy, that you provide to us for use in the delivery of our Services are subject to our approval, which may be withheld or provided at our sole discretion.

(d)                 We accept most rich media third party advertisement serving (for example, DFP, Atlas and MediaMind) however reserve the right to reject any rich media third party advertisement serving at our discretion. We do not, for example, accept iFrame Tags.

(e)                  Any third party creative tags provided to us for use in the delivery of our Services must be SSL compatible.

(f)                   Asynchronous loading must be used in any third party advertisement code.

(g)                 We do not permit the downloading of files directly from advertisements and as such all advertisements must only link users to a landing page.

(h)                 You must ensure that any Content you have provided for use by us in the delivery of our Services does not resemble any of our content, including but not limited to in the use of colours, fonts and design motifs. We reserve the right to determine at our sole discretion whether or not an advertisement is too similar to any of our content, in which case we may elect not to display the advertisement.

(i)                    Click/destination URL’s are required for all advertisements. The destination URL must be approved by us and clicking the URL in the advertisement must initiate the opening of a new browser window.

(j)                    All Content provided for use by us in the delivery of our Services must be compatible with both MAC and PC platforms, as well as multiple browser versions of Internet Explorer, Firefox, Chrome, Mozilla and Safari.

(k)                  Any third party tags contained in advertisements must be live and active at the time of submission to us, to enable us to undertake thorough testing before launch. If we are unable to undertake such testing we may refuse to use the advertisement in the delivery of the Services.

4.3                Requirements for Rich Media

(a)                  Any video contained in rich media must be user initiated only.

(b)                 Where rich media includes audio:

(i)                     such media must include a mute button;

(ii)                   audio must stop upon the click of a user;

(iii)                sound must be at 5% of the original maximum volume of the media;

(c)                  Animation and looping is permitted however is limited to a maximum of three loops.

(d)                 All Flash advertisements must:

(i)                     provide an alternative image that conforms to the designated GIF/JPEG specifications for use in the event that a user’s browser does not support Flash;

(ii)                   be no more than 30K in size;

(iii)                be click tag enabled; and

(iv)                include the click tag tracking: on (release) {get URL (_leve0.clickTag,”_blank”);}

5.                     Advertisements

(a)                  You acknowledge we retain complete editorial control over the publication of any Content on our websites, in emails and through any other medium through which we deliver our Services, and may at our discretion:

(i)                     refuse to include Content at any time;

(ii)                   remove Content at any time; and

(iii)                position Content as we see fit.

(b)                 We do not accept liability for, and you hereby release us from all liability resulting from, any loss, cost, expense or damage that you may suffer as a result of the exercise of our discretion under clause 5(a).

(c)                  Without limiting 5(a) the size of Content published will be in accordance with the specifications in the Proposal, subject to availability.

(d)                 We reserve the right to label Content as an "advertisement" or sponsored content for clarification, and to stipulate any other conditions to ensure that it is clear that the Content is an advertisement or sponsored content.

(e)                  We do not accept, and you release us from, all responsibility for any errors or mistakes in Content that is published.

6.                    Forum

(a)                  As part of the delivery of our Services and where specified in the Proposal we may provide you with access to an online forum through our website (Forum), enabling you to correspond with other users of our website regarding published Content.

(b)                 Your use of the Forum is at your own risk and you acknowledge that we accept no responsibility for the conduct or activity of users of the Forum.

(c)                  You warrant that any Content or communications that you make within the Forum will be:

(i)                     in accordance with our Agreement;

(ii)                   free of any virus or malicious code;

(iii)                not false, defamatory, misleading or illegal; and

(iv)                will not breach the rights of any third party, including third party intellectual property rights.

(d)                 We reserve the right at our discretion to amend or delete any Content or communications that you or any other User posts to the Forum. Notwithstanding this, you acknowledge that we are under no obligation to do so, and that are we are under no obligation to otherwise monitor Content and communications within the Forum.

(e)                  You acknowledge that we do not endorse any Content or communications within the Forum and that we do not offer any warranty as to the accuracy of any Content or communications made by you or any user within the Forum.

(f)                   You must, as soon as reasonably possible and in any event within 3 days, report to us any dispute that you have with any other user of the Forum. Once we have received notification of a dispute we will determine at our discretion whether to assist the parties with regard to the resolution of the dispute.

(g)                 We reserve the right to cancel or suspend your access to the Forum at any time where we consider, in our sole discretion:

(i)                     your use of the Forum has or is likely to breach the terms of our Agreement;

(ii)                   your use of the Forum has or is likely to infringe upon the rights of a third party, including third party intellectual property rights;

(iii)                your interaction with other users of the Forum is abusive, misleading, unethical, illegal, immoral or in bad faith; or

(iv)                it is necessary and reasonable to do so in order to protect our business.

7.                     Fees

(a)                  Our fees for the services we provide (Fees) will be charged in accordance with our Proposal.

(b)                 You must pay our Fees at the times and in the manner directed in our Proposal.

(c)                  We may request that you pay our Fees in advance, or that you pay a percentage of our Fees as a deposit.

(d)                 Where you have requested that we provide Additional Services, the fees payable for such Additional Services will be calculated at the rate specified in the Proposal for Additional Services. If no rate for Additional Services has been specified in the Proposal, we will charge for such Additional Services at our normal rate, which will be a commercial market rate.

(e)                  We will provide you with a tax invoice for all Fees payable to us for the delivery of our Services. Where we provide you with Additional Services, we will invoice you separately for the fees associated with those additional services.

(f)                   If we have provided you with a tax invoice for Additional Services, payment must be made within five (5) business days of the date of the tax invoice. We reserve the right to charge  interest on overdue invoices will be charged at the rate that is 2% above the National Australia Bank Overdraft Base Rate.

(g)                 In the event that you fail to pay an invoice within the specified trading terms and we are required to engage in debt recovery proceedings or institute court proceedings to recover overdue amounts, you acknowledge and agree that we have the right to recover all of our costs in relation to the action taken, including but not limited to legal costs and outlays on a full indemnity basis.

8.                    Intellectual Property

(a)                  You grant to us a worldwide, royalty free, non-exclusive, sub-licensable and irrevocable licence to publish and use any Content and any other documentation or materials that you provide to us to use in the delivery of our Services, as well as any Content, documentation and materials that you have published in a Forum. 

(b)                 You warrant that you have the requisite authority to grant to us the licence referred to in clause 8(b).

9.                    Limitation of Liability

(a)                  You acknowledge that we are not liable for any loss, damage, cost or expense that you may incur or suffer, due to our website (or any parts of it), our email system or any other medium through which we deliver the Services, being inaccessible to your or any user, or otherwise being non-operational or non-available, for any reason.

(b)                 You acknowledge that, if for any reason an electronic communication fails, or any medium through which we deliver our Services fails, we are not liable for any loss, damage, expense or cost that you may suffer or incur as a result.

(c)                  Except in relation to liability for personal injury, to the maximum extent permitted by law, you acknowledge and agree that we will not be liable for any ordinary, incidental, consequential or special loss or damage (including but not limited to loss of profits), arising out of this Agreement.

(d)                 The provisions of this clause 9 survive the termination of this Agreement.

10.               Indemnity

(a)                  You indemnify us against all liability, loss, damage, costs and expenses, suffered or incurred by us, arising from or incurred in connection with:

(i)                     your breach of this Agreement;

(ii)                   the use, including unauthorised use, of your Member Account;

(iii)                the infringement of any third party rights resulting from the use and publication of any Content or other documentation and materials that you have provided to us;

(iv)                your dealings with any other user of a Forum;

(v)                   any act of fraud or wilful misconduct made by you or made on your behalf; and

(vi)                the delivery of our Services to you in accordance with this Agreement.

(b)                 The indemnity provided in clause 10(a) will be proportionately reduced to the extent that any damage, cost, expense or loss suffered was contributed to by our negligent acts or omissions.

11.                Term and Termination

11.1             Term

(a)                  This Agreement will commence upon your acceptance of our Proposal in accordance with clause 1, and will terminate upon expiry of the period specified in our Proposal, or any further period specified for the delivery of Additional Services.

(b)                 Either party may terminate this Agreement with immediate effect where the other party has committed a breach of the Agreement that is not capable of remedy, or where the breach is capable of remedy and it has not been remedied by the party in breach for a period of fourteen (14) days from the date on which it received notification of the breach.

(c)                  Where this Agreement is terminated on the basis of 11.1(b) you acknowledge and agree that:

(i)                     you are not entitled to a refund of any Fees or additional fees paid to us; and

(ii)                   if you have not already paid to us our Fee or any additional fees, you remain liable to us for the payment of such fees, and must make payment of those fees on demand.

12.               Confidentiality

(a)                  Each Party will treat as confidential, and procure that its officers, employees, contractors and agents treat as confidential and will not disclose, unless disclosure is required by law:

(i)                     the terms of this Agreement and any contract formed pursuant to these Terms; and

(ii)                   information generated for the performance of any contract arising from these Terms.

(b)                 Each party agrees to take all reasonable precautions to prevent any unauthorised use, disclosure, publication or dissemination of confidential information of other party in accordance with this clause (although this does not apply to the disclosure of any Content, material or documentation provided to us for the purposes of the delivery of our Services in accordance with this Agreement, or that you disclose for the purposes of participating in the Forum).

13.                Notices

Any notices given under or in connection with this Agreement:

(a)                  must be in legible writing and in English;

(b)                 must be:

(i)                     sent by email to the designated email address of the relevant party; or

(ii)                   delivered to the designated physical address of the relevant party.

(c)                  will be deemed to be received by the addressee:

(i)                     if delivered by hand, at the time of delivery;

(ii)                   if sent by post, on the third business day after the day on which it is posted, the first business day being the day of posting; or

(iii)                if sent by email, at the time that would be the time of receipt under the Electronic Transactions Act 1999 (Cth.

14.               Disputes

(a)                  If a dispute arises out of or relates to this Agreement (Dispute) a party to the Agreement may not commence any court or arbitration proceedings relating to the Dispute unless it has first complied with clause 14(b), except where the party seeks urgent interlocutory relief.

(b)                 A party claiming that a Dispute has arisen must give a Notice (Dispute Notice) to the other party or parties to this Agreement specifying the nature of the Dispute. The parties must then negotiate in good faith to resolve the Dispute expeditiously and within fourteen (14) days.

(c)                  If the Parties do not resolve the Dispute within fourteen (14) days of receipt of the Dispute Notice (or such further period as agreed in writing by them) any party to the Dispute may refer the Dispute to mediation by a mediator nominated by the President or the nominee of the President for the time being of the Queensland Law Society Incorporated.

(d)                 Each party must bear its own costs in connection with resolving the Dispute and the Parties must bear equally the costs of any mediator engaged.

(e)                  Any information or documents disclosed by a party under this clause must be kept confidential and may not be used except to attempt to resolve the dispute.

15.               General matters

15.1            Assignment

(a)                  You acknowledge and agree that we may assign or otherwise transfer the benefit of all or any part of this Agreement to any other person or entity.

(b)                 No rights, benefits or liabilities relating to this Agreement may be assigned, novated or otherwise transferred by you without our prior consent, which will not be unreasonably withheld.

15.2            Consents

Unless these Terms expressly state otherwise, a party may in its absolute discretion, give conditionally or unconditionally, or withhold, any consent under this Agreement. To be effective any consent under this Agreement must be in writing.

15.3            No Merger

No right or obligation of any party will merge on completion of any transaction contemplated by this Agreement.

15.4            Severability

Any provision of this Agreement that is illegal, void or unenforceable will be severed without prejudice to the balance of the provisions of this Agreement which shall remain in force.

15.5            Waiver

(a)                  Failure to exercise or enforce or a delay in exercising or enforcing or the partial exercise or enforcement of any right, power or remedy provided by law or under this Agreement by any party will not in any way preclude, or operate as a waiver of, any exercise or enforcement, or further exercise or enforcement of that or any other right, power or remedy provided by law or under this Agreement. 

(b)                 Any waiver or consent given by any party under this Agreement will only be effective and binding on that party if it is given or confirmed in writing by that party and no waiver of a breach of any term of this Agreement will operate as a waiver of another breach of that term or of a breach of any other term of this Agreement.

15.6            Further Agreement

(a)                  These Terms (and any documents executed in connection with them) are the entire agreement of the parties about its subject matter and supersede all other representations, arrangements or agreements.  Other than as expressly set out in these Terms, no party has relied on any representation made by or on behalf of the other.

15.7             Force Majeure

(a)                  Except for an obligation under clause 7, a party will not be responsible for a failure to comply with its obligations under these Terms to the extent that failure is caused by any event beyond the control of the relevant party (Force Majeure Event), provided that the party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation.

(b)                 Without limiting any other right to terminate under these Terms, if a Force Majeure Event affects a party's performance under these Terms for more than 30 consecutive days, the other party may immediately terminate this Agreement by written notice.

15.8            Privacy

We collect your information for the purposes of performing our obligations under this Agreement.  You acknowledge and agree that we may disclose your