Terms of Service
1 . Definitions
Acceptance Test means a demonstration by us to you that the Website complies with the Functional Specifications.
Brand (or Branding) means the creation of elements associated with a brand, including but not limited to the name, logo, design and other symbolic elements such as colour and visuals which combine to create a distinctive identity.
Collateral means the collection of media, images and other material that supports the Brand and Design of the Brand.
Commencement Date means the date so specified in the schedule to the Proposal.
Confidential Information includes information which:
(a) is disclosed to you in connection with this Contract at any time;
(b) is prepared or produced under or in connection with this Contract at any time;
(c) relates to our business, assets or affairs; or
(d) relates to the subject matter of, the terms of and/or any transactions contemplated by this Contract, whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever you receive that information.
Contract means this document, including the Proposal and the Terms.
Design means the creation of symbols, images, colour and text to form a visual representation of a Brand through ideas and messages.
Development Services means the development and testing of the Website.
Development Stages means the stages specified in the Proposal under the heading “Services” for completion of the Website and include design, brand, logo and website elements as appropriate.
Domain means a presence on the internet, such as a web page or a Website.
Functionality means the functionality of your Website.
(a) the same as in the GST Law;
(b) any other goods and services tax, or any tax applying to this agreement in a similar way; and
(c) any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.
GST Law means the same as “GST law” in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Host, Hosting (or Website Hosting) means the company on whose system the Website physically resides.
Intellectual Property Rights means copyright, trade mark, design, patent, semiconductor or circuit layout rights relevant to, inter alia:
(a) textual, graphical, audio and other material displayed on the Website;
(b) screens, organisation, patents and operation or control features;
(c) all software associated with the Website; and
Internet means the worldwide connection of computer networks providing for the transmittal of electronic mail, online information, information retrieval and file transfer protocol.
Liability means any expense, cost, liability, loss, damage, claim, demand or proceeding (whether under statute, contract, equity, tort, indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent.
Link means a hypertext link connecting the Website to other websites.
Moral Right means:
(a) a right of attribution of authorship;
(b) a right not to have authorship falsely attributed;
(c) a right of integrity of authorship; or
(d) a right of a similar nature,
which is conferred by statute, and which exists or comes to exist anywhere in the world in a deliverable form comprised within this agreement.
Presentation means a meeting, either face to face or via Zoom or other video conference to discuss the Development States with you.
Price means the fees and other charges payable by the Customer to the Supplier for the Services in Australian Dollars ($AUS) , as specified in the Proposal and extends to any third party software fees, plugins or other disbursements or materials purchased on behalf of a Client and billed to them.
Refinement (or Refinements) means a minor change to the Services for completion during the Development Stages.
Search engine means a Website which contains a directors of websites on the Internet enabling users to find Websites by subject matter classification.
Services means the Services and Scope set out in the Proposal.
Third Party Materials means textual, graphical, audio or like materials, together with any software, which is incorporated into the Website and/ or designed elements/ Collateral.
User means a person other than the parties who seeks access to the Website over the Internet.
Website means the location accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical user interface.
World Wide Web means a method of representing and obtaining graphical data and linking data items used by Internet users.
- This Contract takes effect on and from the date on which this Contract is accepted in accordance with its terms (Effective Date), with Services to commence on the Commencement Date as set out in the Proposal.
- You may not make any cancellations after the Effective Date, other than in accordance with these Terms. Subject to the terms of this Contract, we will proceed with the provision of the Services within a reasonable time after the Effective Date, and having reference to the Commencement Date.
3. Our obligations
- In consideration of you paying us the Price, we will provide the Services in accordance with this Proposal and these Terms, whether ourselves or through our employees, consultants, suppliers, subcontractors or agents (Personnel).
- If this Contract expresses a time within which the Services are to be provided, you acknowledge and agree that any such time is an estimate only and creates no obligation on us to provide the Services by that time. Further, you acknowledge and agree that any such time estimate is subject to you fulfilling your obligations in accordance with clause 4 of this Contract. If you do not fulfill your obligations to provide us with all materials and instructions to complete the Services we reserve the right to charge a re-scheduling fee, postpone or terminate this Contract at our discretion.
- While we will communicate with you via email and other electronic methods, we shall not be liable if an email or other electronic message is intercepted and your personal or sensitive information is stolen by a third party;
- You may request a change to the Services, or additional Services not covered by the Scope (also known as scope creep), by providing written notice to us (Variation Request). We will not be obliged to comply with the Variation Request until:
- we have confirmed our acceptance of the Variation Request in writing, including any required variation to the Price to perform the Variation Request (Price Variation);
- the Price has been adjusted to reflect the Price Variation; and
- you have paid us the Price (as adjusted by the Price Variation) in accordance with the Payment Terms.
- The Scope for the Services will contain parameters around amendments, number of presentations, refinements and the like. Note that our refinements are limited to 2 x elements per Presentation and 2 x each element of the design. For example, there are 2 x refinements for a logo and 2 x refinements for a business card and so on with regard to all other Design elements.
- If there is a problem with the Services which is caused by a breach of this Contract by us (Omission), and you have notified us of the Omission within 24 hours after completion of the Services, then, to the maximum extent permitted by law, our Liability arising from, or in connection with, the Omission will be limited to us remedying the Omission, or, at our absolute discretion, refunding you that portion of the Price paid by you with respect to the Omission.
- Nothing in this clause will affect the Supplier’s right to exercise its own judgment and utilise its creative skills as it considers most appropriate in order to develop the Website in accordance with the Development Specifications or Design.
4. Your obligations
Under these Terms you have the following responsibilities:
- you must comply with this Contract and all of our reasonable requests or requirements.
- You must provide your feedback and refinement requests pursuant to clause 3(e) within 10 business days after each Presentation (Feedback). If no such Feedback is received we will assume that you approve of all elements of the Design, Collateral and/ or Website are approved and proceed to the next Development Stage on that basis.
- you must obtain, and provide to us all:
- all things reasonably necessary to enable us to provide the Services, including disclosure of all information we require to complete the Services
- you must provide of all logos, photographs, designs, graphic, copywriting and related materials to be incorporated into the Website or your Design Collateral and Brand (unless we are completing these for you as part of the Contract); and
- you must provide all other information, ideas or suggestions which are to be expressly considered by us in creating your Website, branding or Design Collateral.
- You must pay us the Price, all disbursements (including travel and accommodation costs and third party costs incurred by us in the provision of the Services), and any other amounts payable to us under this Contract in accordance with the Payment Terms.
- If any payment has not been made in accordance with the Payment Terms, we may (at our absolute discretion) immediately cease providing the Services and/or charge you interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 8% per annum, calculated daily and compounding monthly.
- Words defined in the GST Law have the same meaning in this clause, unless the context makes it clear that a different meaning is intended.
- In addition to paying the Charges and any other amount payable or in connection with this agreement (which is exclusive of GST), the Customer will:
- pay to the Supplier an amount equal to any GST payable from any supply by the Supplier in respect of which the Charges or any other amount is payable under this agreement; and
- make such payment either on the date when the Charges are due or within three (3) days after the Customer is issued with a tax invoice, whichever is the later.
7. Website Development , Search Engine Listings and Design
- With regard to Website Development:
- Installation of your Website to the Internet is limited to the uploading of all necessary files to the Hosting site and testing functionality of the Website.
- The Website is provided to you (and to be accepted by you) as a fully functioning and completed work.
- We will not be responsible for future support and maintenance with respect to your Website unless it is stated in your Scope or your invoice accompanying our Contract.
- If you require further Website Support, this will form a separate Scope and Contract and we will provide a proposal for any such request separate to this Contract. Note that we provide no guarantees of our availability for or capacity to deliver future support, unless it is included in your Scope and this Contract.
- We will provide you with regular updates on the progress of the Website during the timeline for website build.
- We will place a clickable Website link (linkable address) on the bottom of the website as the developer on the bottom of your Website as part of our Terms. If you wish to have this link removed, please enquire as to the fee to have it removed. Note that we have a specific website developer licence and if the licence key is removed or cancelled, your website will eventually stop working. If you remove the link without our knowledge we have no liability for the failure or malfunction of your website.
- We reserve the right to maintain control of your Website Contact Management System (CMS) until the Price is paid in full. We will not assign ownership to you until this is the case.
- We do not offer Website maintenance and for clarity, please note it is NOT included in this Contract. A professional Website Hosting package which also includes a maintenance package is not included, however, we may refer you to our recommendations in this regard at our discretion and without liability.
- Upon completion of Website installation (Installation), we will conduct the Acceptance Tests to make sure the Website if functional. Acceptance Tests are not carried out live and we subsequently provide you with a 30 days period after launch for you to report any problems or issues with the Website.
- With regard to Design, Branding and Collateral:
- The ownership of Design, Brand and Collateral are set out in clause 8, Intellectual Property Rights.
- No open or original Design files will be submitted to you, unless a further agreement is reached between the parties.
- Any mock or draft designs supplied to you by us remain our property and we reserve the right to use them in our portfolio and/ or marketing of any type. This includes Designs or Branding that you choose not to use.
- We reserve the right to use any mock ups that have not been used by you on our website, on social media, in any type of marketing or in our portfolio entirely at our discretion.
- You remain responsible for proofing artwork, web designs, copywriting and all other material we create for you before publishing. You acknowledge and agree that by virtue of proofing all material before it goes to print or is used in any way by you, that you have that sole responsibility and we will not be held liable for any errors after the proofing has taken place.
- With regard to Search Engine listings, we will not undertake registration of your Website with Search Engines unless this is expressly part of the Scope of Services. If we do undertake registration of your Website with Search Engines as part of our Scope of Services, you acknowledge and agree that we cannot guarantee your listings will appear in the Search Engine or at the top of the Search Engine (or a number of Search Engines), because we cannot control the way that third party Search Engines operate. If you require it, we can outsource specific Search Engine Optimisation (SEO) services at an extra accost to you to a specialist in this area.
8 Intellectual Property Rights
- Subject to clause 8(2) and payment of the Price, Intellectual Property Rights in the Website and/ or the Design Collateral will vest in you. Until such time as the Price is paid in full, we will retain ownership and full copyright and moral rights in any Design, Brand or Collateral prepared for you.
- Regardless of clause 8(1), you acknowledge that there is no assignment of Intellectual Property Rights in:
- any pre-existing material (including but not limited to the Supplier’s software, documentation, templates and data) which is incorporated into or which has been used in the course of developing the Website; or
- the user interface of the Website.
- You warrant that:
- any material supplied to us for use on your Website or in your branding or graphic design is provided with all necessary permission, authorisations, licenses and consents in relation to its use and incorporation into the Website and your other design materials.
- you will be responsible for payment of all royalties or licence fees associated with the use of a third party’s intellectual property rights in connection with the Website or your graphic design material.
- You will in fully indemnify us against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party against us alleging that your use of the Website and such materials within your Website and Design Collateral infringes any such Intellectual Property Rights of any person, noting the permissions set out above.
- Without limiting the generality of the previously mentioned subclauses, if it is determined by any independent tribunal of fact or law or if it is agreed between the parties to the dispute that an infringement of Intellectual Property Rights has occurred, the Supplier will at its sole expense:
- modify the Website and/ or Design Collateral in order to avoid continuing infringement;
- procure for the Customer the right to continue the use or possession of the infringing Web Site and/ or Design Collateral; or
- if the solutions in either of the preceding paragraphs cannot be achieved, remove the software dismantle and discontinue the Website and/ or Design Collateral.
- With respect to any new Intellectual property (IP) created following completion of the services, such as a new logo or design for you, this will be created as “work for hire” or “work made for hire” and we will not claim or register any IP work in relation to the Services. Upon payment of the Price in full and completion of your file with us, we will assign the IP, rights and interest in the Services to you.
9. Release for website and social media use
- By signing this Contract, you agree to permit your logo (even if we did not design it) and pictures of your website and/or graphic designs or brand and logo design in client pitches or displayed on our website and/ or social media pages, other marketing purposes, for our portfolio of completed work and any other use at our reasonable discretion.
- If you use our completed work (ie Website or graphic design, brand or logo) in your social media pages, you agree to provide credit to us by tagging us in instagram, Facebook, LinkedIn or other relevant social media platform.
10. Limitations of Liability and warranties
Despite anything to the contrary, to the maximum extent permitted by law:
- you warrant that you have not relied upon any warranty, representation, statement, offer or documentation made or provided by or on behalf of us, whether before or after the Effective Date;
- you agree that this Contract excludes all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in this Contract;
- you agree that our Services do not guarantee that you will be successful in increasing your earnings, improving the reach of sales of your brand or business or attracting more clients;
- our maximum aggregate Liability arising from or in connection with this Contract will be limited to, and will not exceed, the portion of the Price paid by you to us for the Services the subject of the relevant claim;
- we will have no Liability, and you release and discharge us from all Liability, arising from or in connection with any:
- event or circumstance beyond our reasonable control;
- acts or omissions of you or your Personnel;
- defect, error, omission or lack of suitability or benefit (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Services; and/or
- loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data; and
- you will indemnify us for and against all Liability arising from or in connection with any wrongful act or omission by you or your Personnel.
11. Implied terms and consumer guarantees
- Subject to clause 11(b), any condition or warranty, which would otherwise be implied in this agreement, is excluded.
- Liability of the Supplier for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by sections 51 to 53 of the Australian Consumer Law) is limited:
- in the case of goods, to any one of the following as determined by the Supplier:
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired; and
- in the case of services, to any one of the following as determined by the Supplier:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
- in the case of goods, to any one of the following as determined by the Supplier:
This Contract will terminate upon written notice by:
- either party, if mutually agreed in writing between the parties;
- us, if you breach this Contract and that breach has not been remedied within five working days of being notified by us; or
- you, if we breach a material term of this Contract and that breach has not been remedied or overcome within 15 working days of being notified by you.
On termination of this Contract, you will:
- where this Contract is terminated under clauses 12(b) or 12(c), immediately pay to us the Price and all of our additional costs resulting from the termination;
- where this Contract is terminated under clause 12(a), immediately pay to us the Price for the Services performed up to the date of termination (and all other amounts due and payable to us under this Contract);
- immediately return to us all property, including Confidential Information, belonging to us or our Personnel; and
- not use any intellectual property rights (including copyright) belonging to us or our Personnel.
- Termination of this Contract will not affect any rights or liabilities which a party has accrued under it.
Our services do not guarantee or assure increase brand visibility, additional earnings for your business. While having a new Website and/ or a brand designed by a graphic designer may assist in this regard, the responsibility to implement and market these designs and brand elements in accordance with your marketing and/ or business strategy rests with you.
- A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information.
- A party will not be in breach of clause 13(a) in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
- Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this agreement, do not make public or disclose the other party’s Confidential Information.
- Despite any other provision of this clause, a party may disclose the terms of this agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
- This clause will survive the termination of this agreement.
Any notice given under this Contract must be in writing addressed to the relevant address in the Proposal. Any notice may be sent by standard post or email, and service is deemed to have taken place on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
16 Relationship of parties
This Contract is not intended to create a partnership, joint venture or agency relationship between the parties.
Neither party will assign, whether in whole or part, the benefit of this agreement or any rights or obligations under this agreement, without the prior written consent of the other party.
18 Entire agreement
This Contract contains the entire understanding and agreement between the parties in respect of its subject matter.
This agreement will be governed by and construed in accordance with the laws for the time being in force in Queensland and the parties agree to submit to the jurisdiction of the courts and tribunals of that State.
No forbearance, delay or indulgence by a party in enforcing the provisions of this agreement will prejudice or restrict the rights of that party, nor will any waiver of those rights operate as a waiver of any subsequent breach.
22 Variation and change control
No variation of this agreement will be effective unless in writing and signed by both parties.
Should any part of this agreement be or become invalid, that part will be severed from this agreement. Such invalidity will not affect the validity of the remaining provisions of the agreement.
A party may not commence court proceedings relating to any dispute arising from, or in connection with, this Contract (Dispute) without first meeting with a senior representative of the other party to seek (in good faith) to resolve the Dispute (unless that party is seeking urgent interlocutory relief, or the Dispute relates to compliance with this clause).
Clauses 5, 6, 7(3), 8, 9, 10, 11, 13 & 14 survive the termination of this Contract.