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Legal Stuff.

These terms and conditions should always be read in conjunction with any relevant documents including but not limited to Project Proposal (quote), Outline of Services and any invoice sent to you by our team.

 

1.1.1

Agreement means the Project Proposal, Terms and Conditions and any other attached documents.

1.2.1

Project means the scope and purpose of the Client’s identified usage of the work product as described in the Project Proposal.

1.3.1

Services means all services and the work product to be provided to Client by Designer as described and otherwise further defined in the Project Proposal.

1.4.1

Final Deliverables means the final versions of Deliverables provided by Designer and accepted by Client.

1.5.1

Deliverables means the services and work product specified in the Project Proposal to be delivered by Designer to Client.

1.6.1

Client Content means all materials, writing, images or other creative content provided by Client used in preparing or creating the Deliverables.

1.7.1

Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.

1.8.1

Designer Tools means all design tools developed and/or used by Designer in performing the Services, including, but not limited to, pre-existing and newly developed software including source code, Web authoring tools, graphic design tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.

2.1.1

Designer shall perform the services listed in the Scope of Work according to the Work Plan and Timeframe schedule. Such services will be provided at the agreed rate as stated in the Project Proposal.

2.2.1

Timeframe: Timeframe commences upon Designer’s receipt of all Requested Client Content stated in the Outline of Services and Project Proposal or any communicative correspondence, including but not limited to the deposit, content, images and any login credentials required to begin the Project.

2.3.1

Search Engine Optimisation (SEO): The Designer does not guarantee any specific position in search engine results for your website. The Designer agrees to perform essential search engine optimisation for the listing and appearance of Client’s website on search engines.

2.3.2

The Client agrees to not hold the Designer under obligation to perform any further SEO services other than what is expressly stated in the Work Plan, Scope of Work subject to this Agreement.

2.4.1

Backup of Data: The Client is responsible for maintaining their own backups with respect to any Final Deliverables and the Designer will not be liable for restoring any client data or client websites.

2.5.1

Updates of Software: The Designer is not responsible for installing or updating to more recent versions of the Client’s website software including but not limited to Content Management System (CMS) software, plugins, content and security add-ons. Such services are considered as a maintenance service and will be charged at the Designer’s standard hourly rate of SIXTY-FIVE DOLLARS ($65) with a minimum charge of one hour.

2.6.1

Cross Browser Compatibility: The Designer endeavours to ensure that the Final Deliverables created by the Designer are compatible with all current modern web browsers including but not limited to most recent versions of Internet Explorer, Firefox, Google Chrome and Safari.

2.6.2

Third party extensions, where used, may not have the same level of support for all browsers. Where appropriate the Designer will substitute alternative extensions or implement other solutions, on a best effort basis, if and where any incompatibilities may be found.

2.7.1

Domain Name Registration: Should the Designer register a domain on behalf of the Client, the Designer does not guarantee that the Client’s desired domain name will be available but will endeavour to give the Client alternative options based on what the domain names that are available.

2.7.2

All domains registered by the Designer on behalf of the Client will be for a period of TWO (2) years and invoiced to the Client.

2.7.3

If the Client already has a registered domain, the Client understands that they are responsible for the full management and renewal of that domain.

2.7.4

Should the Client choose to use a domain that they already own, the Designer will perform the necessary DNS updates in order to host the Final Deliverables on the Designer’s hosting space.

2.8.1

Transfers: A complete transfer of Client’s Final Deliverables to Client’s preferred Hosting Provider is only available through written notice from the Client or otherwise agreed. The Designer will prepare all Final Deliverables for transfer along with transfer code to be given to alternate Hosting Provider. This service will be billed to the Client at a flat administration fee of TWO HUNDRED FORTY-NINE DOLLARS ($249.00), except where covered by Term and Termination and otherwise expressly stated in this Agreement.

2.8.2

The Designer will not be held responsible for any website accessibility or email interruption issues experienced during the transfer process.

2.8.3

A complete transfer from Client’s alternate Hosting Provider to the Designer’s hosting space will incur a fee of TWO HUNDRED FORTY-NINE DOLLARS ($249.00) and the Designer will not be held responsible for any website accessibility or email interruption issues experienced during the transfer process.

2.8.4

The Client will be held responsible for the preparing of all files and content necessary for the transfer and will not hold the Designer responsible for any loss or damages including but not limited to data, content, client details and business interruption.

2.8.5

In either of the mentioned transfers the Client will be responsible for making copies of all desired emails to be kept as these cannot be transferred between Hosting Providers.

2.8.6

The Client will be held responsible to ensure that Final Deliverables are compatible with their alternate Hosting Provider or in the case that the Client is transferring to the Designer’s hosting space, the Client will be held responsible to ensure, before the transfer takes place, that their content and data are compatible with the Designer’s hosting space.

2.9.1

E-commerce: The Client understands that they are responsible for complying with all relevant laws relating to e-commerce, and, to the full extent permitted by law, will hold harmless, protect, defend and indemnify the Designer and its subcontractors from any claim, penalty, tax, tariff loss or damage arising from the Client’s or its clients’ use of Internet electronic commerce.

2.10.1

Content Management System (CMS): The Designer will transfer access credentials for any respective CMS platform utilised in the development of the Final Deliverables for the Client upon receipt of any final balances and expenses owed to the Designer by the Client.

2.10.2

The Designer grants Client top-level access to any CMS that may have been used in the creating of the Final Deliverables on the understanding that Client takes full responsibility for any alterations or revisions made from that point on and can request support or maintenance service from the Designer at the Designer’s standard hourly rate.

2.11.1

Plug-ins: The Designer installs all necessary plug-ins, if any, onto the Client’s website at a level sufficient for the plug-in to function on the Client’s website.

2.11.2

The Client agrees to not hold the Designer in obligation to perform any further customisation of such plug-ins except for those which are expressly stated in this Agreement and in the Scope of Work agreed to by both parties.

2.12.1

Content Quality: The Designer does not allow any of the following content to be stored on its servers, including but not limited to: (a) Illegal material, including copyrighted works, commercial audio, video, or music files, or any material of any type in violation of any federal, state or local law or regulation anywhere in the world. (b) Adult or any other offensive material, including pornography, erotic images, or otherwise lewd or obscene content of any type. What constitutes “adult material” is entirely at the discretion of the Designer. (c) Warez, including pirated software, ROMS, emulators, phreaking, hacking, password cracking, IP spoofing etc., and material or encrypting of any of the above. This also applies to sites which provide links to or ‘how to’ information about such material.

2.13.1

Content Quantity: The Designer considers the maximum per page content limit to be EIGHT HUNDRED FIFTY (850) words and EIGHT (8) images.

2.14.1

Client Content: Client is responsible for the appropriate preparation of all images and content ready for the Designer to implement into the Final Deliverables. Any further editing, optimising required from the Designer will be decided solely at the Designer’s discretion.

2.14.2

The Designer agrees to inform the Client of any further edits that are required on the Client Content and the Client reserves the right to either request the Designer to follow through with such edits at the Designer’s standard hourly rate or to make the necessary edits themselves to then be resubmitted to the Designer as Client Content.

2.14.3

Any delays caused by such edits or revisions will render the quoted Timeframe at a pause which will again resume once Client Content has been deemed ready for implementation. The Designer will not be held responsible for any inconveniences, disruptions or delays during this period.

2.15.1

Designer Watermark: Unless otherwise agreed all websites will have a link to the Designer’s website as well as the Designer’s small watermark with text similar to ‘Designed by’ placed in the footer area of the website.

2.16.1

Security: The Client understands that while the best efforts are taken by the Designer to implement essential security measures, the Client in no way holds the Designer responsible in the unlikely event of a breach of security (“hack”) or any other kind of malicious activity. In such an event, the Designer can reinstate the Client’s website from a previous backup version, where possible, for a flat fee of TWO HUNDRED FORTY NINE DOLLARS ($249.00).

2.16.2

The Client indemnifies the Designer from any and all responsibility for any loss incurred in such an event including but not limited to data, content, client or clientele details or leads, lost profits and business interruption.

3.1.1

The terms of this Agreement expires TEN (10) BUSINESS days after being submitted to Client. If this Agreement expires, Designer may modify the Agreement and resubmit it to Client.

4.1.1

Fees: Client agrees to pay Designer the fees listed in the Project Proposal, including all taxes.

4.2.1

Expenses: Client will pay Designer expenses, including but not limited to: (a) Incidental and out-of-pocket expenses at cost plus Designers standard markup of TEN PERCENT (10%); (b) Milage reimbursement, other than normal commuting, at FIFTY CENTS ($0.50) per kilometre; (c) Travel expenses, other than normal commuting, but including airfare and rental vehicles, with client approval.

4.3.1

Additional Costs: Pricing in the Project Proposal includes only Designer fees. Any other costs, such as hosting, art licensing or photography, will be billed to Client.

4.4.1

Hosting Final Deliverables: Designer will host the Final Deliverables on Designer’s server and hosting space unless otherwise notified by the Client. Client agrees to pay Designer THREE DOLLARS NINETY-NINE CENTS ($3.99) per month, billed annually.

4.4.2

Due to security reasons, Client will not be given cPanel or other similar backend access to the hosting space or domain name assigned to the Client.

4.4.3

The Designer cannot give guarantee that there will be no hosting interruptions or downtime from the Designer’s hosting supplier. However, in such an unlikely event, the Designer shall endeavour to inform the Client of any scheduled updates or maintenance.

4.4.4

Client may at any time choose to move Final Deliverables to Client’s server but agrees to inform Designer of the intent to move Final Deliverables TEN (10) BUSINESS days before any deadline that the Client may have for such a move to be completed. Upon request to move Final Deliverables to Client’s server, Client will then have administration access to their own cPanel, hosting space and domain name assigned to the Client.

4.4.5

The Client takes full responsibility for the investigation of whether or not their preferred server for hosting space is compatible with the Final Deliverables created by the Designer and agrees that the installation of Final Deliverables to the Client’s preferred server will not be carried out by the Designer but by the alternate Hosting Provider.

4.4.6

The Designer will not be held responsible for any loss including but not limited to data, content, damage, errors, business interruption and client details should the Client decide to take this option.

4.4.7

The Designer offers the Client unlimited hosting space subject to the Terms and Conditions of their Hosting Provider, Crazy Domains. These terms and conditions can viewed at http://www.crazydomains.com.au.

5.1.1

Payment Schedule: Payment is due when Designer completes each milestone as listed in the Work Plan and Timeframe schedule, and Client accepts the Deliverables for that milestone.

5.1.2

FIFTY PERCENT (50%) payment deposit is required for the commencing of the project outlined in the Proposal.

5.1.3

The following payment of THIRTY PERCENT (30%) is due once the Prototype of the project has been approved by the Client.

5.1.4

The final payment of TWENTY PERCENT (20%) is due on completion of Final Deliverables and any applicable revisions. Website will not be launched until this balance has been paid in full.

5.1.5

Client understands that the Client’s website will not be launched or made public until final payment of the Project has been made.

5.1.6

If acquittal is not met by any respective payment milestones payment due will stil be made by the Client to the Designer (King Designs International).

5.2.1

Annual Fees: All applicable annual fees as outlined in this Agreement and the Project Proposal as agreed by both parties, will be billed to the Client on an annual basis. The invoices of such fees include but are not limited to hosting fees, Content Management System (CMS) membership fees, domain registration, Google Apps, and any annual e-commerce fees as stated in the Project Proposal and Work Plan.

5.3.1

Refunds: All deposits are non-refundable. All annual fees are non-refundable. No refunds will be granted if the development of work outlined in the Work Plan has been started by the Designer and is terminated by the Client through no fault or failure of compliance by the Designer.

5.4.1

Invoices: All invoices are payable within FIVE (5) days of receipt. Invoices shall list any expenses and additional costs as separate items.

5.4.2

Invoices and Project Proposals will be sent by email unless otherwise requested by the Client.

5.5.1

Standard Charging Rates: Designer charges their standard hourly and package rates on all work and projects requested by the Client. These rates are charged if requested deadline and completion of such requests are reasonable to be fulfilled between the hours of 9am – 5pm, Monday – Friday.

5.5.2

Maintenance, Management & Update Requests: Designer charges their standard hourly rate of SIXTY-FIVE DOLLARS ($65) for all work considered to be within this category scope. These charges are itemised on Client’s respective invoices and quotes.

5.5.3

Package Rates: Packages — for example, Graphic Design packages — are charged at their respective flat rate fee and are itemised on Client’s respective invoices and quotes.

5.6.1

Urgent Requests & After Hours Rates: Designer charges their Urgent / After Hours hourly and package rates if Client’s requested deadline and completion of such requests are not reasonable to be fulfilled between the hours of 9am – 5pm, Monday – Friday.

5.6.2

Maintenance, Management & Update Requests: Designer charges one and one-half times their standard hourly rate of SIXTY-FIVE DOLLARS ($65) for all work considered to be within this category scope. This equates to an hourly rate of NINETY-SEVEN DOLLARS FIFTY CENTS ($97.50). These charges are itemised on Client’s respective invoices and quotes.

5.6.3

Package Rates: Packages — for example, Graphic Design packages — are charged at one and one-half times their respective flat rate fee and are itemised on Client’s respective invoices and quotes.

Example: Designer’s Standard Graphic Design Package at ONE-HUNDRED THIRTY-FIVE DOLLARS ($135) will be charged at TWO-HUNDRED TWO DOLLARS FIFTY CENTS ($202.50) under the conditions of the Urgent / After Hours rates.

6.1.1

Late fee: A late fee of FIFTEEN PERCENT (15%), or the maximum allowed by law, is payable on all overdue balances and invoices.

6.2.1

Crediting Late Payments: Payments will be credited to late payments first, then to unpaid balances.

6.3.1

Collection Expenses: Client shall pay all collection or legal fees caused by late payments.

6.4.1

Withholding Delivery: Designer may withhold delivery and transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full.

6.4.2

In the event of the Designer providing previously agreed ongoing maintenance services to the Client, the Designer reserves the right to suspend website or email services until payment of outstanding balances and expenses has been received.

6.5.1

Withholding License: All grants of any license to use or transfer ownership of any intellectual property rights under this Agreement are conditioned on full payment, including all outstanding Additional Costs, Expenses, Fees, or any other charges.

7.1.1

Change Request: If Client wants to change the Scope of Work after acceptance of this Agreement, Client shall send Designer a written Change Order describing the requested changes in detail.

7.1.2

Within FIVE (5) DAYS of receiving a Change Order, Designer will respond with a statement proposing designers availability, additional fees, changes to delivery dates, and any modification to the Terms and Conditions. Designer will evaluate each Change Order at its standard rate and charges.

7.2.1

Major Change: If Client’s requests are at or near FORTY PERCENT (40%) of the time required to produce Deliverables, or the value of the Scope of Services, Designer shall be entitled to submit a new and separate Proposal to Client for written approval.

7.2.2

Designer shall not begin work on the revised services until he or she receives a fully signed revised proposal and any additional fees.

7.3.1

Minor Change: If Client requests are not Major Changes, Client will be billed on a time and materials basis at Designer’s hourly rate of SIXTY-FIVE DOLLARS ($65.00) per hour. Such charges shall be in addition to all other amount payable under this Agreement, despite any maximum budget, contract price or final price identified.

7.3.2

Designer may extend or modify any delivery schedule or deadlines in the Agreement as may be required by such changes.

7.4.1

Acceptance/Rejection: Client will have FIVE (5) days to respond in writing accepting or rejecting the new proposal. If Client rejects the proposal, Designer will not be obligated to perform any services beyond those in the original Agreement.

8.1.1

Designer Delays: Designer shall use all reasonable efforts to meet the Work Plan and Timeframe delivery schedule. Designer may extend the due date for any Deliverable by giving written notice to Client. The total of all extensions shall not exceed FIFTEEN (15) BUSINESS days.

8.2.1

Client Delays: Client shall use all reasonable efforts to provide needed information, materials and approvals. Any delay by Client will result in a day-for-day extension of the due date for all Deliverables.

8.3.1

General Delays: Any delay caused be conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day-for-day extension on any performance due. Each party shall use reasonable efforts to notify the other party, in writing, of a delay.

8.3.2

Conditions beyond the reasonable control of the parties include, but are not limited to, natural disasters, acts of government after the date of agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war, terrorism and epidemics.

9.1.1

Testing: Designer will test and correct Deliverables using commercially reasonable efforts before providing Deliverables to Client.

9.2.1

Approval Periods: Client shall, within THREE (3) business days after receiving each Deliverable, notify Designer in writing of any failure to comply with the specification of the Project Proposal or of any other objections, corrections, revisions or changes required.

9.2.2

Designer shall, within FIVE (5) business days of receiving Clients notification, correct and submit a revised Deliverable to Client.

9.2.3

Client shall, within THREE (3) business days of receiving a revised Deliverable, either approve the corrected version or make further changes.

9.2.4

If after FIVE (5) corrections by Designer, Client finds the Deliverables are not acceptable, Client may terminate this agreement subject to the termination clauses of this Agreement.

9.2.5

If Client fails to provide approval or comments during any approval period, those Deliverables will be considered approved and accepted and, where applicable, the next Revision Stage will be considered as reached and the respective payment will be due.

9.2.6

All objections, corrections and changes shall be subject to the terms and conditions of this Agreement.

10.1.1

Client acknowledges that it is responsible for performing the following in a reasonable and timely manner: (a) Provide Client Content in a form suitable for use in the Deliverables without further preparation by Designer, unless otherwise specified in the Project Proposal; (b) Proofread all Deliverables. Client will be charged for correcting errors after the acceptance of any Deliverable; (c) Make decisions regarding other parties.

11.1.1

Accreditation: Designer shall be entitled to place accreditation, as a hyperlink or otherwise, in the form, size and location as incorporated by Designer in the Deliverables on each page of and where applicable on the Final Deliverables.

11.2.1

Promotion: Designer retains the right to reproduce, publish and display the Deliverables in Designer’s portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.

11.3.2

Promotional Approval: Either party, subject to the other’s reasonable approval, may describe its role in the Project on its website and in other promotional and marketing materials, and, if not expressly objected to, include a link to the other party’s website.

12.1.1

Client’s “Confidential Information” includes information that Designer should reasonably believe to be confidential.

12.1.2

Designer’s “Confidential Information” includes the source code of any Designer Tools.

12.1.3

All material considered confidential by either party shall be designated as confidential. Confidential Information shall not be disclosed to third parties and shall only be used as needed to perform this Agreement.

12.1.4

Confidential Information shall not include any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure.

12.1.5

Confidential information will only be disclosed as where required by law or by official investigation by respective ruling authorities.

13.1.1

Independant Contractor: Designer is an independent contractor. Designer shall determine, in its sole discretion, the manner and means by which the Services are accomplished.

13.1.2

No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement.

13.1.3

Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement.

13.1.4

Designer and the work product or Deliverables prepared by Designer shall not be deemed a work for hire as defined under Copyright Law.

13.1.5

All rights granted to Client are contractual in nature and are expressly defined by this Agreement.

13.2.1

Design Agents: Designer reserves the right to use third parties as independent contractors and subcontractors (“Design Agents”) in connection with the Services outlined in the Work Plan. Designer shall remain fully responsible for Design Agents’ compliance with this Agreement.

13.3.1

Non-exclusivity: This Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Designer, and Designer shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Designer.

14.1.1

By Client: Client represents and warrants to Designer that: (a) To the best of Client’s knowledge, use of the Client Content does not infringe the rights of any third party; (b) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials; (c) Client will obtain all necessary and appropriate rights and licenses to grant license to Designer to use Third Party Materials.

14.1.2

The Designer reserves the right to suspend or cancel a Client’s access to any or all services provided by the Designer, at its discretion, if the account or service has been inappropriately used or otherwise abused.

14.2.1

By Designer: Designer represents and warranty to Client that: (a) Designer will provide the Services identified in the Agreement in a professional and workmanlike manner; (b) Designer shall secure all necessary rights, title, and interest in and to the Final Deliverables, including Designer Tools, sufficient for Designer to grant the intellectual property rights provided in this Agreement; (c) To the best of Designer’s knowledge, the Deliverables will not violate the rights of any third parties; (d) If Client or third parties modify the Deliverables or use the Deliverables outside of the scope or purpose of this Agreement, all representations and warranties of Designer shall be void.

14.3.1

EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, DESIGNER MAKES NO WARRANTIES WHATSOEVER. DESIGNER EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.

15.1.1

By Client: Client shall indemnify Designer from any and all damages, liabilities, costs, losses, expenses or attorney fees arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement.

15.1.2

Designer shall promptly notify Client in writing of any third party claim or suit. Client shall have the right to fully control the defense and any settlement of such claim or suit.

14.2.1

By Developer: In the case of a third party lawsuit or proceeding based on a claim that Deliverables breach the third party’s intellectual property rights, and it is determined that such infringement has occurred, Designer may at its own expense, replace any infringing content with non-infringing content.

15.3.1

THE SERVICES AND THE WORK PRODUCT OF DESIGNER ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF DESIGNER, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“DESIGNER PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF DESIGNER.

15.3.2

IN NO EVENT SHALL DESIGNER BE LIABLE FOR ANY LOST DATA OR CONTENT, CLIENTELE OR LEAD DETAILS, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY DESIGNER, EVEN IF DESIGNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

15.3.3

The Designer shall not be liable, under any circumstances, for any loss of business, profits, goodwill or data, loss of use, interruption of business, or for any indirect, or consequential damages that result in any way from the Client’s use of, or inability to use the services, or that results from errors, defects, omissions, delays in operation or transmission, or any other failure of performance of the website, servers or software.

15.3.4

The Designer cannot be responsible for any damages that may be suffered resulting from delays, non-deliveries or service interruptions by any cause or errors or omissions, including interruption at payment gateways or email interruption or through receipt of spam emails.

15.3.5

The Designer does not warrant that any services will not be interrupted or error free; nor makes any warranty as to the results that may be obtained from the use of the service or as to the accuracy, reliability or content of any information, service or merchandise contained in or provided through the Designer’s servers, unless otherwise expressly stated in this Agreement.

15.3.6

Under no circumstances, including negligence, shall the Designer, its officers, agents or anyone else involved in creating, producing or distributing the Designer’s services be liable for any damages that result from the use of, or inability to use the Designer’s service or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, whether or not limited to communication failure, theft, destruction or unauthorised access to the Designer’s records, programs or services.

15.3.7

Notwithstanding the above, the Client’s exclusive remedies for all damages, losses and causes of actions shall not exceed the aggregate dollar amount which the Client paid during the term of this Agreement and any reasonable attorney’s fee and court costs.

16.1.1

Term: This agreement shall begin when both parties sign and shall continue until all Services are complete and delivered, or until the Agreement is Terminated. If Client makes first deposit (20%) on any quoted Project Proposal prior to signing the agreement it will be understood by both parties that the project has been officially agreed to — regardless of having received Client’s signature or not. The term will begin from the date of received payment.

16.2.1

Termimnation for Cause: Either party may terminate this agreement at any time, on FIVE (5) days prior written notice if the other party breaches any of its material responsibilities or obligations under this Agreement and fails to cure that breach during that FIVE (5) day period.

16.3.1

Termination for Insolvency: Either party may terminate this agreement at any time, on written notice to the other party, if the other party ceases to conduct business in its normal course; makes an assignment for the benefit of creditors; is liquidated or otherwise dissolved; becomes insolvent; files a petition in bankruptcy; or a receiver, trustee, or custodian is appointed for it.

16.4.1

Termination by Mutual Agreement: This agreement may be terminated by the mutual agreement of the parties.

16.5.1

Termination for Convenience: Either party may terminate this agreement at any time and for any reason on FIVE (5) days prior written notice to the other party. If Client terminates the Agreement under this section, Designer shall, at Client’s reasonable discretion, complete any work assigned or scheduled during the notice period in accordance with the terms and conditions of this Agreement.

16.6.1

Termination Fees Prior To Second Stage Payment: In the event of termination prior to the Second Stage Payment (as itemised in the Project Proposal received by the Client), Client shall pay Designer for the Services performed through the date of termination in the amount of a prorated portion of the fees due. This is calculated at the Designer’s standard hourly rate. Client shall pay all Expenses, Fees, and Additional Costs incurred through the date of termination.

Termination Fees After Second Stage Payment: In the event of termination after after the Second Stage Payment (as itemised in the Project Proposal received by the Client), Client shall pay Designer the outstanding amount of the Project Proposal. Client shall pay all Expenses, Fees, and Additional Costs incurred through the date of termination.

16.7.1

Intellectual Property: If Client terminates and on full payment of compensation, Designer grants Client right and title as provided by this Agreement with respect to those Deliverables provided and accepted by Client as of the date of termination.

16.8.1

Confidential Information: On expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) all rights and obligations regarding Confidential Information shall survive.

17.1.1

License: Designer grants to Client a non-exclusive, perpetual and worldwide license to use and display the Final Deliverables in accordance with this Agreement. The rights granted to Client are for use of the Final Deliverables in its original form only.

17.1.2

Client may not change, create derivative works or extract portions of the Final Deliverables.

17.2.1

Liquidation for unlicensed use: Additional use of any Deliverables by Client outside the scope of the license granted above requires additional fees. Designer shall be entitled to further compensation equal to TWENTY PERCENT (20%) of the total original Project fee unless otherwise agreed in writing by both parties. In the event of non-payment, Designer shall be entitled to pursue all remedies under law and equity.

18.1.1

Client Content: Client Content is the exclusive property of the Client. Client grants Designer a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Designer’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.

18.2.1

Preliminary Works: Designer retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Designer within thirty (30) days of completion of the Services.

18.3.1

Designer Tools: All Designer Tools are and shall remain the exclusive property of Designer. Designer grants Client a nonexclusive, nontransferable, perpetual, worldwide license to use the Designer Tools solely to the extent necessary with the Final Deliverables for the Project.

19.1.1

Warranty Period: During the first ONE (1) month following expiration of this Agreement, Designer shall provide up to 2 (2) hours of Support Services at no additional cost to Client.

19.1.2

Support Services means commercially reasonable knowledge and technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies.

19.1.3

Requests for additional support will be billed on a time and materials basis at Designers standard rate.

19.2.1

Maintenance Period: After the Warranty Period expires and at Client’s option, Designer will provide Support Services for a separately agreed maintenance time period for Designer’s standard hourly rate applicable at the time of that additional Agreement. These alterations will be billed to the Client on a TWO (2) week cycle basis with all revisions and alterations being listed in the respective invoices.

19.3.1

No Enhancements: The services in the Warranty Period and the Maintenance Period do not include enhancements to the Project or other services outside the scope of the Proposal.

20.1.1

During the Maintenance Period, Client may request that Designer develop enhancements to the Deliverables. Designer shall exercise commercially reasonable efforts to prioritize Designer’s resources to create such enhancements.

20.1.2

Client understands Designer may have preexisting obligations that may delay requested enhancements. Designer shall provide any enhancements on a time and materials basis at at Designers standard rate.

20.2.1

Alterations: Alteration of any Deliverable is prohibited without the express permission of Designer. Designer will be given the first opportunity to make the required alterations. Unauthorized alterations shall constitute additional use and will be billed accordingly.

21.1.1

Negotiation: Parties agree to attempt to resolve any dispute by negotiation between the parties.

21.2.1

Arbitration/Mediation: If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties.

21.3.1

Litigation: In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of NEW SOUTH WALES (NSW), AUSTRALIA. The parties waive any jurisdictional or venue defenses available to them and further consent to service of process by mail.

21.4.1

Attorney Fees: The prevailing party shall be entitled to recover its attorneys’ fees and costs in any dispute resolved by binding arbitration or litigation.

22.1.1

Modification/Waiver: Modifications to this Agreement must be in writing and signed by both parties.

22.1.2

Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.

22.2.1

Notices: All notices under this Agreement shall be given in writing either by: (a) Fax or Email, with return confirmation of receipt; (b) Certified or Registered mail, with return receipt requested.

22.2.2

Notice will be effective when received, or in the case of email or fax, on confirmation of receipt.

22.3.1

No Assignment: Rights or obligations under this Agreement shall not be transferred, assigned or encumbered without the prior written consent of the other party.

22.4.1

Governing Law: This Agreement shall be governed in all respects by the laws of NEW SOUTH WALES (NSW), AUSTRALIA. This Agreement constituted by these terms and conditions and any proposal will be construed according to and is governed by the laws of NEW SOUTH WALES (NSW), AUSTRALIA.

22.4.2

The Client and Designer irrevocably submit to the exclusive jurisdiction of the courts in and of NSW in relation to any dispute arising under these terms and conditions or in relation to any services the Designer performs for the Client.

22.5.1

Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. Where possible the invalid or unenforceable provision shall be interpreted in such manner as to be effective and valid under applicable law.

22.6.1

Headings: Headings, numbering, capitalisation and bold text used in this Agreement are for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of this Agreement, and shall not have any legal effect.

22.7.1

Complete Agreement: This Agreement is the entire understanding of the parties and supersedes all prior understandings and documents relating to the subject matter of this Agreement.

22.7.2

Revisions will be considered agreed to by the Client as specified in this Agreement. Any changes or modifications to this contract thereto, are agreed to by both parties upon renewal of services.

22.7.3

These terms and conditions should be read in conjunction with the Designer’s Outline of Services and any Project Proposals, Quotes, Work Plans and any similarly related documents for the Client’s relevant service package.