The parties to this Agreement are Jacquelyn Purton Jones trading as Wave Digital Design (ABN 42 154 513 740) of 40 Mirreen Drive, Tugun, QLD, 4224 (“WDD”, “us”, “we”) and the client set out in Item 1 of the Client Particulars (“Client”, “you”).
2.1 We will provide the Services to you in accordance with this Agreement, and subject to any limitations set out in the Client Particulars, with the degree of skill, care and diligence expected of a professional providing services of a similar kind.
2.2 We will use reasonable efforts to complete the Services and to provide the Deliverables to you within the agreed time frames, as set out in the Client Particulars or as otherwise agreed in writing or varied pursuant to this Agreement.
2.3 The Website will go live on your desired hosting platform and you or a representative nominated by you will be appointed as the owner and web admin of the Website once full and final payment of the Project Fees has been provided to us in cleared funds, subject to the balance of this Agreement.
2.4 You acknowledge and agree that, whilst we work to SEO best practices known at the time when completing our services, no other search engine optimisation services are provided as part of the Services, Website Maintenance Services or Hosting Services, and we do not guarantee any specific position in search engine results for the Website.
2.5 Unless we have agreed to provide Hosting Services, hosting for the Website is not included in the Services and you will be responsible for arranging hosting for the Website.
2.6 Unless we have agreed to provide Website Maintenance Services, no ongoing site maintenance or support is included in the Services following Handover.
2.7 Unless otherwise expressly stated in the Client Particulars, no training on the management, maintenance and update of the Website is provided as part of the Services, other than an owner’s manual and pre-recorded training videos provided on Handover.
2.8 Included as part of the Project Fees, we will provide you with up to two (2) rounds of changes to the built Website before the Website goes live.
2.9 We agree to attend to the revisions required to reflect your feedback within seven (7) days of receipt of your complete feedback, save for where we require further information or instructions from you to attend to those revisions, which you agree to provide to us within two (2) Business Days of our request.
2.10 Any major changes to the overall concept design requested by you after the Website build has begun will incur additional fees for the time spent by us to attend to your requests, which will be charged at our Hourly Rate (with a minimum of two (2) hours applicable).
2.11 Unless otherwise expressly stated in the Client Particulars, image sourcing, branding, and copywriting are not included in the Services.
2.12 We test the Website in current versions of major desktop browsers. We also test on mobile browsers on the latest models of an iPhone and Android phone.
2.13 Subject to you meeting your obligations under this Agreement and any variation required due to Unexpected Delays, we agree to deliver the Services in accordance with the timeframe / schedule set out in Item 8 of the Client Particulars.
2.14 You agree to test all pages and backlinks (on both desktop and mobile devices) prior to Handover. You agree to respond to our request for final approval of the Website for the purpose of us attending to Handover within three (3) Business Days of our request.
2.15 We agree to attend to Handover within three (3) Business Days of your final approval of the Website.
2.16 We may utilise any of our employees or third party subcontractors to undertake any part of the Services.
3.1 You are responsible for:
a) ensuring that all of your communication to us in relation to the Project, is via email;
b) unless otherwise stated in the Client Particulars, providing us with all copy, imagery, terms and conditions for display on the Website, a privacy policy, and style guides prior to the commencement of the build of the Website, with all copy to be fully edited and proofed in a word or google document;
c) purchasing and directly paying for any initial or ongoing fees associated with your Domain Name;
d) providing us with accurate and complete responses to our questions, as well as providing us with feedback when we ask for it, within 3 Business Days of our request, which is to be provided in one communication in complete response to our request, with all feedback provided as requested, and not through various communications;
e) providing us with accurate and complete information in a timely manner to enable us to perform the Services (and / or the Website Maintenance Services, or Hosting Services, as the case may be) and provide you with the Deliverables;
f) providing us with timely access to and control of your digital assets that we require access to in order to complete the Services (and / or the Website Maintenance Services or Hosting Services, as the case may be);
g) providing us with all of the content that we request to enable us to perform the Services (and / or the Website Maintenance Services or Hosting Services, as the case may be); and
h) making timely decisions, within 3 Business Days of our request.
3.2 You acknowledge that our ability to perform the Services (and / or the Website Maintenance Services or Hosting Services, as the case may be) and to provide you with the Deliverables in accordance with the terms of this Agreement depends on you meeting your responsibilities under this Agreement and instructing us or responding to our requests in a timely and effective manner.
3.3 Your logos are to be provided to us in vector format and images are to be provided to us in PNG or JPG format.
3.4 Following Handover, unless otherwise stated, you are responsible for all aspects of the Website, including but not limited to continuity of the hosting (unless we have expressly agreed to provide you with Hosting Services) and Domain Name registration, updates to core code, php versions, themes, plugins, and all site related content.
4.1 If you request that we provide you with any additional services or deliverables outside the Scope, or to incur additional expenses, we reserve the right to refuse your change request.
4.2 Any variation to the Scope must be made in writing and additional fees will be payable by you. We will advise you of such additional fees as soon as possible and may require payment in advance to secure payment of the additional services.
4.3 Unless otherwise agreed in writing, and without limitation to any other clause in this Agreement, where the following occurs, additional fees will be charged at our Hourly Rate (with a minimum of two hours charged at the Hourly Rate) and will be added to the Fees:
a) you request additional pages, changes in design, or other additions to the Website after the build has begun;
b) you request changes after the Website has gone live¬¬;
c) you have worked with a previous developer and we are required to liaise with them to gain control of a domain or hosting;
d) we are required to consolidate multiple communications of feedback rather than all feedback being provided in one communication as required under this Agreement;
e) you request us to make any additional revisions than that specified as included in the Fee, to any copy, logos, or other creative elements expressly set out in the Client Particulars as included in the Services, or which you request us to create as part of any variation to the Scope.
4.4 Unless otherwise agreed in writing, if you request any of the following in relation to the Project at any time, and we agree to your request, additional fees will be charged at our Hourly Rate (with a minimum of two hours charged at the Hourly Rate) and will be added to the Fees:
a) any additional services;
b) any additional deliverables;
c) further revisions above and beyond the two rounds of revisions before the Website goes live included in the Fees; or
d) additional meetings;
than that expressly included in the Scope.
4.5 We are not responsible to you or any third party for any failure in providing the Services (and / or the Website Maintenance Services or Hosting Services, as the case may be) or the Deliverables caused by an Unexpected Delay. We will notify you as soon as is practicable if an Unexpected Delay arises that may affect the Services (and / or the Website Maintenance Services or Hosting Services, as the case may be) and the cause of the Unexpected Delay, if known.
4.6 You acknowledge that this Agreement will be varied to include any change to the Scope (including adding additional services or deliverables), the Fees or the timeframes for completion of the Services and delivery of the Deliverables (as varied to include any additional services or deliverables) if any Unexpected Delay reasonably requires it.
4.7 If you require us to undertake any of the Services or provide you with any of the Deliverables in a shorter timeframe than we have otherwise proposed, and we agree to this request, that urgent work will be charged at our Urgent Hourly Rate (with a minimum of two hours charged at the Urgent Hourly Rate) and the Fees will be varied accordingly.
4.8 You warrant to us that you have the right to use the Domain Name and you authorise us to connect the Website to the Domain Name.
5.1 You agree to pay to us the Fees in accordance with this Agreement.
5.2 Unless otherwise set out in the Client Particulars, the Project Fees for the Services associated with the design and build of the Website will be as follows:
a) A Deposit which is payable prior to commencement of the Services. We will provide you with an initial invoice setting out the Deposit and its due date for payment, which will be within seven days of the date of invoice. We will not commence the Services until the Deposit has been paid.
b) An interim payment of the balance of the Fees for the Services may be payable if stated in Item 5 of the Client Particulars. You agree to pay such payment on its due date for payment. We may suspend performance of the Services if you fail to make such payment by the due date for payment until you have attended to the payment and we are not liable for any loss, cost or expense that you incur as a result of the suspension.
c) The balance of the Project Fees for the Services will be payable prior to Handover. We will not attend to Handover until the full balance of the Fees are paid.
5.3 Fees payable for Website Maintenance Services and / or Hosting Services (if any) are payable monthly in advance from when they commence however:
a) if, and only if, we are providing both Website Maintenance Services and Hosting Services, we agree to provide you with the first two (2) months of the Website Maintenance Services and Hosting Services without any charge to you, provided that you engage us for both the Website Maintenance Services and Hosting Services for at least a twelve (12) month continuous period; and
b) if this Agreement (or the Website Maintenance Services and / or Hosting Services) is terminated (other than due to our material breach of this Agreement) and we have provided you with the Website Maintenance Services and Hosting Services without any charge to you pursuant to clause 5.3(a) of this Agreement, then you agree to pay to us the Fee for the first (2) months of Website Maintenance Services and Hosting Services within seven (7) days of our invoice.
5.4 Once you have paid any amount under this Agreement, it will be non-refundable, except where otherwise required by law.
5.5 We may review the Fees where:
5.6 Unless otherwise stated in Item 5 of the Client Particulars, the Fees exclude GST. You agree to pay any GST imposed on us, now or in the future, in relation to this Agreement. Where GST is payable on any taxable supply made under this Agreement, you agree that the Fee payable for this supply will be increased by an amount equivalent to the GST payable by us in respect of that supply.
5.7 For any ongoing Services following completion of the Website build, including the Website Maintenance Services and / or Hosting Services (if applicable) or other miscellaneous services we may agree to provide to you from time to time following Handover, at our Hourly Rate or Urgent Hourly Rate (as applicable) (“Ongoing Services”), we may review the Fees for those Ongoing Services and our Hourly Rate, our Urgent Hourly Rate and / or the Expenses Threshold from time to time and increase it depending on market conditions and other factors. We will provide you with reasonable notice of any increase to our Fees, Hourly Rate, Urgent Hourly Rate or our Expenses Threshold applicable to the Ongoing Services and will not increase them more than once in any twelve month period.
5.8 If, within 14 days of receiving notice from us that our Hourly Rate, Urgent Hourly Rate or the Expenses Threshold is increasing, (or our Fees for Ongoing Services is increasing), you do not notify us that the increase is unacceptable to you, you agree that you will be deemed to have accepted the increased rates and those rates will then apply from the date advised in our letter to you.
5.9 If you notify us that our increased Hourly Rate, Urgent Hourly Rate and / or Expenses Threshold is unacceptable (or our Fees for Ongoing Services is unacceptable), you or we may terminate this Agreement.
6.1 We may incur Expenses in providing the Services. These may include (but are not limited to):
a) plugins;
b) fonts;
c) stock imagery;
d) photography or videography; and
e) SSL certificates;
6.2 We will charge you at cost for any Expenses we incur in providing the Services (and / or the Website Maintenance Services or Hosting Services, as the case may be) or the Deliverables to you. We will notify you of these Expenses before we incur them if they exceed $75 each (“Expenses Threshold”).
6.3 It may also be necessary for you to pay ongoing Expenses, either to us or to a third party provider, in order to obtain the full benefit of any Services (and / or the Website Maintenance Services or Hosting Services, as the case may be) we provide, or to continue to use any Deliverables that we provide to the same extent over time. We will provide you with cost estimates for any expected ongoing Expenses prior to you incurring the Expense. If you agree to the Expense then you are responsible for attending to any such payments and we are not responsible for any loss that you may suffer as a result of your failure to attend to the payment of any such Expense. If you chose not to agree to such Expense, then we may be unable to provide the Services (and / or the Website Maintenance Services and / or Hosting Services, as the case may be) or the Deliverables to the standard which we would otherwise recommend.
6.4 There may be circumstances where we require you to pay Expenses up front and / or directly to third parties (for example, hosting, stock imagery or software or premium plug ins). We will require you to make payment as directed by us (for example, to log in and enter your credit card details). You agree to make such payments as is reasonably directed by us.
7.1 You agree to pay us the Fees and to pay all agreed Expenses in accordance with this Agreement.
7.2 Our invoices will be sent to you electronically.
7.3 You agree to pay our invoices for the Fees by the due date set out on the invoice (usually 7 days payment terms unless we otherwise agree a shorter timeframe) or as otherwise set out herein.
7.4 Payment of invoices for Fees must be made by direct bank deposit or credit card payment via Stripe into our nominated account. The appropriate bank account details will be printed on our electronic invoice.
7.5 We may, in our absolute discretion, charge interest on any overdue payment due to us at the rate of five percent (5%) each month until payment of any outstanding amount (including any accrued interest on the outstanding amount) has been made in full.
7.6 We will invoice you:
a) for the Deposit upfront;
b) for any interim payments (if applicable) for the Services as set out herein;
c) for the balance of the Project Fees for the Services prior to Handover; and
d) for any Website Maintenance Services and / or Hosting Services for each coming month, at the end of the immediately preceding month.
7.7 If, during the Project, additional fees become payable, due for example to an agreed change in the Scope, we reserve the right to invoice you for those additional fees at the time of agreeing any variation to the Scope rather than at the time of issuing your next scheduled invoice.
7.8 If any invoiced amounts remain outstanding for more than thirty (30) days, we may refer the matter to a debt collection agency or solicitor. In this case you agree to pay any costs we incur or become liable to pay for the collection of such due but unpaid amounts, including but not limited to debt collection fees, charges and commissions and legal fees and costs on a full indemnity basis.
7.9 Without limiting any other rights we may have, we are entitled to suspend or terminate the Services (and / or the Website Maintenance Services and / or Hosting Services, as the case may be), in whole or in part, or to retain or withhold any Deliverable if you do not pay our invoices on or before the due date for payment and we are not liable to you in any way for any loss, costs or expense as a result of that suspension or termination.
8.1 We may require reasonable access to your digital assets (such as any pre-existing website or social media profiles and in some cases email) to provide the Services (and / or the Website Maintenance Services and / or Hosting Services, as the case may be). You agree to provide us this access on request
9.1 During the Project, we may provide you with materials which may contain Intellectual Property owned by third parties. You agree to deal with these materials as we direct and not to do anything which may result in an infringement of any third party rights.
9.2 Without limitation, and subject to, clause 9.3 of this Agreement, upon full and final payment of the Project Fees, we:
a) agree to assign to you ownership of the Intellectual Property in the Website we design specifically for you (excluding any templates or other Intellectual Property used which we do not own) as well as the visual elements that we create specifically for it as set out in the Client Particulars (if any) (“Original Designs”); and
b) agree to provide you with the finished files associated with the Original Designs.
9.3 We may from time to time, at our own discretion, include on the Website, graphics and other designs which we have created but which is outside of the Scope (“Retained Designs”). You agree that where we include such Retained Designs on the Website, unless otherwise agreed in writing, we will retain the Intellectual Property in the Retained Designs and provide you with a royalty-free, non-exclusive, licence to use those Retained Designs on the Website. You acknowledge and agree that if you request that we transfer the Intellectual Property in any Retained Designs to you, and we agree to this request, then an additional fee must first be agreed, which will be added to the Fees. You further acknowledge and agree that unless we transfer the Intellectual Property in the Retained Designs to you, we may use those Retained Designs on other websites.
9.4 Where we assign the ownership of the Intellectual Property in the Original Designs to you, you agree to grant to us an irrevocable, royalty-free, non-exclusive, licence to use and reproduce any of the Original Designs for our own marketing purposes worldwide and in perpetuity.
9.5 You irrevocably consent to us using and reproducing your name, business or trading name and logo (if applicable), photograph or likeness, including any trade marks, as well as evidence of services delivered and results achieved (including, but not limited to as stated in email feedback from you and in any reviews you provide of our services in any medium and on any forum), for the sole purpose of promoting our business.
9.6 You agree that we may place Original Designs on our webpage, together with a hyperlink to the Website, as well as on our own social media channels.
9.7 You agree to provide us with a royalty-free, non-exclusive, licence to use the Elements in performance of the Services and creation of the Deliverables.
9.8 You agree to display a small credit on the Website, in the form of a small line of text with a hyperlink to our website positioned at the bottom of each page on the Website attributing us as the designer and builder of the Website.
10.1 You warrant at all times during this Agreement that:
a) you have the full right and title (including applicable rights to all Intellectual Property and suitable releases from individuals depicted) to all elements of text, graphics, photos, videos, designs, trade marks, or other artwork or text you provide to us for the purpose of this Agreement (“Elements”), or that you have received written permission from the rightful owner(s) to use each of the Elements for the purpose it is to be used by you, or by us on your behalf; and
b) you have complied with and/or will comply with all applicable laws and regulations that relate in any way or apply to the Project at your own expense.
10.2 You agree to indemnify us on a full indemnity basis for all loss and damage associated with:
a) any breach of the warranties set out in this clause 10 of this Agreement; or
b) any infringement of any third party’s Intellectual Property rights caused or contributed to by you.
11.1 Each of Us agree to protect and keep confidential any Confidential Information that is given to Us by the other.
11.2 We may disclose your Confidential Information to our own professional advisers, and insurers on a confidential basis.
11.3 We may disclose your Confidential Information to our employees and subcontractors on a confidential basis for the purpose of having them assist WDD with the provision of the Services.
11.4 Either of Us may disclose any Confidential Information to the extent that it is required to be disclosed by law, order of any court, tribunal, authority or regulatory body, rules of any stock exchange or any professional obligations or requirements.
12.1 You acknowledge and agree that third-party platforms or tools which we may use to provide the Services (and / or the Website Maintenance Services and / or Hosting Services, as the case may be), or which the Services (and / or the Website Maintenance Services and / or Hosting Services, as the case may be) are designed to take advantage of, are not controlled or influenced by us and we cannot guarantee their continued availability. Should a critical platform or tool become unavailable for any reason during the course of providing the Services (and / or the Website Maintenance Services and / or Hosting Services, as the case may be), we will discuss a mutually acceptable alternative or termination with you.
12.2 You acknowledge and agree that we are not liable for the actions of hackers, viruses and other problems which may arise when conducting business online. It is your responsibility to back-up the Website and ensure the integrity of your data. You agree that we are not liable for loss of sales, leads or reputation due to any security issues with the Website and you agree to irrevocably release us and hold us harmless from any such claim. It is also your responsibility to store your finished files somewhere safe as we accept no responsibility for storing these for you and providing them to you at a later date.
12.3 Nothing in this Agreement is intended to exclude any right or guarantee to which you are entitled under the Australian Consumer Law. We limit our liability to you for any Loss or causes of action arising in relation to this Agreement (including negligence):
a) to the amount of the Fees paid by you as the date on which the Loss arises; or
b) where our liability cannot otherwise be limited as set out in clause 12.3(a) due to obligations under the Australian Consumer Law, to the fullest extent permissible under section 64A of the Australian Consumer Law; that is, to the supply of the Services again or to pay the cost of having the Services supplied again.
12.4 We will not be liable for any Loss, or failure to provide the Services (and / or the Website Maintenance Services and / or Hosting Services, as the case may be), which is caused by an Unexpected Delay or which arises as a result of us relying on any false, misleading or incomplete information provided by you or third parties at your request.
12.5 You indemnify us and hold us (including our officers, employees, agents, contractors and related bodies corporate) harmless in respect of any and all claims, Loss or damage of any kind whatsoever (including legal costs and disbursements on a full indemnity basis), arising directly or indirectly out of any act or thing done by us in good faith and purportedly pursuant to a right granted to us under this Agreement, and any breach by you of any of the terms of this Agreement.
12.6 Without limitation to the remainder of this clause 12, we will be liable to you only for that proportion of the total Loss that we have caused or to which we have contributed and we will not be liable for any Consequential Loss.
12.7 Provided that such liability does not result from WDD’s breach of this Agreement, to the maximum extent permissible by law, and without any limitation to any other clause of this Agreement, we will at no time be liable for:
a) the maintenance of confidentiality on your behalf of any and all access codes, log in details and passwords;
b) the installation of security mechanisms on the Website and / or on any accounts which integrate with the Website;
c) the failure of computer equipment, software or integration;
d) the unauthorised use of the access codes, log in details and passwords;
e) the failure to achieve any goals through the use the Services (and / or the Website Maintenance Services and / or Hosting Services, as the case may be) or any loss of profits, sales, production, agreement, business opportunity or reputation during or following completion of the Services;
f) any acts or omissions by you or any third party which alters the Website;
g) any and all activities in connection with the improper or unauthorised use of the Website;
h) any variations in third party costs and expenses, such as fluctuations in fees for plug-ins, fonts or any other costs;
i) any loss caused directly or indirectly by any act or omission of any End User, whether that person is authorised to access the Website or is not authorised to access the Website, and whether or not you have knowledge or notice of, authorised or otherwise permitted such act or omission.
13.1 Either of us may terminate this Agreement:
a) immediately if the other suffers an Insolvency Event, is unable to pay all of its debts as and when they become due and payable, suspends payment of such debts or otherwise ceases to carry on business; or
b) immediately if the other commits any material breach of this Agreement that is either incapable of being remedied or is not remedied within 14 days of receipt of a notice requiring the breach to be remedied.
13.2 We may terminate this Agreement by giving you written notice if:
a) you notify us that any increased Fees, Hourly Rate, Urgent Hourly Rate or Expense Threshold in relation to Ongoing Services is unacceptable; or
b) there is a change of circumstances beyond our reasonable control that prevents us from being able to provide the Services (and / or the Website Maintenance Services and / or Hosting Services, as the case may be) or the Deliverables to you.
13.3 If this Agreement is terminated:
a) you agree to pay us the Fees for any work we have done and any Expenses we have incurred up to the date of termination;
b) we will attend to Handover of what we have prepared as at the date of termination; and
c) the termination does not affect any accrued rights of either of us or any provision of this Agreement that continues to apply.
13.4 You expressly agree that if the Project is delayed by you, such that we have not received any requested information from you within 21 days after we have made that request of you, then we may immediately terminate the Project by notice in writing to you and, where we do so;
a) you agree to pay to us the Fees for any work we have done and any Expenses we have incurred up to that date of termination within 7 days of the date of invoice; and
b) if you wish to resume the Project after we have issued you with the notice of termination, and we agree to resume the Project, a new agreement must first be entered into between Us. You acknowledge and agree that a new scope of work, fees, expenses and deliverable dates will need to be agreed with you prior to us agreeing to resume a terminated Project.
13.5 If this Agreement is terminated, the obligations set out in clauses 5.3, 7, 9, 10, 11, 12, 13, 14, 15, 18, 19, 20 and 21 of this Agreement survive termination of this Agreement.
14.1 Each of us agree to use reasonable endeavours to resolve any dispute that arises in connection with this Agreement by mediation before bringing a legal claim or starting legal proceedings against the other.
14.2 Nothing in this Agreement prevents either of us from seeking any urgent relief in relation to our rights under this Agreement.
15.1 We will handle Personal Information in accordance with the Privacy Act and any privacy policy adopted by us from time to time.
15.2 Where you provide us with any Personal Information, you warrant that you have collected the Personal Information in accordance with the Privacy Act, that you are entitled to provide the Personal Information to us and that we may collect, use and disclose the Personal Information for the purpose of providing the Services or the Website Maintenance Services or Hosting Services (as the case may be) to you or as otherwise permitted by this Agreement.
16.1 Website Maintenance Services commence on Handover and continue until otherwise terminated pursuant to clause 13 of this Agreement or on thirty (30) days written notice by either party.
16.2 You acknowledge and agree that the Fees for the Website Maintenance Services are payable on a monthly basis.
16.3 You acknowledge and agree that we are not responsible for making changes to the design of the Website to correct errors caused by you failing to pay ongoing costs for plugins installed by us during the Website design and build process or at your request, or you or any third party making any changes to the Website. You agree that if we agree to provide you with such assistance, then we will charge our Hourly Rate (or our Urgent Hourly Rate as applicable) (with a minimum of two hours charged at our Hourly Rate, or Urgent Hourly Rate as applicable) for doing so.
16.4 You agree that the Website Maintenance Services do not include updating copy, imagery, videography, adding blogs, adding or reformatting pages, or other related content, and is limited only to updating plugins, themes and other software, taking a daily back up and running weekly security checks.
16.5 You acknowledge and agree that we are not liable for failing to attend to any of the Website Maintenance Services due to any of your (or your agents or representatives) acts or omissions which impacts on our ability to provide the Website Maintenance Services as designed and intended (whether manually or automatically), and you agree to release us from any such liability.
17.1 The Hosting Services commence when we attend to the steps required to make the Website live through our hosting and continue until otherwise terminated pursuant to clause 13 of this Agreement or on thirty (30) days written notice by either party.
17.2 You acknowledge and agree that the Fees for the Hosting Services are payable on a monthly basis in advance.
17.3 You acknowledge and agree that if our Hosting Services are terminated, upon the termination date, we will remove the Website from our hosting service, download the Website and provide you with an electronic file of the Website for you to arrange hosting of the Website through another provider. We agree to provide you with the download of the Website prior to removing the Website from our hosting service.
17.4 We are not responsible for any loss, cost, liability or expense you suffer or incur as a result of changing the hosting of the Website, provided that we have complied with this clause 17.3 of this Agreement.
17.5 You agree to provide us with a royalty free, worldwide licence to publish, communicate, broadcast and display the Website through our hosting service for the period during which the Hosting Services continue.
17.6 We may provide the Hosting Services directly or via a third party. Third party services may be subject to agreements as supplied by them, which we agree to make available to you prior to commencing the Hosting Services. By engaging us for Hosting Services, you agree to any third-party agreements relating to the Hosting Services that we provide to you.
17.7 You acknowledge and agree that routine maintenance, service and upgrades may be undertaken in relation to the hosting from time to time, which may result in your Website being temporarily unavailable. Where such actions are within our control, we will endeavour to act on such matters at the most convenient times and provide reasonable notice to you in relation to any known outages.
17.8 You release us from any claim or potential claim for any Loss in relation to outages contemplated herein, or which is outside of our control, and any loss of business/service suffered by you or any third party.
17.9 You expressly acknowledge and agree that we may suspend or terminate the Hosting Services if your Fees for the Hosting Services remain unpaid for more than seven (7) days after their due date for payment.
18.1 Term: The term of this Agreement will commence on the date it is accepted by you and will continue unless or until the Services are fully provided and paid for in full or terminated in accordance with the terms of this Agreement.
18.2 Amendment: Unless otherwise set out in this Agreement, any amendment or variation to this Agreement (such as a change to the Scope) is not effective unless it is in writing and agreed by both parties.
18.3 Assignment: Neither party may assign or otherwise transfer their rights or obligations under this Agreement without the other party’s prior written consent.
18.4 Relationship of parties: Each of Us agree that:
a) WDD is engaged as an independent contractor;
b) neither of Us has the authority to bind the other; and
c) this Agreement is not intended and will not be taken to constitute a partnership, employment, joint venture or fiduciary relationship between Us.
18.5 Entire agreement: This Agreement constitutes the entire agreement between Us in relation to the Project, save for in relation to any future agreed amendments. It supersedes all prior communications, negotiations, arrangements and agreements, either oral or written between Us in relation to its subject matter.
18.6 Severance: If anything in this Agreement is unenforceable, illegal or void, it is severed from this Agreement and the rest of the Agreement remains in full force and effect.
18.7 Waiver: A waiver by one of Us of a breach by the other party of any term of this Agreement does not operate as a waiver of another term or a continuing breach by the other of the same or any other term of this Agreement.
18.8 Events beyond control: Neither party will be liable to the other party for any loss caused by any failure to observe the terms and conditions of this Agreement, where such failure is occasioned by causes beyond its reasonable control including, but not limited to, by fire, flood, riot, strike, war, restrictions and prohibitions or any other actions by any government or government authorities, or major injury or illness of key personnel.
18.9 Governing law: The laws of Queensland, Australia governs this Agreement and the parties submit to the exclusive jurisdiction of the courts of Queensland, Australia.
18.10 Notices: A notice or other communication to a party must be in writing and delivered to that party in one of the following ways:
a) delivered personally;
b) posted to their address, when it will be treated as having been received on the second business day after posting; or
c) sent by email to their email address, when it will be treated as received when it enters the recipient’s information system.
18.11 Communication: Each of Us agree that we may communicate with each other electronically and acknowledge that electronic transmissions can be corrupted or intercepted, may not be delivered and may contain viruses. Neither of Us is responsible to the other for any loss suffered in connection with the use of email as a form of communication between Us.
18.12 Disclaimer of warranties: To the extent permitted by law, we disclaim all warranties, either express or implied, in relation to the Services (and / or the Website Maintenance Services and / or Hosting Services, as the case may be) other than any written warranty expressly made in this Agreement.
19.1 Unless otherwise stated in this Agreement:
(a) Agreement means this agreement, including the Client Particulars, the Standard Terms and any variations thereto contemplated herein or agreed in writing from time to time.
(b) Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
(c) Business Day means a day on which banks are open for business in Tugan, Queensland, Australia, other than a Saturday, Sunday or public holiday.
(d) Confidential Information means and includes:
i. the terms of this Agreement;
ii. any information or material which is proprietary to a party or acquired by either of us solely as a result of the Services and / or the Website Maintenance Services and / or Hosting Services; and
iii. any Intellectual Property and methodologies and technologies that:
A. you use in your business, and to which we are exposed in the course of providing the Services and / or Website Maintenance Services and / or Hosting Services;
B. we use to provide the Services and / or the Website Maintenance Services and / or Hosting Services; or
C. any information designated as confidential by either of Us.
iv. but excludes any information that:
A. is disclosed with the other party’s prior written consent;
B. was already known to either of Us before we received it from the other or is independently developed by either of Us;
C. is or becomes publicly available, except by a breach of this Agreement;
D. is disclosed to either of Us by a third party provided that the recipient reasonably believes the third party is legally entitled to disclose such information; or
E. is required to be disclosed as contemplated by clause 11.4 of this Agreement.
(e) Client Particulars means the schedule containing the particulars for this Project at the beginning of this Agreement.
(f) Consequential Loss means any loss or damage which is indirect, consequential, special, punitive, exemplary or incidental, including any loss of profit, revenue, anticipated savings or business opportunity, loss or corruption of data or systems, or damage to goodwill however caused or arising as a result of the Services, the Website Maintenance Services, the Hosting Services, or this Agreement.
(g) Deliverables means the deliverables set out in Item 4 of the Client Particulars, and as may be varied pursuant to the terms of this Agreement.
(h) Deposit means the amount noted as the deposit in Item 5 of the Client Particulars, or if no amount is noted as a Deposit, then an amount equal to 50% of the total Project Fees, as at the commencement of this Agreement.
(i) Domain Name means the domain name stated in Item 2 of the Client Particulars, which will be connected to the Website.
(j) Elements has the meaning given to the term in clause 10.1(a) of this Agreement.
(k) End User means any person who accesses the Website;
(l) Expenses means the expenses set out in Item 6 of the Client Particulars, or as otherwise payable in accordance with the terms of this Agreement.
(m) Expenses Threshold has the meaning given to the term in clause 6.2 of this Agreement.
(n) Fees means the fees set out in Item 5 of the Client Particulars, as may be varied in accordance with the terms of this Agreement.
(o) GST has the meaning given to it under A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(p) Handover means when we handover the login details for the Website to you.
(q) Hosting Services mean the services set out in Item 10 of the Client Particulars (if any).
(r) Hourly Rate means the hourly rate we charge for any additional services or deliverables outside of the Scope, which at the time of entering into this Agreement, is one hundred and eighty dollars ($180) per hour and may be reviewed in accordance with clause 5 of this Agreement.
(s) Insolvency Event means and includes:
i. the making of an arrangement, compromise or composition with, or assignment for the benefit or, one or more creditors of a party;
ii. the appointment of administrators, liquidators, receivers, a bankruptcy trustee or analogous person to, or over, all or part of a party’s business, assets or securities;
iii. an application being made, or a resolution being proposed, which seeks to effect such an appointment other than for a solvent reconstruction; and
iv. the existence of a legislative presumption of insolvency in relation to a party.
(t) Intellectual Property means all intellectual property rights (whether registered or unregistered) throughout the world and includes rights in respect of copyright (including rights in software), patents, trade marks, designs, trade secrets, database rights, rights to goodwill or to sue for passing off, and know-how.
(u) Loss means any losses, liabilities, claims, damages, costs or expenses (including interest where applicable and Consequential Loss), judgments or orders however caused or arising as a result of the Services, the Website Maintenance Services, the Hosting Services, or this Agreement.
(v) Ongoing Services has the meaning given to the term in clause 5.7 of this Agreement.
(w) Original Designs has the meaning given to it in clause 9.2 of this Agreement.
(x) Personal Information has the meaning given to it in the Privacy Act.
(y) Privacy Act means the Privacy Act 1988 (Cth).
(z) Project means the Website design and build the subject of this Agreement and any applicable Website Maintenance Services and / or Hosting Services.
(aa) Project Fees means the Fees incurred and payable prior to Handover, excluding any Fees payable for Hosting Services or Website Maintenance Services which accrue after Handover.
(bb) Retained Designs has the meaning given to the term in clause 9.3 of this Agreement.
(cc) Scope means the scope of Services, Website Maintenance Services and / or Hosting Services (as applicable) that we agree to perform and the Deliverables that we agree to provide to you and any limitations thereto as set out in the Client Particulars, or as otherwise agreed in writing, as part of this Project.
(dd) Services means the services set out in Item 3 of the Client Particulars, and as may be varied pursuant to the terms of this Agreement.
(ee) Standard Terms means these website development standard terms and conditions.
(ff) Urgent Hourly Rate means the hourly rate we charge for any work which you require us to perform urgently, or in a shorter timeframe than otherwise set out in the Client Particulars or advised to you, which at the time of entering into this Agreement is three hundred and fifty dollars ($350) per hour, and may be reviewed in accordance with clause 5 of this Agreement;
(gg) Unexpected Delay means any delay in providing the Services, Website Maintenance Services or Hosting Services (as applicable) or the Deliverables that is caused or contributed to by an act or event (including the non-performance of your obligations or any third party obligations) that is beyond our control or was not reasonably foreseeable by us at the commencement of this Agreement.
(hh) Us means you and WDD.
(ii) Website means the website to be designed and built, or altered in the case of a pre-existing website, as part of the Services
(jj) Website Maintenance Services mean the services set out in Item 9 of the Client Particulars (if any).
20.1 In the interpretation of this Agreement:
a) References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
b) Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;
c) Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement;
d) Grammatical forms of defined words or phrases have corresponding meanings;
e) Parties must perform their obligations on the dates and times fixed by reference to Tugan, Queensland, Australia;
f) Reference to an amount of money is a reference to the amount in Australian dollars;
g) If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next Business Day;
h) References to a party are intended to bind their executors, administrators and permitted transferees;
i) Obligations under this Agreement affecting more than one party bind them jointly and each of them severally; and
j) If there is any inconsistency between the Standard Terms, the Client Particulars and any agreed variation to this Agreement, then the following will prevail to the extent of the inconsistency:
a) any variation agreed in writing after entering into this Agreement, including, but not limited to, a variation to the Scope, Fees, Expenses or agreed deliverable dates; then
b) the Client Particulars; then
c) the Standard Terms.
21.1 You can accept and enter into this Agreement with us by:
a) returning a signed copy of the Agreement to us;
b) informing us in writing that you accept the Agreement; or
c) making a payment after you have received a copy of the Agreement.
Please view our terms here.