Terms and Conditions
Welcome to Smoothy Web Design
1. Welcome to SmothyWebDesign’s marketplace for digital services. This agreement explains the rules that apply to buying or providing services using the Smoothy Web Design platform (‘user terms’).
2. When we refer to the ‘site’ we’re talking about the SmothyWebDesign platform at smothywebdesign.com. When we say ‘we’, ‘us’ or ‘Smoothy’ it’s because that’s who we are and we own and run the site.
3. Our user terms, including our Community Guidelines, apply to any use of the site whether or not you’re a member of the site. The user terms are between you and Smoothy. You’re making a legal commitment to us to stick to our user terms when you visit our site, so please read and understand them. If you don’t accept them then you will need to leave the site because any use, other than in agreement with these user terms, is unauthorised.
Finding and buying services
4. You need to be 16 years or over to browse the Smoothy Web Design site. We don’t knowingly collect any information from anyone aged 16 and under. If you want to buy or provide services, or use other site features, you need to become a member and be 18 years old or over. Membership is free. We call a member who buys services a ‘buyer’. We call a member who provides services a ‘service provider’ (if you want to become a service provider additional terms apply). When we refer to ‘you’ in these user terms we mean any users of the site (including buyers and service providers).
Before you buy
5. Buyers are responsible for choosing the right services to meet their needs and making sure that all aspects of the services, including their scope, the number of revisions available and turnaround time meet their needs. Buyers need to give the service provider they select a full brief for each job. It is the buyer’s responsibility to make sure that the brief is comprehensive and clear.
Agreeing to buy
6. A service provider agrees to provide services by entering into a separate agreement directly with the buyer. This is called the ‘services agreement’. It is your responsibility to make sure you understand the terms of the services agreement. In these user terms we use the word ‘job’ to talk about the services that a service provider agrees to provide a buyer under a services agreement.
7. Smoothy Web Design is not part of any services agreements you enter into with other members. There is no joint venture between any member and us. We’re not a re-supplier of services provided by service providers. Service providers are independent contractors and are not our employees, sub-contractors, partners or agents. We provide the site and not the services.
Payment, pricing and taxes
8. The prices advertised on the site for services are set by the service providers. Service providers are responsible for deciding what prices they want to charge. Service providers may change their prices (or change or remove their services) without notice. The price will not change for any job already started.
9. All prices are stated and charged in US dollars (USD$). You are responsible for any costs associated with currency conversion or bank charges.
10. Buyers pay for services using one of the methods offered on the site (‘payment method’). We will give you a job ID and issue a receipt for payment. We will hold the payment until the job has been closed.
11. Each of the following things need to happen to ‘close’ the job:
the service provider confirms that the services have been provided and submits content to the buyer for approval;
the buyer approves the outcome of the job;
the service provider completes the job by providing ‘materials’ to the buyer (‘job completion’);
seven days pass from job completion without a dispute being raised; and
if a dispute has been raised, the dispute resolution process is finalized.
12. The prices for services include all indirect taxes (like GST, VAT and sales taxes). Service providers are responsible for providing tax invoices to buyers on request.
13. The service provider pays us a fixed percentage of the price as a ‘platform fee’. We use revenue earned from the site to operate and maintain the site and the platform facilities it provides to users.
Enabling safe transactions – dispute resolution process
14. We offer a dispute resolution process for members. This is a benefit of membership. You agree to use the dispute resolution process to resolve any disputes. You can raise a dispute at any time up to seven days after job completion. We will investigate each dispute, make any decision and take any action to implement our decision (such as making payments or part-payments and releasing content) at our sole discretion.
15. Buyers use the seven day period after job completion to make sure that they receive all the final deliverables, that is, all content promised under the services agreement (‘materials’). It is the buyer’s responsibility to make sure that they have received materials before the job is closed as a dispute cannot be raised after that time.
16. If a dispute is raised by either of you at any time before the job is closed we will continue to hold the payment until the dispute resolution process has come to an end. We will then allocate payment depending on the outcome of the dispute.
17. You can only use the dispute resolution process for services provided and communications made solely via the site. A dispute you raise may be ineligible for the dispute resolution process if it involves services provided, or communications made, outside the site. If you do not provide us with information or answers to our questions, or otherwise participate properly in the dispute resolution process, we have the right to resolve the dispute in favour of the other member.
18. When a dispute is resolved in the buyer’s favour the repayment will be made via the original payment method.
19. You release us from any liability relating to a dispute and the outcome of any dispute resolution process.
Members’ promises to other members and to Smoothy
20. When you’re using the site you make some promises to us, as well as to the other members that you deal with. You promise that:
- information you give to us is true, accurate and complete;
- you will keep your account information up-to-date (including a current email address);
- you are 18 years or over;
your membership details must be kept confidential (including your password);
- if you realise there’s any unauthorized use of your password or any breach of security you need to let us know immediately;
- you will be responsible for any access and activity on the site made as a result of using your membership details;
- you will only make representations on or via the site that are accurate and not misleading or untrue;
- you are not located in a sanctioned country and are not on a sanctioned persons list;
- you will not purchase items on Smoothy Studio using funds sourced from a sanctioned country;
- you must not use a virtual private network or VPN or any other means to avoid compliance with these terms and conditions, or for any fraudulent or illegal reasons;
- you will be reasonable and polite in your dealings with us and other members;
- you will not breach any of the terms of the user terms, any services agreements and the service provider additional terms;
- you will participate fully in the dispute resolution process; and
- you will follow any other Smoothy or Smoothy Studio policies or rules that apply to the site, such as community and conduct rules.
What we own (our intellectual property)
21. We own all the content that we have put on our site (unless otherwise stated). This includes the design, compilation and look and feel of the site, all copyright, trademarks, designs and other intellectual property on the site. We claim ownership of all the trademarks, logos, service marks and trade names that we display on the site (unless otherwise stated).
22. You will not copy, distribute, modify or make derivative works of any of our content or use any of our intellectual property in any way not expressly stated in these user terms (or otherwise allowed at law).
What you own (your intellectual property)
23. You promise that you own, or have the appropriate rights to use, everything that you submit on or via the site. This includes everything that you post on the site and send to, or make available to, other members and to us including all files, assets, communications and materials (‘your content’). You promise that the use of your content on or via our site won’t infringe anyone else’s rights and that no further permissions from others are required regarding your content.
24. You give us a license to publish, copy, and communicate your content on or via the site, for the purposes of operating the site and providing the platform facilities to you. Your content will only be made publicly available if you post it on public parts of the site. Communications and other content sent between buyers and service providers are not viewable by other users.
25. Service providers will retain rights in their pre-existing materials provided to buyers, but grant buyers a broad license to these materials. Service providers will assign to buyers all materials created specifically under the agreed brief. This is set out in the services agreement.
26. You confirm that we may publish and copy any reviews and public comments you make on any websites run by Smoothy for the purpose of cross-promoting the site.
Things you can’t do
27. You agree that you will not:
- use a false email address, impersonate others, or misrepresent your affiliation with others;
- attempt to gain unauthorised access to computer systems or content through the site;
- attempt to contact other members through the site or use any information gained from the site with the intention to make a private arrangement that would otherwise be made using the site;
- make your contact details public on the site or in any communications via the site. Contact details include your email address, street address, Skype name and phone number (but not social network handles);
- enter any arrangements that are not consistent with these user terms or the services agreement;
- engage in automatic gathering of information from or through the site (such as “database scraping” or harvesting of e-mail addresses);
- attempt to interrupt or alter the site’s operation in any way (for example through sending mass unsolicited messages, “flooding” servers, or introducing a virus, time bomb, trojan horse, worm, cancelbot or other computer routine);
- use the site or any of its content in a way that violates applicable law, that violates the intellectual property or other rights of us or others, or that is fraudulent, obscene, unprofessional, offensive, misleading or defamatory;
- disclose information about any other member that you obtain via the site that is reasonably regarded as confidential or marked as confidential; or
- modify, reproduce, display, publish, distribute, copy, transmit, perform, license, create derivative works from, transfer, or sell or re-sell any information, software, products, or services obtained from or through the site other than in accordance with the rights provided to you under these user terms or a services agreement.
29. The site will usually be available 24 hours a day, seven days a week. Sometimes we’ll need to interrupt or suspend your access to the site or the provision of the site’s platform facilities for maintenance, technical or other reasons. We’ll always try to give you notice if possible and try to keep such interruptions to a minimum. We do not have control over the availability of services or service providers.
30. Our indemnity to you.
We provide the site, not the services. We are liable and solely responsible for:
- our use of the site;
- the services, message, content, software or other information we send through the site;
- our breach of any intellectual property rights belonging to others;
- our breach of these user terms;
- our breach of the service provider additional terms; and
- our breach of any industry code, regulation or law that applies.
You have no responsibility to us for, and we agree to indemnify you from, all claims, liabilities, costs, expenses (including legal fees) and loss arising in any way from any of the matters set out in this clause.
31. Your indemnity to us.
You are liable and solely responsible for:
- your use of the site;
- any services you buy or provide through the site;
- the services, message, content, information, software or other materials you send through the site;
- your breach of any intellectual property rights belonging to others;
- your breach of these user terms;
- your breach of a services agreement;
- your breach of the service provider additional terms; and
- your breach of any industry code, regulation or law that applies.
We have no responsibility to you or to any another person for all claims, liabilities, costs, expenses (including legal fees) and loss arising in any way from any of the matters set out in this clause (‘claims’) and you agree to indemnify us, our directors, officers, employees and agents from all claims.
We reserve the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defence of such claim.
32. You should carefully assess whether the site is suitable for your needs. Everything on the site provided by us is given on an ‘as is’ basis and without warranties, either express or implied. We do not promise that the content or your access to the site will be uninterrupted or error-free, that any defects will be corrected, or that the site or content are free of viruses or any other harmful components. We make no promises regarding your access to the site, or the results of your access, in terms of correctness, accuracy, timeliness, completeness, reliability or otherwise. We are not liable to you for any loss claimed or incurred by you or others as a result of any lack of availability.
33. We accept service providers after we have considered examples of their previous work. But it is up to a buyer to make sure that service providers and their services meet the buyer’s needs. We don’t formally endorse service providers and their services. We don’t have control over anyone else’s business, representations, or the quality of their services or content, so we are not liable to you for anything provided by other members. If you are unhappy with a buyer, a service provider or a service, please use the dispute resolution process. As we’re not providing the services we don’t provide any type of insurance.
Warranties and refunds
34. In some jurisdictions there may be consumer or fair trading laws that apply and that may give you rights that we cannot exclude, restrict or modify (‘non-excludable law’). We do not exclude or modify any non-excludable law. Except as provided in a non-excludable law, we are bound only by the express promises made in these user terms and we are not bound by implied terms.
35. Except as provided in a non-excludable law, we are not liable for indirect, incidental, special or consequential damages, loss or revenue or loss of profits which result or arise from your using or accessing the site, or any inability to use or access the site. To the fullest extent permitted by law, our liability for breach of any implied warranty or condition which cannot be excluded is limited to supplying our site’s services again.
36. If a buyer wants a refund on a job that has been started but is not yet closed, the buyer needs to raise a dispute so that we can assess the claim though our dispute resolution process.
Once a job is closed, payment will not be refunded except as required under non-excludable law. To request a refund on a closed job a buyer can make a claim to Support. We will assess claims on their merits, with regard to the digital nature of the materials and services as well as communications between buyer and service provider before closure. If the job has been closed and the provider is no longer on the site or cannot be contacted by the buyer, this is not a ground to ask for a refund.
There is no obligation to provide a refund for reasons which include if the buyer:
- has changed their mind about the services;
- bought the services by mistake;
- does not have sufficient expertise to use the materials (unless the services did not meet the requirements of the brief); or
- asks for goodwill.
When dispute resolution does not apply
40. You acknowledge that the dispute resolution process is not a legal process and that we do not, and cannot, provide legal advice. Agreeing to use the dispute resolution process does not take away your own rights and you can take your own legal advice at any time.
41. Although we can’t force you to accept the decisions we make, and you retain all your legal rights, we reserve the right to suspend or cancel membership of members that do not use this process fairly in our view.
42. We want you to take advantage of the dispute resolution process and recommend that you use it before trying other ways to resolve issues using others. If a buyer issues a charge back through a payment provider, we can’t start the dispute resolution process, or make a payment to either buyer or service provider, until that charge back process has been finalized.
43. We control and operate Smoothy Studio from our offices in Australia. The laws of Victoria, Australia govern these user terms, and you submit to the jurisdiction of the courts there. Any notice you provide to us must be emailed to us.
44. These user terms will apply at all times that you access the site; they will end when you are no longer a member of the site and no longer access the site.
45. Clauses 29, 31, 32, 33, 35, 36, 37, 43, 44 and 45 continue to be in effect when these user terms end because they contain our continuing promises or obligations.
46. We do not provide any legal advice on this site. Please consider for yourself the suitability of these user terms, the services agreement between buyers and service providers and, if you are a service provider, the service provider additional terms.