Definitions
“Completion Date”
“Content” means all data, logos, designs, graphics, content and any related materials to be incorporated in the website. “Design Services” may be applied to a new or existing website and may include any of the following or a combination thereof:
> Preparation of basic templates for web pages;
> Revision and organisation of web site content;
> Inclusion and manipulation of formats, images, typefaces, layout, style and overall presentation of web pages;
> Facilitation of hosting services;
> Arranging applications for domain names and/or re-delegation of domain names; or
> Recording and reporting on website traffic statistics.
“Our web site” refers to: http://www.surgemedia.com.au
“Planning Worksheet” means the day to day work schedule for the Design & Development Services in the Planning Worksheet
“Project Specifications” means the description of the Design & Development Services.
“Quotation” means the description of the fees and costs payable for the Design & Development Services.
“Quotation Period” is 30 days from the date of the Quotation.
“Revised Quotation” means a subsequent amended quotation agreed between the parties after the commencement of this agreement.
“We”, “Our”, “Us” refers to SURGE MEDIA and its subsidiaries, employees, officers, agents and affiliates.
“Web site” means the location accessible on the internet through the World Wide Web and which provides multimedia content via a graphical user interface
“You”, “Your” or “the Client” refers to you as the owner and/or operator of a website to which our Web Site Design Services (the “Design Services”) are applied.
“Your web site” refers to any web site owned and/or operated by you to which our Design Services are applied.
Interpretation
- In this agreement unless the context otherwise indicates:
- headings are for convenience only and do not affect the interpretation of this agreement;
- reference to the singular includes the plural and vice versa;
- reference to any gender includes the other genders;
- reference to a person includes a corporation and vice versa;
- reference to a party includes that party’s executors, administrators, successors and permitted assigns;
- every obligation entered into by two or more parties binds them jointly and each of them severally;
- a reference to a schedule is to a schedule to this agreement; a reference to a part, clause or other sub-clause is a reference to a part, clause or other sub-clause in this agreement;
- any annexures and appendices form part of this agreement;
- any document referred to in this agreement will mean that document as well as any other document in substitution for that document which has been approved in writing by the parties;
- where any word or phrase is defined in this agreement, any other grammatical form of that word or phrase will have a corresponding meaning;
- the words “includes” and “including” or words of similar effect are not words of limitation; and
- a reference to a statute, regulation or other law includes all regulations and instruments made under such law and all consolidations, amendments, re-enactments or replacements of it.
The Contract shall commence on the date of the Quotation and shall conclude on the Completion Date.
You must:
- provide the content as requested by us in a reasonable time;
- provide any other information, ideas or suggestions as requested by us in a reasonable time;
- ensure that material you submit to us for inclusion in the web site through use of the Service is not unlawful or for an improper purpose, including information that is defamatory, misleading or deceptive, in breach of copyright or would otherwise expose us to any liability, legal proceedings or other sanction;
- ensure that you do not make, arrange or authorise the insertion of any reference to us or our web site in any document (including promotional or merchandising material) or on any web site other than our web site without our prior written consent;
- promptly execute any document, make any arrangement or do anything that is reasonably requested by us in order to facilitate our provision of the Design Services, including but not to any necessary authorisation, permission or security passwords concerning access to codes, programs or other information in relation to your web site held by any other party (eg. a third party internet service provider that hosts your web site) and any edits to text to be included on your web site;
- You represent and warrant that you are authorised to make available the material submitted by you for inclusion in any web site we are to design on your behalf and that you are acting under authority of the proprietors of any related real estate property.
You acknowledge that:
- you have read and agree to be bound by the terms of all legal notices posted on the Site including Privacy Policy, Disclaimer and Copyright notices;
- by accepting the Quotation, you hereby assign all intellectual property rights in any web site we design on your behalf;
- upon payment of the final invoice, we will assign to you all intellectual property rights in any web site we design on your behalf on condition that you grant us an irrevocable, world-wide, royalty free license to copy and adapt any such web site in order to provide Design Services, to promote the Design Services or for any other reason.
- we are not under any obligation to monitor or censor the material submitted by you but we reserve the right to do so;
- we are not responsible for the content of any web site we design on your behalf or for any errors or omissions in any data provided by or on behalf of you;
- systems or technological failure may impede or prevent provision of the Design Services;
- you are responsible for and must pay the cost of all telecommunications and Internet access charges incurred when hosting or accessing any web site designed by us on your behalf, whether or not such access has been arranged by us;
- if you have not arranged for your web site to be hosted, we shall deliver completed web sites we have designed by way of CD;
- you are responsible for the security and integrity of your data; and transmission of data over the Internet can be subject to errors and delays.
In the event that we are required to perform Design Services that are not provided for in the agreed Project Specification or Quotation, a Revised Quotation will be issued to accommodate additional requirements agreed between the parties and, once signed by you, the Revised Quotation will replace the Quotation and may provide for a different Completion Date and a different Quotation Amount than those outlined in the initial Quotation.
Calculation of Fees
The Fees will be calculated pursuant to the Quotation and the Revised Quotation, if applicable.
Outlays
You are responsible for paying any outlays listed in the Quotation and the Revised Quotation, if applicable or any outlay incurred by us in the performing the Design Services.
Quotation Amount less than $1,000
If the Quotation Amount is $1,000 or less (excluding GST), the entire Quotation Amount is payable by you within seven (7) days of the Completion Date.
Quotation Amount greater than $1,000
If the Quotation Amount exceeds $1,000 (excluding GST), the Quotation Amount shall be payable as follows:
thirty percent (30%) of the total Quotation Amount shall be payable by way of a nonrefundable deposit prior to commencement of project.
thirty percent (30%) of the total Quotation Amount shall be payable as progress claim after seventy percent (70%) of the project has been completed; and
the remaining thirty percent (40%) shall be billed when work is completed.
Revised Quotation
In the event that a Revised Quotation is issued, we reserve the right to include the following in the Revised Quotation Amount:
a minimum hourly rate of $150.00, payable in increments of 15 minutes (30), for any additional Design Services not provided for in the Quotation and/or any management time incurred, including renegotiation and preparation of the Revised Quotation.
GST
All rates, charges or expenses, etc referred to in this Agreement or in the Quotation are GST exclusive unless otherwise stated to be inclusive of GST and you will pay us an additional amount on account of any GST which we are liable to pay as a result of any supply we make to you.
You may terminate this Agreement at any time.
We may suspend the design services and may terminate this Agreement (at our sole discretion) if:
- you fail to pay our tax invoice(s) as required from time to time;
- you fail to provide us with adequate instructions, fail to respond to us pursuant to clauses 3.1(a) or (b) within a reasonable time or otherwise breach the terms of this Agreement;
- you give instructions that are deliberately false or intentionally misleading;
- you fail to accept advice we give you;
- you engage another web designer to advise you on this matter without our consent;
- you ask us to act unethically;
- you enter into bankruptcy, liquidation, administration, receivership, a composition of arrangement with your creditors, or appoint a receiver or manager over all or any part of your assets or become or are deemed to become insolvent; or
- you die, or if you are in a partnership, are dissolved or an application to dissolve is filed, or if you are a company, are wound up or an application for winding up is filed.
- warranted for another just cause.
If the agreement is terminated either by you or us, you remain liable for the Fees and outlays payable under the Quotation and Revised Quotation, if applicable, up until that time.
If you do not pay monies in accordance with this Agreement, we may:
- suspend the Design Services;
- deny you or your customers access to the web site and stop the operation of the website;
- charge interest on any overdue amount at an annual rate equal to 2% above the notified rate by our principal bank from time to time as its indicative lending rate on bank overdrafts over $100,000
- demand that you pay for any costs of collecting the overdue amount, including but not to collection of agency fees and legal fees, on an indemnity basis.
On termination, we are entitled to retain possession of any information, documents, notes, memorandum, computer code, computer files, or software while there is money owing to us, unless and until payment is made by you.
You acknowledge and agree that termination of the Contract pursuant to this clause does not relieve you of your obligations and liabilities pursuant to the Contract and we reserve our right to enforce such obligations and liabilities in any event.
To the extent allowable under the Trade Practices Act 1975 (Cth) or any other applicable law, we:
- exclude all conditions and warranties implied into the Contract;
- exclude consequential, special or indirect loss or damage (included but not to loss of opportunity, loss of revenue and loss of profits);
- limit our liability for breach of any condition or warranty that we cannot exclude to the greater of (at our option):
i. Resupplying the Design Services; or
ii. Paying the cost of having the Design Services resupplied; and
- limit our liability in respect of any other claim in connection with the agreement whether the claim is based in contract, tort (including negligence) or statute to the amount paid to us by you under the Agreement.
We will not be liable under the Contract to the extent that liability is caused by:
- any breach of your obligations under the Contract; or
- any delay in performance or breach of the Contract which arises as a result of any matter beyond our control including but not to viruses, other defects or failure of the server hosting our web site or any web site we design on your behalf.
You indemnify us (“those indemnified”) against any direct or consequential liabilities, losses, damages, expenses and costs (including legal expenses on a solicitor and own client basis) incurred or suffered by any of those indemnified as a result of any claim or proceedings brought by a third party against those indemnified in connection with any material generated and submitted by you in connection with the Design Services.
No right under this agreement is waived or deemed to be waived except by notice in writing signed by the party waiving the right.
A waiver by one party under clause 9.1 does not prejudice its rights in respect of any subsequent breach of this agreement by the other party.
A party does not waive its rights under this agreement because it grants an extension or forbearance to the other party.
A notice must be sent by e-mail, prepaid post or facsimile to your or our last known address.
These Terms & Conditions, the attached Schedules containing the Quotations, the Project Specification, the Quotation and the Planning Worksheet and any Revised Quotation, if one is agreed between the parties, comprise the entire Contract and supersede all prior understandings, agreements or representations between the parties that concern provision of the Design Services.
The laws of Queensland govern the Contract. You submit to the non-exclusive jurisdiction of the Queensland Courts.
If a clause is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this agreement.