Emma Morgan t/a The Business Designer (ABN: 84 658 658 960) of 5 Wanaka Place, Glenorie NSW (The Business Designer)
This agreement is governed by the laws of New South Wales. Both parties submit to the non-exclusive jurisdiction of the courts in this State.
In the interpretation of this agreement:
- References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
- Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;
- Grammatical forms of defined words or phrases have corresponding meanings;
- Parties must perform their obligations on the dates and times fixed by reference to the capital city of Sydney;
- Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
- If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;
- References to a party are intended to bind their executors, administrators and permitted transferees; and
- Obligations under this agreement affecting more than one party bind them jointly and each of them severally.
The Client wishes to engage the Business Designer to provide services and the Business Designer wishes to provide those services upon the terms and conditions set out in this Agreement. All contracts and transactions between the Business Designer and the Client whether made orally or in writing are subject to these terms and conditions. The Client acknowledges and agrees that the Business Designer may employ its own staff.
- PAYMENT AND INVOICING
Unless stated in your proposal, payment terms are:
For full service web projects
- 40% deposit
- 30% after the design presentation (or earlier if the timeline has been extended)
- 30% prior to the site going live
For project management or print projects
- 50% deposit
- 50% before project completion
We can also quote for project management as a percentage of the actual website project.
We have a strict 7 day
payment policy and it’s important that you pay all invoices promptly so that your project can keep to the outlined schedule. Failure to do so may cause the project to slow down or be put on hold resulting in missed deadlines. If you’re company has different payment terms, please discuss with us prior to starting the project so we can set out an appropriate schedule.
All fees quoted for projects exclude web hosting, domain name registration, copywriting, stock imagery, font licenses, liaising/setting up hosting or email, purchasing of third party plugins, or any other conditions outlined in the proposal document.
The payment schedule has been outlined in the proposal sent to you. Deposits are non refundable after 14 days of receipt.
For projects that run overtime, we reserve the right to split final payments to cover cost of resources for additional time.
We take confidentiality very seriously. Therefore each party acknowledges that in connection with this agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including, but not limited to, preliminary works, client and product data. Each party, its agents and employees shall not disclose confidential information to any third party or use any confidential information except as may be necessary to perform its obligations relevant to this agreement, or as may be required by a court or governmental authority. Notwithstanding the foregoing, confidential information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
- NO ASSIGNMENT
This agreement is personal to The Business Designer and must not be assigned without the prior written consent of the Client. Such consent may be given or withheld at the Client’s absolute discretion. Any assignment or purported assignment shall be void and of no effect.
- Each party shall indemnify and hold harmless the other, their agents and employees from and against claims, demands, losses, costs, damages, actions, suits, or proceedings (hereinafter called “claims”), by third parties that arise out of, or are attributable to either party’s performance of this Agreement or any projects undertaken under the terms of this Agreement provided such claims are:
- attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property, and/or
- caused by negligent acts or omissions of either party or anyone for whose acts either party may be liable, and
- made in writing within a period of 6 years from the date of Substantial Performance of the Work as set out in the certificate of Substantial Performance of the Work, or within such shorter period as may be prescribed by any limitation statute of the province or territory of the Place of the Work.
- Both parties expressly waive the right to indemnity for claims other than those stated above.
- This agreement may be terminated by either party in the event of the other party breaching a term of this agreement and failing to remedy the breach within 14 days after having received notice in writing of the breach.
- Either party may terminate this agreement by written notice to the other party if the other party becomes subject to insolvency proceedings or events.
- The Client may terminate this agreement upon written notice to the service provider if the Business Designer commits a fundamental breach of this agreement within the meaning of this agreement.
- The Agreement will automatically terminate upon the conclusion of the Services unless otherwise changed by agreement in writing (including by email) between the Parties.
- Upon termination of this Agreement, the Business Designer will immediately stop performing the Services.
- Upon termination of this Agreement, the Client will immediately pay the Business Designer the Fees for all Services completed, any pre-agreed out of pocket expenses incurred prior to termination, and any other amounts owing under the Agreement and pay to the Business Designer any amount owed in respect of any indemnities provided under this Agreement.
- OWNERSHIP OF COPYRIGHT
First, you guarantee that all elements of text, images or other content you provide are either owned by yourselves, or that you have permission to use them.
Then, when your final payment has cleared, copyright will be automatically assigned as follows:
- You will own the visual elements that we create for this project. We’ll give you source files and finished design files and you should keep them somewhere safe as we’re not required to keep a copy. You own all elements of text, images and data you provided, unless someone else owns them.
- As all code is either open source or purchased by licence to use, you will have access to all website code files, licences (where you’ve purchased them and we will make these explicit during the development where these are needed), login files for all
your website panels, dashboards, Google analytics and any other accounts needed for the development of this project will be passed once final payment has been received.
You will be free to use all design source files, code and other elements used in the development of the project once the project has completed. For third party licences (eg: for extensions/plugins used during development, for which you will have purchased and have permission to use) you will be bound by the third party licence agreement which will be made explicit to you during the course of the development.
The Business Designer loves to showcase and share the work that has been created and learned with other people and the open source community, so The Business Designer also reserve the right to display and link to your completed project as part of its portfolio, in presentations or to write about the project on websites, in magazine articles and in books about web design.
Approval is required on all projects, via email or using teamwork project management system prior to work being released, whilst all care is taken by The Business Designer, we are not responsible for any grammatical, numerical errors or omissions after final approval, even if these are made by The Business Designer, it is the clients responsibility to proof read and check thoroughly their projects prior to approval.
Once any part has been approved and signed off – if you then decide to change you mind, this is fine as we want to ensure you get exactly what you want, but there will be a fee to re work any concept that has already been approved. This will be agreed at the time.
Your website will need maintenance to ensure that it stays updated and secure. Web maintenance is not included in this project and is billed separately. We do offer affordable yearly maintenance plans to ensure that your CMS software stays up to date and protected from malware and hackers. If you’re interested, we can send you details about this separate to this project proposal. A specialist in this area should carry out web maintenance and The Business Designer will not be liable for any issues caused as a result of this.
If additional training above and beyond the training given as part of this project is needed, we are happy to provide you with a cost estimate for providing this training.
- TECHNICAL SUPPORT
We’re not a website hosting company so we don’t offer support for website hosting, email or other services relating to hosting. You may already have professional hosting provider and you might even manage that hosting in-house; if you do, great. If you don’t, we can refer you to one of our preferred hosting providers who can set up an account for you. Updates to, and management of that server/emails will be up to you and your hosting provider.
- LICENSES OF 3RD PARTY PRODUCTS
We offer services, which often incorporate the use of 3rd party services and products. We may install these products on to your site utilising our developer’s license. In these cases, if you wish to terminate your engagement with us but wish to maintain use of these licensed products or services, we will notify you of the licensing terms and give you an option to purchase an independent license for your site to continue using it/them.
- ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement between the parties with respect to the mutual business interests and collaborative business conduct and any and all previous Agreements, written or oral, express or implied between the parties or on their behalf are terminated and cancelled and each of the parties releases and forever discharges the other of and from all manner of actions, causes of action, claims or demands whatsoever under or in respect of any Agreement.
Any modification of this Agreement must be in writing and signed by both parties or it shall have no effect and shall be void. The Parties agree that this Agreement may be executed in counterpart and by fax, e-mail or other mutually agreed upon medium.
In the event that any provision of this Agreement is found to be void, invalid, illegal or unenforceable by a court of competent jurisdiction, such finding will not affect any other provision of this Agreement.