terms + conditions - WEb projects
This agreement is dated:
The receipt date of our proposal
It is made between:
Your organisation as stated on our proposal ("the Customer") and
Handbuilt Creative Pty Ltd of
Willow Cottage Studio - 2/4 Percy St - Richmond - TAS - Australia ("the Writers").
These are the definitions that apply to this agreement:
"Beta Web Site"
means a fully functional version of the Web Site of the Customer, which is devoid of all Content, except for the Web Site's homepage (Level 1 page).
"Completion Date"
means the date specified as the completion date in the Detailed Specification.
"Content"
means all text, images and media content required to create the Final Product, so far as this is provided by the Customer.
"Design Proposals"
means the proposal for the appearance style and effects of the intended finished Final Product created by the Writers.
"Contract"
means a version of the proposal document, as accepted by the Customer.
"Detailed Specification"
means the written specification of requirements located in the Detailed Specification section of this proposal that satisfy the Customer's functional requirements for the Final Product.
"Excluded Matters"
means commercial arrangements for which the Writers is not responsible and which are pre-requisite to the operation of the Final Product.
"Final Product"
means the deliverables of the Project as specified in the Detailed Specification which are to be passed to the Customer and signal the conclusion of work, and which form the Final Product for the Customer, to be written under the terms of this contract.
"Phase"
means one of the stages in the Timetable.
"Price"
means the price for the Project or a part of the Project as set out in the Fees section of this proposal.
"Project"
means all work in connection with the design and writing of the Final Product, until the Final Product is created.
"Schedule"
means a schedule to this agreement.
"Software"
means all or part of any software required to be written or used to complete the project and to enable the Customer to use the Final Product.
"Test Site"
means the location where the Design Proposals are to be found.
"Timetable"
means the series of Phases of the Project as set out in the Detailed Specification and subject to alteration in the course of completing the Project
"Web Site"
means collectively the website to be written under the terms of this contract.
"Web Site Host"
means a firm or company in the business of hosting web sites, with whom the Customer shall have contracted to host the Web Site.
These are the agreed terms:
1. SUMMARY OF AGREEMENT
For the Price and subject to the terms of this agreement the Writers hereby undertake to complete
the Project so as to satisfy the Detailed Specification.
2. REPRESENTATIVE LIAISON
- 2.1 - With effect from today the Writers and the Customer shall each nominate a representative
who shall be authorised to make decisions relating to the Project and who shall be responsible for:
- - 2.1.1 - organising meetings at which they shall review the progress of the Project.
- - 2.1.2 - providing all information and documentation reasonably required by the other of them to
enable completion of the Project.
3. DESIGN APPROVAL PROCEDURE
- 3.1 - The representatives of the parties will together formulate a functional requirements plan for
the Web Site, including all dynamic elements and principal features.
- 3.2 - If the Customer terminates the contract:
- - 3.2.1 - the intellectual property rights in all graphical parts of the proposals remains with the
Writers and the Customer shall not use any graphical part of the Design Proposals.
- - 3.2.2 - All terms of this agreement relating to confidentiality continue to apply.
- 3.3 - The principal Design Proposal shall be submitted as a single option to the Customer for
review. All work additional to this process shall be charged to the Customer at the rate agreed with
the Writers.
- 3.4 - Approval of the Project by the Customer shall be split into parts in accordance with the list set
out below. Each part shall be submitted to the Customer for approval. Submission shall be by way
of posting to a Test Location, set up by the Writers for this purpose. Any timescale for the
production of any part of the Web Site shall be construed as exclusive of all time during which
the Writers await approval of any part by the Customer.
- 3.5 - The Design Proposal shall include:
- - 3.5.1 - Graphics, including header, navigation, buttons, and all images associated with the page in question;;
- - 3.5.2 - Home page, including all matters of style and format so far as applicable but excluding logo and branding development;
- - 3.5.3 - An example of a secondary (Level 2) page;
- - 3.5.4 - An example of a tertiary (Level 3) page (if requested by the Customer);
4. CONTRACT PROCEDURE AFTER DESIGN APPROVAL
- 4.1 - After approval of the Design Proposals, the Customer shall provide to the Writers all information and other documents reasonably requested by the Writers for this purpose.
- 4.2 - The Customer shall use all reasonable endeavours to complete the preparation of the Content within seven days or as soon thereafter as is possible and submit it to the Writers for inclusion in the Web Site.
- 4.3 - The Writers shall take account of all reasonable comments and/or requests for amendment received from the Customer and shall incorporate them into current development, or supply the Customer with a separate extended proposal as soon as reasonably possible if the amendments are out-with the scope of the Detailed Specification.
- 4.4 - The Customer shall within seven days of receipt of the extended proposal notify the Writers of either: approval as drawn or his comments and/or requests for amendment as he shall reasonably judge appropriate. If the Customer fails to respond within the said period he shall be deemed to have approved the extended proposal.
- 4.5 - The process described above shall be repeated until the Customer has approved (or is deemed to have approved) the amendments, or the extended proposal.
- 4.6 - If the Customer requires an amendment to the Detailed Specification to take account of any application function or performance criteria not previously specified then the Writers shall be entitled to make such revision to the Timetable and the Completion Date as he shall in the circumstances reasonably judge necessary.
- 4.7 - The Writers and the Customer agree to use all reasonable endeavours to complete the process of approval of the Detailed Specification by the date specified (if any) in the Timetable or as soon after as is possible.
5. CONTENT OF DETAILED SPECIFICATION
The Detailed Specification shall include (among other things)
- 5.1 - a list of browsers with which the web site will be compatible
- 5.2 - the Customer's functional requirements for the Final Product;
- 5.2 - the software languages, applications, and adaptations proposed to be used in the construction of the Web Site;
6. SOFTWARE WRITING AND DELIVERY
- 6.1 - The Writers will write the Web Site upon the basis of and in compliance with the Detailed Specification by the date set out in the Timetable or as soon thereafter as is possible.
- 6.2 - The customer will use all reasonable endeavours to complete arrangements in respect of such of the Excluded Matters as are necessary to satisfy the pre-requisite requirements of this contract.
- 6.3 - The Writers shall use all reasonable endeavours to complete the Project by the date outlined (if any) in the Completion Date section of the Detailed Specification.
Delivery shall be effected for the purpose of this agreement only when the Beta Web Site is complete and tested and fully operational on the Test Site, ready for Content insertion by the Customer.
7. CONTENT INSERTION AND MODIFICATIONS
- 7.1 - The Customer shall bear full responsibility for inserting all forms of Content into each page of the Web Site, excluding the homepage (Level 1 page), unless Content Creation services have been purchased.
- 7.2 - The Writers can be engaged to insert content or make modifications if requested by the Customer and shall charge the Customer at a rate set out either in the Fees section of this proposal or in a separate contract.
- 7.3 - The Writers reserve the right to refuse the offering of such content insertion or modification service as detailed in the statement above.
- 7.4 -The Writers are not responsible for any errors in the Final Product due to inaccurate, defective, or corrupt Content.
- 7.5 - The Writers are not responsible for any errors in the Final Product due to incomplete, or ambiguous Project brief or Content use instructions.
8. VARIATIONS
- 8.1 - The Customer shall be entitled at any time prior to completion of the Project to request in writing the Writers to modify the design or functionality of the Web Site or the Software.
- 8.2 - The Customer shall provide the Writers with full particulars of any requested modification and such further information as the Writers shall reasonably require.
- 8.3 - Within 14 days of receipt of such a request the Writers shall inform the Customer in writing whether such modification is technically feasible and shall inform the Customer of: the estimated cost this additional work, and any necessary alteration to the Timetable as are caused by the proposed modification.
- 8.4 - If the Customer elects to proceed with the modification within 14 days of receipt of such information then the Timetable shall be amended in the manner indicated by the Writers.
- 8.5 - If modification is requested after the Web Site has been substantially constructed the Writers may decline to accept the additional work until after completion of and payment for the Project, such additional work becoming the subject of a separate contract.
9. TESTING AND ACCEPTANCE
- 9.1 - The testing shall take place either on the Test Site or a site published to the World.
- 9.2 - The Writers shall test the Software as a web site.
- 9.3 - If any fault or "bug" is found the Writers shall undertake such further work as is necessary until the testing procedure is satisfied as to 100%.
- 9.4 - When the test procedure is completed with 100% compliance, the Writers shall inform the Customer and the Customer shall test the Web Site.
- 9.5 - Within thirty days of the Beta Web Site completion, the Customer shall inform the Writers of any deficiencies in the operation of the Web Site and in the absence of any such notification, the Customer is deemed to have accepted the Web Site.
- 9.6 - The Project is complete after:
- - 9.6.1 - the testing procedure has met the testing protocols indicated in the Detailed Specification
- - 9.6.2 - the Final Product satisfies all Detailed Specification elements
- - 9.6.3 - the Beta Web Site is published to the Test Site
10. PRICE AND PAYMENT
- 10.1 - 33% of the agreed total (including any additional options) is payable on signing of this agreement on receipt of the Writers invoice (unless otherwise stated in the Contract).
- 10.2 - A further 33% progress payment is payable should the production schedule exceed 30 days from the previous invoice (unless otherwise stated in the Contract).
- 10.3 - The final 34% is payable on handover and acceptance of the Beta test application, or agreed deliverables (unless otherwise stated in the Contract).
- 10.4 - Further monthly, quarterly or annual payments may be applicable should hosting and/or maintenance agreements be accepted.
- 10.5 - The Writers shall be entitled upon not less than 28 days notice to the Customer and not more than once in every 12 months during the currency of this agreement to increase the rates for work charged by the hour, unless otherwise stated in this contract.
- 10.6 - The Writers reserve the right to charge the Customer interest in respect of the late payment of any sums due under this agreement (both before and after judgment) at the rate of 5 per cent above the base rate from time to time of the Reserve Bank of Australia from the due date until receipt of payment.
- 10.7 - The Customer will make payment of money due via EFT within 7 days of receipt of each invoice.
11. LATE COMPLETION
Time shall not be of the essence of this contract, unless otherwise stated in the Timetable section of the Contract.
12. SUPPORT AND TRAINING
- 12.1 - Immediately upon publication of the Beta Web Site, the Writers will provide 30 days free email and phone support for the fixing of any errors or "bugs" linked directly with the performance of the Web Site to meet the requirements stated in the Detailed Specification. Support for any development or amendment out-with the scope of the Detailed Specification during this time may be charged for by the Writers only after the associated costing has been communicated to the Customer.
- 12.2 - The Writers shall provide such further training as the Customer may request within 12 months of the date of completion of the Project at the hourly rate set out in a separate contract. Such training shall be provided by a person fully conversant with the Web Site.
13. EXCLUSIONS FROM CONTRACT
The Excluded Matters are:
- 13.1 - Registration of necessary domain names (unless otherwise stated)
- 13.2 - Arrangement of merchant server banking facilities
- 13.3 - Contracting for web hosting services and the provision of appropriate firewalls.
- 13.4 - Supply new or change existing Customer e-mail message system
- 13.5 - Purchase of any necessary computer hardware and software
- 13.6 - Search engine optimisation beyond that specified in this agreement
14. CONFIDENTIALITY
- 14.1 - The parties are aware that in the course of the Project they will each have access to and be entrusted with information in respect of the business and operation of the other and their dealings, transactions and affairs, all of which information is or may be confidential.
- 14.2 - The parties hereby undertake for themselves and every employee or sub-contractor whose services they may use both during and after completion of the Project that they will not divulge to any person whatever or otherwise make use of (and shall use their best endeavours to prevent the publication or disclosure of) any trade secret or confidential information.
- 14.3 - For the purposes of the Customer's above undertaking, the information shall be deemed to include all information within this document (including Fee structure), and all information (written or oral) concerning the construction and Detailed Specification of the Project.
- 14.4 - Both the Writers and the Customer hereby undertake to the other to make all relevant employees, agents and sub-contractors aware of the confidentiality of information and the provisions of this paragraph and to take all such steps as shall from time to time be necessary to ensure compliance by its employees, agents and sub-contractors with these provisions.
- 14.5 - The Customer hereby undertakes that for the period of 12 months following completion of the Project they will not directly or by an agent or otherwise and whether for themselves or for the benefit of any other person induce or endeavour to induce any officer or employee of the Writers to leave his employment.
15. THIRD PARTY SOFTWARE AND DATA SECURITY
- 15.1 - If the Writers incorporate or embed third party software products in the Project then such products will so far as possible be properly licensed to the Customer, with full and appropriate legal documentary evidence in support and any money payable to a third party shall be paid by the Writers. Any license fees payable by the Customer to any third party for software incorporated in the Web Site but not previously used by the Customer shall be paid by the Writers unless included in the price specification set out in the Fees section of this proposal.
- 15.2 - Insofar as the terms of business of a third party seller of software do not permit the arrangement set out in sub-paragraph 1, above, then the Customer shall himself buy the software concerned whereupon the Writer shall have no obligation in respect of the software except to warrant that it functions as a part of the Web Site.
- 15.3 - Insofar as it is impractical to follow the procedure set out in sub paragraph 2 above, then the Writers shall be deemed to be the agents of the Customers for the purpose of buying such software. In this event, the Writers will advise the seller by e-mail, with copy to the Customer, that the software have been purchased for use by the Customer. The Writer will provide full contact details to the seller. It shall be the responsibility of the Customer to retain the copy of the e-mail message by the Writers.
- 15.4 - In the event of any third party software or service failing, being incapacitated or performing below the level that which was promoted at the time of purchase or installation, the Writers shall have no liability to the Customer, including loss of profits, goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable.
- 15.5 - In the event of a security breach caused by exploitation of any software or service installed or used in conjunction with the Web Site, or by malicious intent by a third party or individual, the Writers shall have no liability to the Customer, including loss of profits, goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable.
16. INTELLECTUAL PROPERTY RIGHTS
Software code and graphic images owned by a third party are not affected by this agreement. During and after completion of the contract and unless otherwise specified in this agreement ownership of intellectual property shall be as follows:
- 16.1 - Web Site concepts belong to the Writer.
- 16.2 - Web Site designs used in the Web Site belong to the Customer.
- 16.3 - Web Site designs not used belong to the Writers.
- 16.4 - Graphic images provided by the Writers (excluding third party graphics sourced from commercial image banks), belong to the Customer via a non-exclusive license unless the Writers expressly state that ownership is retained by them.
- 16.5 - Software code written by the Writers prior to the date of this agreement and incorporated in the Web Site belongs to the Writers.
- 16.6 - Code written specifically for the Web Site belongs to the Writers.
- 16.7 - Software elements being components previously developed by the Writers belong to them.
- 16.8 - The Writers now grant a non-exclusive license to the Customer for all items listed above and owned by them, for use in connection with the Web Site for a period of 99 years. The customer may not assign this licence except by way of sale or transfer of the whole of the Web Site.
17. INTELLECTUAL PROPERTY RIGHTS INDEMNITY BY WRITERS
- 17.1 - The Writers shall indemnify the Customer against any damages (including costs) that may be awarded or agreed to be paid to any third party in respect of any claim or action that the normal operation possession or use of the Web Site by the Customer infringes the patent copyright registered design or trade mark rights of that third party provided that the Customer:-
- 17.1.1 - gives notice to the Writers of any infringement immediately he becomes aware of it;
- - 17.1.2 - gives the Writers the sole conduct of the defence to any claim and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the claim except upon the express instructions of the Writers; and
- - 17.1.3 - acts in accordance with the reasonable instructions of the Writers and gives to the Writers whatever assistance they reasonably require in respect of the conduct of their defence.
- 17.2 - The Writers shall have no liability to the Customer in respect of an infringement if it results from any alteration modification or adjustment to the Software not previously known by the Writers.
- 17.3 - In the event of an infringement the Writers shall immediately make such alterations modifications or adjustments to the Software as shall be necessary to make them non-infringing and shall not charge the Customer for this work.
- 17.4 - No limitations of the liability of the Writers to the Customer specified elsewhere in this agreement shall apply to this paragraph.
18. INTELLECTUAL PROPERTY RIGHTS INDEMNITY BY CUSTOMER
- 18.1 - The Customer hereby agrees to indemnify the Writers against all claims and costs arising:
- - 18.1.1 - in connection with the Content supplied by the Customer, whether for breach of intellectual property rights defamation or otherwise
- - 18.1.2 - out of any failure to comply with any law or statutory instrument.
- 18.2 - provided that the Writers:
- - 18.2.1 - give notice to the Customer of any infringement immediately they becomes aware of it;
- - 18.2.2 - give the Customer the sole conduct of the defence to any claim and do not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the claim except upon the express instructions of the Customer; and
- - 18.2.3 - act in accordance with the reasonable instructions of the Customer and give to the Customer whatever assistance he reasonably requires in respect of the conduct of his defence.
- 18.3 - The Customer shall reimburse the Writers their reasonable costs incurred in complying with the above provisions.
19. WARRANTIES BY WRITERS
The Writers now warrant that:
- 19.1 - the Detailed Specification will contain all the information listed in paragraph 5 above
- 19.2 - the Software will be written in accordance with the Detailed Specification
20. LIMITATION OF LIABILITY
- 20.1 - The following provisions set out the Writers' entire liability (including any liability for the acts and omissions of its employees, and sub-contractors) to the Customer in respect of:
- - 20.1.1 - any breach of its contractual obligations arising under this agreement; and
- - 20.1.2 - any representation statement or tortious act or omission including negligence arising under or in connection with this agreement
and the Customer's attention is drawn to these provisions:
- 20.2 - Any act or omission on the part of the Writers, falling within this paragraph shall be known as an ‘Event of Default'.
- 20.3 - The Writers' entire liability in respect of any Event of Default shall be limited to damages of an amount equal to the total Price paid by the Customer for this Project.
- 20.4 - The Writers shall not be liable to the Customer in respect of any Event of Default for loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Writers had been advised of the possibility of the Customer incurring the same.
- 20.5 - The Writers shall not be liable to the Customer in respect of any Event of Default caused by any third party service, product or software used as part of the Final Product or Project, for loss of profits goodwill or any type of special indirect or consequential loss (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or the Writers had been advised of the possibility of the Customer incurring the same.
- 20.6 - If a number of Events of Default give rise to substantially the same loss then they shall be regarded as giving rise to only one claim under this agreement.
- 20.7 - The Customer hereby agrees to give the Writers not less than 60 days in which to remedy any Event of Default.
- 20.8 - The Writers shall have no liability to the Customer in respect of any Event of Default unless the Customer shall have served notice of it on the Writers within one year of the date he became aware of the circumstances giving rise to the Event of Default or the date when he ought reasonably to have become so aware.
- 20.9 - Nothing in this paragraph shall confer any right or remedy upon the Customer to which he would not otherwise be legally entitled.
- 20.10 - The Writers shall not be liable to the Customer for loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of this agreement.
21. TERMINATION
This agreement may be terminated:
- 21.1 - immediately by the Writers if the Customer fails to pay any sum due within 28 days of the date of submission of an invoice;
- 21.2 - immediately by either party if the other commits any material breach of any term of this agreement and which in the case of a breach capable of being remedied is not remedied within 30 days of a written request to remedy it;
- 21.3 - immediately by either party if a trustee receiver, administrative receiver or similar officer is appointed in respect of all or any part of the business or assets of the other party or if a petition is presented or a meeting is convened for the purpose of considering a resolution or other steps are taken for the winding up of the other party or for the making of an administration or bankruptcy order (otherwise than for the purpose of an amalgamation or reconstruction).
- 21.4 - Any termination of this agreement by this paragraph shall be without prejudice to any other rights or remedies to which a party may be entitled.
22. FORCE MAJEURE
- 22.1 - Neither party shall be liable for any breach of its obligations resulting from causes beyond its reasonable control including strikes of its own employees.
- 22.2 - Each of the parties agrees to give notice immediately to the other upon becoming aware of an event of force majeure such notice to contain details of the circumstances giving rise to it.
- 22.3 - If a default due to force majeure shall continue for more than 6 weeks then the party not in default shall be entitled to terminate this agreement. Neither party shall have any liability to the other in respect of the termination of this agreement as a result of force majeure.
23. SUCCESSORS TO THE AGREEMENT
- 23.1 - The benefit and obligations of this agreement shall be binding on any successor in title.
- 23.2 - Neither party shall be entitled to assign this agreement nor all or any of their rights and obligations hereunder without the prior written consent of the other.
24. NOTICES
Any notice to be served on either of the parties by the other shall be sent by Australia Post or pre paid recorded delivery or by facsimile and shall be deemed to have been received by the addressee within 72 hours of posting or 24 hours if sent by facsimile to the correct number.
25. HEADINGS
The headings in this document are for reference only.
26. DISPUTE RESOLUTION
In the event of a dispute arising out of or in connection with this Contract and which has not been resolved following discussions and negotiations between a person or persons appointed or authorised by the Customer and the Writers then they undertake to attempt to settle the dispute by engaging in good faith with the other in a process of mediation before commencing arbitration or litigation.
27. WAIVER
The failure by either party to enforce at any time or for any period any one or more of the terms or conditions of this Contract shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Contract.
28. JURISDICTION
This Contract shall be construed according to the Laws of Australia.
Updated: Feb 2020
