- Payment Default
- Client Responsibilities
- Service Compatability
- Service Delivery & Availability
- Maintenance & Scope
- Warranties & Liability
- Term & Termination
- Intellectual Property
- Governing Law & Jurisdiction
Summary & Interpretation
These Website Development Terms are between Webtribe Designs, a provider of website development and design services ("the Supplier") and the client ("the Client"), for the provision of services in relation to the development of the Client's website or other related services ("the Service"). The Supplier has provided the Client with a quotation with respect to the Service ("the Quotation") which is governed by these Terms.
The following definitions will apply:
"Agreement" means the Agreement between the Supplier and the Client pursuant to clause 1.2 below.
"Commencement Fee" means the amount set out in the Quotation as being the first payment at which point the Service will commence.
"Completion" means the Website being live and functioning according to the Specifications.
"Confidential Information" means all information provided to the Client by the Supplier, including but not limited to designs, concepts, trademarks, copyright and rights in the nature of copyright, patents, patterns, drawings, models, computer generated designs or images, any rights under licence, know-how, techniques, technical information and technical drawings, any information marked "confidential, details regarding the technology and design of the Service or its implementation, the terms of the Agreement (including the Price) or any other information which is treated by the Supplier as confidential or which the Client is advised is confidential except for information which is available in the public domain, unless that information is available in the public domain as a result of the Client's disclosure in breach of the Agreement.
"Data" means content provided to the Supplier by the Client for incorporation in the Website.
"Defect" means a substantially significant error, defect or malfunction which does not conform with the Quotation.
"Intellectual Property Rights" includes all present and future rights in relation to trade marks, designs, patents or other proprietary rights, or any rights to registration of such rights whether created before or after the date of the Agreement, and whether existing in Australia or otherwise, save for the Moral Rights.
"Moral Rights" means the moral rights granted under the Copyright Act 1968 (Cth), and any similar rights existing under foreign laws.
"Parties" means the Supplier and the Client.
"Personnel" means directors, officers, employees, agents, contractors, sub-contractors and their respective personnel.
"Price" means the price for the Service as outlined in the Quotation.
"Quotation" has the same meaning set out in clause 1.1 hereto.
“Specifications” means the criteria for the website agreed between the Parties.
"Website" means the Client's website being developed and/or hosted by the Supplier.
1.1. The Quotation provided to the Client is subject to the Client's written acceptance in a form directed by the Supplier in its sole discretion.
1.2. Written confirmation of the Quotation will constitute the Client's acceptance of these Terms and form the basis of a contractual agreement between the Parties ("Agreement").
1.3. Quotations are valid for 30 days from the date stated on the Quotation.
1.4. The Supplier reserves the right to withdraw or vary the Quotation at any time prior to the delivery of the Client's written acceptance of the Quotation to the Supplier.
2.1. Payment of the Price must be made by the Client in accordance with the Quotation.
2.2. Currency for the Quotation and invoices issued by the Supplier are in Australian dollars ($AUD) and are exclusive of GST unless otherwise expressly agreed.
2.3. Invoices shall be payable within 7 days of the date of the invoice or on such other payment terms set out therein and must be made by one of the methods outlined in the invoice. All deposits or advanced payments are non-refundable.
2.4. The Client acknowledges and agrees that the Supplier may apply any payments received from or on behalf of the Client in reduction of any amount owing in such order and manner as the Supplier thinks fit in its sole discretion.
2.5. In the event of a delay in the provision of work by the Supplier as a result of the Client's failure to provide information necessary for the provision of the work or the Client's failure to comply with the timetable set out in the Quotation, the Supplier reserves the right to send the Client an invoice for work done up to the invoice date following 14 days of the Client's delay.
3.1. The Supplier reserves the right to charge the Client interest on any overdue amount at the rate set by the Penalty Interest Rates Act 1983 from time to time.
3.2. The Supplier may by notice to the Client suspend work, and the Client’s use of and access to the Services, until outstanding invoice(s) and interest are paid in full. Charges shall continue to accrue during such period of suspension.
3.3. The Supplier reserves the right to charge the Client all costs and expenses incurred in recovering any outstanding amounts owed to the Supplier; including engaging the services of a debt collection organisation, legal practitioners or other entities to assist the Supplier in recovering that debt at the Client’s expense.
3.4. The Supplier will not be responsible for any loss or damage caused by the termination of the Service under clause 3.2.
3.5. The Client agrees that it will not deduct or withhold any amount (whether by way of set-off, counterclaim or otherwise for any reason whatsoever) from any amount owing to the Supplier.
4.1. The Client shall be responsible for the accuracy and completeness of the Data and acknowledges and agrees that it shall be liable for any delays caused as a result of errors or faults located in the Data provided by the Client.
4.2. The Supplier shall not be liable for any delays resulting from the Client’s failure to fulfil any of its obligations. The Supplier reserves the right to invoice the Client for any additional expenses reasonably incurred as a result of such delays.
4.3. The Client acknowledges that the ability of the Supplier to provide the Service is dependent upon the accuracy and completeness of the Specifications as well as the full and timely co-operation of the Client which the Client agrees to provide.
4.4. The Client shall provide the Supplier access to, and use of, all information, data and documentation reasonably required by the Supplier to deliver the Service.
4.5. The Client acknowledges and agrees that it is required to take all reasonable endeavours, including encryption to ensure the security of the Data.
5.1. The Supplier will use reasonable endeavours to ensure the Service will be suitable for current browser versions as provided for in the Specifications.
5.2. In the event that the Service is not compatible with future browsers, the amendment required to the Service to ensure compatibility is not included in the Price. The Supplier is entitled to charge further fees to amend the Service to ensure its compatibility with future browser versions.
6.1. The provision of the Service commences on the day of the payment of the Commencement Fee.
6.2. The Client acknowledges that the Supplier may engage contractors to perform or partly perform the provision of the Service.
6.3. The Client acknowledges and agrees that the time frame outlined in the Quotation for the provision and/or delivery of the Service is an estimate. The Client expressly acknowledges and agrees that it cannot claim any compensation, make any requisition or objection, refuse or delay any payment or terminate the Agreement as a result of the Supplier's inability to meet the time frame estimate.
6.4. The Supplier shall use all reasonable endeavours to provide continuing availability of the Service for the duration of the Agreement, but the Client expressly acknowledges and agrees that the Supplier may, at its absolute discretion and without notice immediately suspend all or part of the Service, without liability to the Client:
6.4.1. Where there is a malfunction or breakdown of any of the Supplier's equipment required to operate the Service or where the Supplier is required to undertake the repair, maintenance or service of any part of the Service;
6.4.2. During planned downtime (of which the Supplier will endeavour to give the Client prior notice);
6.4.3. Where there is any interruption resulting directly or indirectly from an electrical storm, tempest, electrical short circuit, power failure, telecommunications failure or fault, acts of God, civil or military authority, acts of public enemy, wars, accidents, fires, explosions, earthquakes, floods, strikes, labour disputes, Government action, shortage of suitable parts or any other cause beyond the Supplier's reasonable control;
6.4.4. Where it is reasonably required to reduce or prevent fraud or interference with the Service;
6.4.5. The Client is in default of any payment or obligation under the Agreement;
6.4.6. Where the Supplier reasonably believes that these Terms have been violated by the Client;
6.4.7. To withdraw or vary the Service;
6.4.8. The Supplier is required to comply with a request from a government agency, emergency service organisation, law enforcement agency or by order of an Australian Court or Tribunal; or
6.4.9. There exists an event pursuant to clause 11 of these Terms.
6.5. The Client expressly acknowledges and agrees that to the maximum extent permitted by law, the Supplier will not be held liable for any loss, liability or damages howsoever arising, directly or indirectly, from or in connection with the unavailability of the Service at any time for any period.
6.6. The Client expressly acknowledges and agrees that the Client cannot claim any compensation, make any requisition or objection, refuse or delay any payment or terminate the Agreement as a result of the unavailability of the Service at any time for any period.
7.1. During the Supplier's provision of the Service, the Client will be required to provide the Supplier with sign-offs on different stages of the development of the Service. These sign-offs will be in the form as directed by the Supplier in its sole discretion.
8.1. The Supplier will provide maintenance of the Service at no charge for a period of 30 days from the date of Completion ("Warranty Period").
8.2. The Client acknowledges and agrees that the Supplier may be required to make variations or amendments to the Service without notice to the Client in order to provide maintenance to the Service.
8.3. The Client acknowledges and accepts that the Warranty does not provide support in respect of:
8.3.1. Third party products and services: including but not limited to email, operating systems, firewall software, virus prevention software, Internet products or validation products;
8.3.2. Acts by third parties: including but not limited to:
a. Rectification of Defects resulting from any modification of the Service by any person other than the Supplier;
b. Rectification of Defects resulting from use of the Service in combination with equipment other than the designated computer equipment;
c. Rectification of operating errors and/or faulty computer hardware;
d. Any modification of the Service which represents a departure from the descriptions contained in the Specifications; and
8.3.3. Data Import/Export: Technical support for importing or exporting data to and from products and services other than the Service.
8.4. After the Warranty Period, the Supplier will provide maintenance of the Service at the Supplier's hourly rate as detailed in the Quotation or as advised from time to time.
8.5. The Client acknowledges and agrees that amendments to the Service by anyone other than the Supplier resulting in Defects to the Service may be remedied by the Supplier at the Supplier's hourly rate as outlined in the Quotation.
9.1. The Service shall be provided without any guarantees, conditions or warranties as to its accuracy, speed, uptime, completeness, reliability, suitability or currency of Services and they are provided on an "as is where is" basis. The Supplier does not warrant that the Service or the Website will be uninterrupted or error free, will meet your requirements (such as speed, uptime, performance or reliability), nor will they be free from external intruders (hackers), unauthorised virus or worm dissemination. Any timeframes are provided as a guide or estimate only.
9.2. All warranties, conditions and representations, whether express or implied (other than express warranties stated by the Supplier in writing), are excluded except where the Supplier is by law unable to exclude or limit liability. To the fullest extent permitted by law, the Supplier is not liable to the Client for loss of profit, other economic loss, indirect, special, consequential, general or similar damages arising under any order, or for negligence by the Supplier, or for any claim made against Client by any other party even if the Supplier has been advised of the possibility of such claim.
9.3. The Client acknowledges and accepts that, subject to applicable laws, the Supplier's total liability for any loss, damage or reliance shall be limited to: a) In the case of goods, either replacement of goods, repair of goods, or a refund of the price paid for the goods (as determined by the Supplier); or b) In the case of services, either supply of the services again or a refund of the price paid for the services (as determined by the Supplier).
9.4. The Client acknowledges and accepts that the Supplier is not liable or in default, delay or failure in performance under the Agreement for any interruption resulting directly or indirectly from acts of God, civil or military authority, terrorism, wars, accidents, fires, explosions, earthquakes, floods, strikes, labour disputes, Government action or other cause beyond the reasonable control of the Supplier.
9.5. The Client expressly acknowledges and agrees that delays in the provision of technical support may occur and agrees to hold the Supplier harmless against any such delays.
9.6. The Client acknowledges that It has not relied on any service involving skill and judgment, or on any advice, recommendation, information or assistance provided by the Supplier
9.7. The Client agrees that it has the sole responsibility of satisfying itself that the goods or services are suitable for the use of the Client or any contemplated use by the Client, whether or not such use is known by the Supplier.
9.8. Nothing in these Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
10.1. The Client indemnifies the Supplier in respect of any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment suffered or incurred by the Supplier (including, but not limited to, economic loss and all legal costs and disbursements on a full indemnity basis) caused by the Client and/or any wilful, illegal or negligent act or omission by the Client and/or directly or indirectly related to provision of the Data, use of the Services or the Website by the Client or anyone else, or otherwise arising as result of this Agreement.
10.2. The Client agrees that the Supplier shall not be liable for: a) any breach, criminal act or negligence by a third party involving any credit card data which arises out of the provision of Services; b) any loss of reputation to the Client as a result of any comment, review or opinion made by a third party through the use of other websites; c) any damages arising as a result of the Services being hosted on third party servers; and/or d) any and all third party costs that arise in relation to the provision of Services.
10.3. This clause 10 will survive the termination or expiration of the Agreement.
11.1. This Agreement commences on the date the Supplier commences providing the Service or such other date agreed by the Parties in writing ("Commencement Date") and terminates on the date the Supplier completes the Service (“Completion Date”), unless the parties agree in writing to extend the term of this Agreement.
11.2. The Supplier may terminate this Agreement (without any liability): (a) at any time by giving the Client at least thirty (30) days’ notice; (b) immediately on giving notice to the Client, if the Client is in breach and fails to remedy such breach within 14 days after receiving the notice, including failure to pay any outstanding charges by the due date specified in an invoice; or (c) the Client becomes insolvent within the meaning of the Corporations Act 2001, or is otherwise unable to pay debts when due or the Client ceases to carry on business.
11.3. In the event that the Client is purporting to terminate the Agreement as a result of a breach of the Agreement by the Supplier, the Client agrees that its exclusive remedy is described at 9.3b.
11.4. The Client may terminate the Agreement at any time by giving the Supplier at least sixty (60) days written notice. Any amounts or deposits already paid by the Client shall not be refunded except in the sole discretion of the Supplier.
11.5. Where the Client terminates the Agreement at any time before Completion and through no breach of the Agreement by the Supplier, the Client will be liable to pay the Supplier, any unpaid monies owing under the Price.
11.6. If the Client terminates the Agreement without complying with its obligations under clause 11, the Supplier may suspend or terminate the Client's access to the Service immediately. The Client acknowledges that it cannot claim any compensation if the Supplier suspends or terminates the Agreement with the Client under this clause.
11.7. On termination by the Client, The Supplier shall invoice the Client for all amounts due but unbilled and may delete all data, materials, content, configurations in connection with the Service, whether on the Supplier’s storage media or otherwise. It is the Client’s responsibility to ensure it has retained a back-up copy of the Data.
11.8. Termination or expiry of the Agreement will not affect the operation of any accrued rights or liabilities of either Party, nor any provision of the Agreement which is expressly or by implication intended to continue in force after such termination
12.1. Any material that the Supplier develops, produces or derives from the Services including, but not limited to, any computer services, systems or processes, is, and remains at all times, the intellectual property of the Supplier, unless otherwise authorised in writing by the Supplier.
12.2. The Supplier grants to the Client a non-exclusive, non-transferable licence or right in, all or any part of its Intellectual Property Rights contained in the Services upon receiving full payment of any and all monies owed by the Client to the Supplier.
12.3. In relation to the licence in clause 12.2: (a) it will automatically terminate if this Agreement ends; and (b) it does not include the right to replicate, commercialise, adapt, modify, reverse engineer, decompile or disassemble in whole or in part.
12.4. The Client acknowledges and agrees that:
12.4.1. The Client has obtained all relevant Intellectual Property Rights, clearances, consents and authorisations over any information, including but not limited to images, written text, video, software or other Data which the Client provides to the Supplier in the course of providing the Service.
12.4.2. The Data is the Client's sole responsibility and the Supplier has no ownership, control or responsibility to the Client or to any third party for any Data which may infringe any Intellectual Property Rights of a third party.
12.5. The Client agrees that the Supplier may place a by-line and a link to the Supplier's website at the bottom of the Website unless otherwise agreed and include the Website in the Supplier's portfolio for the purposes of its promotion and marketing.
13.1. Save as required by law, the Client shall not disclose any Confidential Information relating to the Supplier or its affiliates obtained during or arising out of this Agreement, to anyone (except the Client’s Personnel where the disclosure is essential to carrying out their duties for the purposes of the Agreement).
13.2. The Client shall procure that anyone else receiving benefit of the Services, whether Personnel or otherwise, comply with the terms of this clause 13 as if they were a party to the Agreement.
13.3. Each Party must, at its expense: a) maintain effective security measures to safeguard the Confidential Information from unauthorised disclosure, copying, access or use; b) keep the Confidential Information under its control; c) immediately take all steps to prevent or stop any suspected or actual breach of this clause 13; d) comply with any direction issued by the disclosing Party from time to time regarding any suspected or actual breach of this clause 13; and e) immediately notify the disclosing Party of any suspected or actual unauthorised disclosure, copying, access or use of the Confidential Information.
13.4. Each Party will indemnify the other Party ("Indemnifying Party") in respect of any loss, liability or expense incurred by the other Party, arising out of or in connection with a breach of any obligations under or pursuant to this clause 13.
13.5. This clause 13 will survive the termination or expiration of the Agreement.
14.1. All notices given by the Parties must be in writing.
14.2. The Supplier may give notice by email to the email address notified by the Client. It is the Client’s obligation to keep that email address current and correct.
14.3. The Client agrees that record of the Supplier having sent a notice to the Client by email is, of itself, conclusive proof of receipt.
14.4. Notices given by the Client must be delivered to email@example.com
15.1. Invalidity of any provision of these Terms and/or Quotation will not affect the validity of any other provisions of these Terms and/or Quotation except to the extent made necessary by the invalidity.
15.2. In the event of any inconsistency between these Terms and the Quotation, the Quotation will prevail.
This Agreement and any dispute or claim arising out of or in connection with same shall be governed by and construed in accordance with the laws of Victoria, Australia and the Parties submit to the exclusive jurisdiction of that State.