At the time of proposal, Your IT Team will provide the customer with a written estimate or quotation of project fees for the project description set out by Your IT Team in its proposal. Quotations are based on current costs of production and are valid for thirty (30) days from the date thereon unless otherwise agreed by Your IT Team in writing, and are based on the brief, specifications and copy supplied by the client at the time of quote. The client’s signed acceptance of Your IT Team’s current estimate or quotation, will indicate acceptance of these terms and conditions, and all of Your IT Team’s acceptance deposit (if applicable) as specified in its estimate or quotation will become immediately due and payable by the client.
Work on the project will not commence until Your IT Team has received this amount. In accepting Your IT Team’s estimate or quotation, the client agrees that the project description and work required to meet the client’s objectives as specified therein is accurate and complete and acknowledges it is based on Your IT Team’s best understanding of the client’s requirements ascertained from Your IT Team’s discussions with the client and/or briefing notes supplied by the client.
Once accepted by the client, Your IT Team’s written estimate or quotation shall be deemed to interpret the client’s written or verbal instructions correctly. Where verbal instructions only are received from the client, Your IT Team shall not be liable for errors or omissions, which are due to the failure of the client to make known expressly or by implication the result that the client desires to achieve.
Project fees including charges for Your IT Team’s design and development services in connection with the project description, will be set out in the written estimate or quotation provided to and accepted by the client. Where not otherwise specified in such written estimate, all project fees are exclusive of GST. Your IT Team has the right to progressively invoice these project fees in the manner (both as to amount and timing) it determines appropriate, on the basis that Your IT Team’s payment terms are strictly seven (7) days from date of invoice.
The suspension by the client of any work, for any reason, for a period exceeding thirty (30) days shall entitle Your IT Team to payment by the client for work carried out, materials and components ordered for that work and other additional costs, including storage and hosting (including cloud).
All additional work not specifically covered by the written estimate or quotation including extra work or cost caused by variations to or increase in scope of original brief, specifications or by the client’s copy being poorly prepared, responding to any change requests (author’s amendments) beyond the scope of work, or re-creation of assets which have not been supplied in a useable format will be charged by Your IT Team as “extras”.
Written estimates or quotations will include a rate for “extras”. Your IT Team will not undertake any “extra” work without first obtaining the client’s written consent – except in respect of “extra” work which is of an urgent nature which if not completed immediately would fundamentally impact the functionality or security of the client’s website (and then Your IT Team will advise the client of such urgent “extra” work as soon as is reasonably possible). Your IT Team will use its best endeavours at the time of providing any written quote or estimate to the client to advise the client of any potential “extra” work that may be required and which is not budgeted for in the written quote or estimate.
Charges for any extras and other additional services required by the client over and above the estimated scope incorporated in the project description for the applicable written estimate, will become fully payable strictly seven (7) days from date of invoice as and when invoiced by Your IT Team.
Payment must be made in full by electronic funds transfer, credit card or PayPal unless agreed prior. Default An account shall be considered default if it remains unpaid for seven (7) days from the date of invoice, except where, in good faith, the client has disputed the underlying invoice. For any default account Your IT Team shall be considered entitled to hold materials from delivery until all outstanding amounts due have been fully paid. Undelivered materials due to non-payment does not relieve the client of its obligation to pay the due amount. Customers whose accounts become default agree to pay Your IT Team on demand. An accounting administration fee equal to 3% per month or part thereof of the overdue amount calculated for the period such amount remains overdue, together with Your IT Team’s legal expenses (on a full indemnity basis) and third party collection agency fees in the enforcement of these terms and conditions. Where, in good faith, the client disputes an invoice, the parties will invoke the dispute resolution clause under these terms to assist them to resolve that dispute. Neither party will take any further action in relation to an unpaid disputed invoice until such time as the dispute resolution process is complete. Notwithstanding the foregoing, the client may only withhold payment in relation to the portion of the invoice that is in dispute – any other undisputed amounts that are part of the same invoice shall be paid as and when due.
Copyright ownership is retained by Your IT Team on all work carried out by Your IT Team for the client including words, pictures, ideas, visuals, illustrations, software source code and compiled files (“Your IT Team original works”) until full and final payment has been made.
The client acknowledges that Your IT Team’s work may incorporate original work either commissioned or authorized use of which is obtained by Your IT Team from a third party (“Your IT Team sourced works”) including copywriters, photographers, artists, illustrators, digital animators, computer or website programmers/ designers, with copyright ownership of any Your IT Team sourced work belonging with the relevant creator of such work (except where copyright has been transferred to Your IT Team in which case such work is deemed to be a Your IT Team original work).
Subject to and conditional upon full payment of all monies owed by the client to Your IT Team on all accounts, the client is licensed to use copyright in the Your IT Team original works strictly and solely for the client’s specific usage and application detailed in the project description of Your IT Team’s written estimate provided to the client at the time of proposal.
The following items, supplied by the client, constitute “client materials”:
The client declares that it holds the appropriate copyright and/or trademark permissions for the client materials.
The ownership of the client materials will remain with the client, or rightful copyright or trademark owner. If the client provides Your IT Team with client materials including any goods, copy, illustrations, animation, photographs, film, data or other information to be used in any form, the client hereby warrants that these client materials do not infringe the rights of third parties and indemnifies Your IT Team against any action taken against Your IT Team by any such third party.
Without limitation, the client agrees not to infringe the copyright, trademark, privacy or personal or proprietary rights of third parties, nor supply libellous, abusive or obscene material nor disparage the products or services of any third party. By supplying images, text, or any other data to Your IT Team, the client irrevocably grants Your IT Team permission to use this material freely in the pursuit of the design.
The client agrees to fully indemnify and hold Your IT Team free from harm in any and all claims resulting from the client in not having obtained all the required copyright, and/or any other necessary permissions.
Your IT Team may, with permission from the client, use, reproduce, display, and exhibit for self- promotion items or images of items produced by Your IT Team for the client.
Any inventions developed by Your IT Team that are not specifically created for the client for the purposes of the work being carried out in this quote, or being created at the request of the client as a part of this quote remain the intellectual property of Your IT Team. Such inventions include, but are not limited to; Plugins developed by Your IT Team and licensed under a commercial agreement.
Your IT Team will have no responsibility nor incur any liability for any errors, which may be printed or published, where such errors have not been submitted and notified by the client to Your IT Team in writing. The final lay-out and content, including grammar, spelling and overall accuracy is the sole responsibility of the client. Unless specifically commissioned, paid for and detailed in Your IT Team’s estimate or quotation Your IT Team is not responsible for any proofreading of content.
Client’s alterations and additional proofs necessitated thereby shall be charged as an extra at the rate specified in a written estimate or quotation. When style, type or layout is left to Your IT Team’s judgement, subsequent changes made by the customer shall be charged as an extra at the rate specified in a written estimate or quotation.
The customer agrees that changes required over and above the estimated work or required to be carried out after acceptance of the project specification will be liable to a separate charge as an “extra” in accordance with clause 3 above. The client also agrees that Your IT Team holds no responsibility for any amendments made by any third party, before or after the work is completed.
All Your IT Team’s creation files including electronic forms of code and artwork shall be deemed ‘Means of Manufacture’ and shall remain at all times the sole property of Your IT Team. Ownership of any goods delivered by Your IT Team to the client will remain with Your IT Team and will not be transferred to the client until such time when the client pays all monies owing to Your IT Team by the client, on all accounts (noting that copyright in Your IT Team original works will always remain the sole property of Your IT Team).
Where Your IT Team has not been paid in full in the manner specified by Your IT Team and Your IT Team delivers the goods to the client then the client agrees that it holds the goods as fiduciary Bailee for Your IT Team, is required to store the goods in a manner that clearly identifies them as the property of Your IT Team and will hold all money received relating to the sale of the goods in a separate account on trust for Your IT Team and will pay such moneys immediately on request to Your IT Team. The risk to the goods immediately passes to the client on delivery to the client at the address nominated by the client.
Your IT Team will not be liable for any claim, loss or expense whatsoever or howsoever arising which is made after the expiration of thirty (30) days from the date of delivery. Your IT Team will not, to the extent permitted by law, be subject to any liability, which exceeds the replacement value of the subject goods or services. Your IT Team will not be liable for any contingent, consequential or punitive damages arising in any way whatsoever. The client acknowledges this express limitation of liability and agrees to limit any claim accordingly.
Your IT Team will not be liable for any claim, loss or expense sustained or incurred by the client or any other person arising in any way as a result of the unavailability of goods, any delay in delivery of the goods or services or any failure to deliver goods or services. The client acknowledges that it has not relied upon or been induced by any advice, recommendation, information or representation provided by Your IT Team as to the quality or performance of the goods and services or their suitability for a particular purpose or otherwise in relation to the goods and services.
Your IT Team makes no representations to the client concerning the content or functionality of the client’s design, software, website and/or other design and development outcomes from Your IT Team providing its services or goods in connection with the project description. The client releases Your IT Team from any liability and acknowledges that it is the client’s own responsibility to ensure that these applicable outcomes meet the client’s requirements. The client is solely responsible for dealing with persons who access the client’s designs, publications, data or webpage and warrants that it will not refer complaints or inquiries in relation to such data to Your IT Team.
These terms and conditions are to be read subject to mandatory provisions of legislation of the Commonwealth of Australia including the Australian Consumer Law or of one or more of the States or Territories, which afford statutory rights to consumers. The invalidity of any clause, or part of a clause, shall not affect any other clause, or other part of the clause.
Each party (Receiving Party) will treat as confidential and properly safeguard any and all information, documents, papers, programs and ideas relating to the other party (Disclosing Party), its operations, finances and products, disclosed to the Receiving Party and designated by the Disclosing Party as confidential or which should be reasonably understood to be confidential (Confidential Information). Confidential Information shall not include information that (a) is or falls into the public domain; (b) is disclosed to the Receiving Party by a third party which is not under an obligation of confidentiality to the Disclosing Party; (c) was already known to the Receiving Party; and/or (d) is independently developed by the Receiving Party without reference to Confidential Information. In the event the Receiving Party is required by a subpoena or other legal process to disclose the Disclosing Party’s Confidential Information, the Receiving Party shall: (i) if legally permitted, inform the Disclosing Party of such requirement; and (ii) only provide such Confidential Information of the Disclosing Party that is legally required.
The Agreement will take effect on the Commencement Date and, unless terminated earlier in accordance with clause 12.2, will remain in effect for the duration of the term specified in the Statement of Work (Term).
Either party (First Party) may terminate the Agreement at any time and with immediate effect by written notice to the other party (Second Party) if the Second Party:
On termination of the Agreement for any reason:
A party may, at any time while there is a genuine dispute relating in any way to the Agreement (Dispute), give written notice (Dispute Notice) to the other party specifying the subject matter of the Dispute and requiring that the parties meet in an agreed location within 10 Business Days after delivery of the Dispute Notice, to attempt to resolve the Dispute (Dispute Resolution Meeting).
If the parties fail to resolve the Dispute at the Dispute Resolution Meeting, or if a party fails or refuses to attend the Dispute Resolution Meeting within the 10 Business Day period referred to in clause 13.1, or at the time and venue agreed in writing between the parties, either party may, by written notice to the other party, submit the Dispute to mediation by a single mediator agreed upon in writing by them or (if they are unable to agree on a mediator within 5 Business Days after the submission to mediation) by the President for the time being of the Queensland Law Society.
In the event of any submission to Mediation:
If the parties fail to resolve the Dispute at the Mediation, or if a party fails or refuses to attend the Mediation at the time and venue determined by the Mediator, either party may, by written notice to the other party, submit the Dispute to arbitration (Arbitration).
The Arbitration will be conducted on the Gold Coast, Queensland, Australia under the laws of the State of Queensland and:
Client’s property and all property and material supplied to Your IT Team by or on behalf of the client will be held at the client’s sole risk, and Your IT Team accepts no liability whatsoever for loss of, or damage to, such property or material unless otherwise specifically agreed by Your IT Team in writing. In the case of property and materials left with Your IT Team without specific instructions, Your IT Team shall be free to dispose of them at the end of twelve (12) months after receiving them and to accept and retain the proceeds, if any, to cover their own costs in holding and handling them.
Where assets, materials or equipment are supplied or specified by the client Your IT Team accepts no responsibility for imperfect work caused by defects in or unsuitability or such materials or equipment. An extra charge may be made by Your IT Team for handling or storing property (including cloud based resources) or materials supplied by, or on behalf of, the client.
It is Your IT Team’s policy to archive and store on hard drive and in cloud storage, electronic forms of materials manufactured, though Your IT Team is under no obligation to store such work. Your IT Team shall not be held liable for loss, corruption or neglect of archives. The client shall have no right or title to data stored by Your IT Team on disks or any other electronic form of storage.
Should Your IT Team in its absolute discretion agree to relinquish such files, they will not be transferred until all work has been paid by the client in full. Your IT Team reserves the right to charge for retrieval time and electronic media should the client request such materials on disk.
No agent, employee or representative of Your IT Team will have any authority whatsoever to bind Your IT Team to any affirmation, representation, warranty or condition concerning the services or goods supplied by Your IT Team under these terms and conditions unless such affirmation, representation, warranty or condition is specifically included in writing within these terms and conditions.
The client agrees that all contracts made with Your IT Team will be deemed to be made in the State of Queensland and the client agrees to submit to the jurisdiction of appropriate court in that State. The provisions of these terms and conditions will be separate and severable from each other to the extent that if any provision or provisions are considered to be inoperative then the remaining provision or provisions will be binding on and enforceable by the parties.
Time shall be of the essence as far as it relates to the client’s obligation under these terms and conditions. Your IT Team may at any time assign its rights and interests under any contract to provide services and goods to the client pursuant to these terms and conditions.
The client shall not assign any of its rights or obligations under any such contract without Your IT Team’s prior consent in writing, which consent may be refused or given subject to such terms and conditions as Your IT Team may determine at its absolute discretion.
In these terms and conditions and the associated document, unless the context otherwise requires: