These Terms and Conditions are subject to change without notice and may be superseded.
We may modify these Terms and Conditions by general notice on a page of our website, by email, or by any other method of communication.
Definitions and Interpretation
Definitions
In this Agreement unless the context indicates otherwise, the following words will have the following meanings:
Additional Costs means all additional costs that we are permitted to charge you under this agreement.
Approval Item is defined in Clause 11.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Background IP means the Intellectual Property of a Party which was in existence prior to the commencement of this agreement or which is subsequently developed by that Party independently of and for purposes unconnected with this agreement.
Claim means a demand, action or proceeding of any nature whether actual or threatened.
Client, you or your means, in relation to any work that we do for you:
the person named as the Client in the Purchase Order;
if there is no Purchase Order, then the person named as the Client in the Proposal; or
if there is no Proposal, then the person for whom we are undertaking the Project.
Client Content is defined in Clause 8.
Confidential Information of a party:
means any information:
marked as confidential and any information received or developed by the Service Provider during the term of this Agreement, which is not publicly available and relates to processes, equipment and techniques used by the Client in the course of the Client's business including all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans;
regarding that party’s business or affairs; regarding that party’s customers, employees, or other people doing business with that party;
which is by its nature confidential;
which is designated as confidential by that party at the time of disclosure or within 14 days after disclosure; or
which the other party knows or ought to know is confidential;
includes without limitation (unless excluded under paragraph (c) that party’s Intellectual Property Rights and these terms and conditions; but
does not include information to the extent that information is developed or known by the other party independently of this agreement and independently of any obligation of confidence (including because it is in the public domain).
Consumer Guarantee means a consumer guarantee applicable to this agreement under the Australian Consumer Law, (including any ‘express warranty’ within the meaning of section 2(1) of the Australian Consumer Law).
Content Management System (CMS) means the content management system described in Clause 16.
Services means the services to be provided under this agreement.
Service Provider’s Personnel means any person(s) that the Service Provider designates to perform the Services on the Service Provider’s behalf.
Consumer Guarantee means a guarantee applicable to the supply of goods or services which is incorporated into this agreement pursuant to division 1 part 3-2 of the Australian Consumer Law.
Contract IP means Intellectual Property created by the Service Provider in the course of performing its obligations under this agreement.
Deliverable means any goods or services to be supplied by the Service Provider pursuant to this agreement.
Facilities means working space, computer equipment, access to the internet and the Client’s computer network, telecommunications system etc, and includes not only access to such resources but also use of them to the extent required by the Service Provider in order to perform the Services.
Service Fee(s) means the fees set out in the Purchase Order, Proposal, Services Agreement, or otherwise. if no Fees are specified, Fees for all work we do in the course of the Project calculated in accordance with clause 37.
Force Majeure Event means any occurrence or omission as a direct or indirect result of which the Party relying on it is prevented from or delayed in performing any of its obligations under this agreement and which is beyond the reasonable control of that Party and could not have been prevented or mitigated by reasonable diligence or precautionary measures, including forces of nature, natural disasters, acts of terrorism, riots, revolution, civil commotion, domestic or global epidemic, domestic or global pandemic, industrial action and action or inaction by a government agency but does not include any act or omission of a subcontractor (except to the extent that act or omission is caused by a Force Majeure Event).
GST means a goods and services tax or similar tax levied in Australia.
GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property includes trademarks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former.
Insolvent in relation to a party, means that:
the party has ceased or taken steps to cease to conduct its business in the normal manner;
the party has entered into or resolved to enter into any arrangement, composition or compromise with or assignment for the benefit of its creditors or any class of them;
the party is unable to pay its debts when they are due;
a liquidator or provisional liquidator is appointed to the party, or a receiver, receiver and manager, official manager, trustee or similar official is appointed over any of the party’s assets or undertakings;
an application or order is made or a resolution is passed for the winding up of the party; or
an event similar to one in paragraphs (a) to (e) occurs in respect of the party in any non-Australian jurisdiction.
Intellectual Property Rights means all industrial and intellectual property rights anywhere in the world, including:
copyright, patents, trade marks, plant breeder’s rights, rights in circuit layouts, registered designs and any right to have confidential information kept confidential; and
any application or right to apply for registration of any of the rights referred to in (a).
Loss means
any liability, cost, expense, loss, personal injury (including illness), death or damage; and
in relation to a Claim, Loss includes amounts payable on the Claim and (whether or not the Claim is successful), legal costs and disbursements on a full indemnity basis.
Parties means the Service Provider and the Client, and Party means either one of them.
Personal Information has the meaning as defined in any applicable Privacy Law.
Privacy Law means any legislation or administrative requirement (as amended from time to time) imposing an obligation in relation to the collection, use, disclosure, storage and transmission of Personal Information which is applicable to a party in the performance of its obligations under this agreement, including without limitation any codes, principles or guidelines contained in or arising out of such legislation.
Moral Rights are defined in section 189 of the Copyright Act 1968 (Cth), and includes any similar rights in any jurisdiction outside Australia.
Project means, in relation to any work that we do for you:
the Project described in a Purchase Order;
if there is no Purchase Order, the project described in a Proposal;
if there is no Proposal, then the project described in the Specifications; or
if there are no Specifications, then the work that you have asked us to do.
Project Intellectual Property means designs, artwork, software and materials provided to you in the course of the Project, and any other Intellectual Property Rights created in the course of the Project, but does not include:
the Content Management System (except to the extent that we have modified it);
the Website Tools (except to the extent that we have modified them); or
Client Content.
Purchase Order means a document issued (in writing or electronically) by us to you that sets out:
the Services that we will provided to you;
the estimated times within which those Services will be provided; and
the Fees payable to us for those Services.
Proposal means a Proposal or an estimate that we provide to you in respect of any work that you have asked us to do.
Related Body Corporate has the meaning given in s 50 of the Corporations Act 2001 (Cth).
Specification means the specific Consultancy Services to be provided by the Service Provider under this Agreement. The Specification is set out in Schedule 1 of this Agreement.
Schedule of Fees means the rates and packages attached to this document, and any replacement of that professional services schedule released from time to time.
Services means the Services that we provide to you in the course of the Project, as described in Clause (4.) and where Services are referenced throughout the Agreement.
Specifications means specifications for the work that you have asked us to do, and that you provide to us before or at the commencement of the Project, or as developed during the discovery and/or creative stages.
Support & Maintenance Packages means the packages provided to supply paid maintenance and support services to assist in the management, maintenance, training for, and repair of a supplied/built/maintained Project as described in Clause 22.
Termination Date means the earlier of:
(a) the date of termination of this Agreement by the Client or the Service Provider; and
(b) the date of expiry of this Agreement.
Third Party Software means software as described in clause 18.
Title Guarantee means a guarantee pursuant to any of sections 51, 52 or 53 of the Australian Consumer Law.
Variation means changes to the Proposal, Specifications as described in Clause (9.) and elsewhere in this agreement.
Variation Notice means is the written notification regarding the costs associated with Variations as described in Clause (9.) and elsewhere in this agreement.
Warranty is any fix required to be supplied by Klyp as outlined in Clause 21. The determination of warranty labour is at Service Providers discretion.
Website means the website that we develop for you in accordance with .
Website Tools means the tools, applications or packages set out in Clause 4.
Interpretation
In this Agreement unless the context otherwise requires:
words importing any gender include every gender;
words importing the singular number include the plural number and vice versa;
words importing persons include firms, companies and corporations and vice versa;
references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this Agreement;
reference in any schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
the headings to the clauses and schedules of this Agreement are not to affect the interpretation;
any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or by-law made under that enactment; and
the word "including" (and related forms including "includes") means "including without limitation".
Scope of Work
The Service Provider is to provide the Client with the services outlined in the "Scope of Services", within a documented Services Agreement that the Client must sign or accept via email. Any additional services which are not included in the "Scope of Services" in that document or email will be quoted separately on a case by case basis. Any out of scope work will require written approval from the Client before the Service Provider can progress with the work. Once approval is received, the additional cost will be added to the next invoice produced by the Service Provider or will be invoiced separately where the additional work needs to commence prior to the next scheduled invoice being created.
Where the Scope of Services does not specify a certain number of minimum hours or time allocated for the engagement, the Service Provider will be governed by the Scope of Services and the deliverables within it, not by time spent. There will be no obligation on the Service Provider to provide reporting in relation hours or time spent on the engagement.
Proposals
If the Service Provider provides the Client with a Proposal for the Scope of Services, then that Proposal:
is based on the Client’s Specifications, and is subject to change if the parties agree to amend the Scope of Services;
provides cost estimates that do not include GST; and
is valid for a period of 30 days from the date the Proposal is issued, unless otherwise agreed by the Service Provider.
Engagement
The Client may engage the Service Provider to carry out the Scope of Services by:
signing and returning a Services Agreement to Service Provider;
or providing an authorised Purchase Order;
or in the case of smaller engagements, by written approval including email.
Unless the Service Provider notifies the Client otherwise, the Service Provider will accept that engagement, subject to these Terms and Conditions. The Scope of Services will commence in line with the agreed upon project schedule, or when the Service Provider accepts the engagement.
Services
The Service Provider offers a variety of services across consultancy, technology, development, cloud hosting, creative, design, and marketing.
The Client acknowledges that electronic services are subject to interruption and breakdown, and all non-electronic services are subject to disruption, and therefore:
the Services will not be error-free or uninterrupted; and
the Client’s access to the Services and the operation of the Services will not be error-free or uninterrupted.
Retainer Agreements
Ongoing services and/or technical support can be provided on a retainer basis.
Where the Client has engaged the Service Provider on a continuous basis as part of a retainer, the Client must engage the Service Provider for the minimum initial period set out in the Services Agreement.
Unless other terms have been agreed to, full payment is required in advance as per the agreed monthly retainer fee, before any work is undertaken. Work undertaken outside of a retainer agreement will be quoted and invoiced separately, as agreed upon in writing between the Client and the Service Provider.
The Service Provider will use its best endeavours to use the full budget allocated, however if the full amount is not spent by the end of the relevant period, the Client will not be entitled to a refund, nor will the Client be entitled to set off any unspent amounts against any future payments or services unless otherwise agreed.
Hours of Service
All Services will be carried out between 8:30am and 5:00pm (local office time), Monday to Friday excluding public holidays and the Christmas / New Year closure periods.
Location
The Service Provider will provide the Services in places and locations as the Service Provider considers appropriate to the type and nature of the requirements of the Client
Overtime
All service fees are based on a reasonable time schedule, and may be revised to take into consideration the Client’s requested “Priority Scheduling”. Requested priority schedules that require overtime and weekend work will be subject to time-and-half of our standard hourly rates. Overtime is defined as between 6.00pm – 7.30am Monday to Friday, all day Saturday, Sunday and public holidays, unless otherwise agreed.
Content and Materials Supplied by the Client
The Client must supply all Required Materials (as defined by the Service Provider through the course of delivering the Services) that the Client wants the Service Provider to use in the delivery of the Scope of Services, and all other content and materials that the Service Provider reasonably requests (Client Content) within 48-hours.
The Client must supply all Client Content in the following digital format/s:
general text/copy: Microsoft Word or Rich Text (clearly labelled and in correct order);
tables: Microsoft Excel (clearly labelled and in correct order);
product or formatted data: Unless a template is provided by The Service Provider, the Client shall provide their own Microsoft Excel (Clearly labelled and in correct order). Depending on the project, some data might still need to be collated or processed into a different format. The Client agrees to adjust their data set and collate this in the required format provided by the Service ProviderMicrosoft Excel (clearly labelled and in correct order);
images: high resolution where possible (JPEG, TIFF or PNG files);
logos: vector format (EPS or AI);
diagrams/maps: vector format (AI) or (JPEG files, high resolution where possible);
if required, access to the Client’s current website and database via SSH, ftp and/or CMS/hosting control panel login;
research, data or analytics applicable to the project;
brand style guidelines (if applicable);
tone of voice guidelines (if applicable);
font files (with proof of licences, if applicable).
The Service Provider may charge Additional Costs if the Client Content is not provided in the appropriate format, or if material is not supplied when requested.
The Client warrants that the materials or content that the Client provides to the Service Provider, or that are provided to the Service Provider on the Client’s behalf, will not:
breach any rights (including Intellectual Property Rights or Moral Rights) of any third party; or
compromise the security or operation of our computer systems, through a virus or otherwise.
The Client indemnifies and agrees to keep the Service Provider, its directors, officers and employees indemnified, against all loss arising out of the breach of any rights (including Intellectual Property Rights and Moral Rights) of any third party in connection with materials or content that the Client supplies to the Service Provider, or that are supplied to the Service Provider on the Client’s behalf.
Variations and Additional Costs
If during the course of the service engagement there are any changes in the Scope of Services, the changes will be treated as a Variation.
Where a Variation occurs, the Service Provider reserves the right to halt work and review the project costs. The Service Provider will discuss the Variation with the Client and where required, will issue a Variation Notice which is to include the modifications to the Scope of Services, any associated costs and any changes to the delivery dates. The Service Provider will not proceed with the Services until the Service Provider receives the Client’s approval to proceed.
Examples of Variations include:
Introduction of additional requirements not discussed during the discovery stage (i.e. branding deliverables, introduction of video requirements, data entry required, additional features);
Changes in the Specifications during the design stage (i.e. additional pages requiring design, additional design elements/features etc.);
Costs for commercial fonts, photography, audio and video that were unknown during the scoping stage;
Additional pages, features, functionality etc. required / introduced in the development/technology stage;
Customisation of the CMS/System or building an extension not specified in the approved design, Specifications or database schema/architecture;
Additional project or account management time;
Unplanned delays in obtaining approval, Client Content or feedback resulting in the Service Provider having to reschedule projects, staff or facilitate continuance;
Overtime required to meet deadlines due to delays by the Client providing approval, Client Content or feedback.
It is the Service Provider’s process to include project management time in all quotes, but from time to time the Service Provider is required to not only project manage it’s internal team, but also manage the Client’s team. This is generally not known at the time of quoting and may be treated as a Variation.
If during the course of the service engagement there are small changes in the Scope of Services, the Service Provider will contact the Client and provide an estimate of the Additional Costs for these small changes and a variation invoice issued once complete.
Where possible, the Service Provider will attempt to obtain approval from the Client prior to undertaking the additional work. However, in some cases due to deadline and availability constraints, this may not be possible and the Service Provider may proceed with the work without obtaining approval.
Additional Costs will be quoted and invoiced separately, as agreed upon in writing between the Client and Service Provider.
Examples of Additional Costs include:
Content not in the appropriate format;
Extra workshops or workshops requiring additional hours;
Requested additional design concepts / alterations;
Requested changes to the design after final approval has been requested or provided;
Uploading and styling/layout of additional Client Content;
Additional training sessions, additional training session attendees or training at the Client’s premises;
Additional meetings and travel time.
Purchase of Stock Images, Fonts, Photography, Audio or Video
Unless specified in the Proposal, the Service Fees do not include any searches or purchase of stock images, commercial fonts, photography, audio or video.
The Client can provide stock images, commercial fonts, audio or video, or the Service Provider can purchase them on the Client’s behalf. When any stock images or commercial fonts are purchased on the Client’s behalf, the Service Provider will be the licence holder and the image or font can only be used under the terms of the licence/s.
The Client indemnifies and agrees to keep the Service Provider, its directors, officers and employees indemnified, against all Loss arising out of the breach of these licences.
Any stock image costs will be confirmed with the Client first, and then added as an additional charge to the invoice.
Costing for any font, photography, audio or video required will be provided for approval separately via a Variation Notice.
Ownership of the finished photography, audio or video will be transferred to the Client upon full payment of all issued invoices.
The Service Provider retains ownership of all working files.
Client Approval
Client approval may be required for a number of items (Approval Item) presented to the Client, as part of the service delivery.
When the Service Provider provides the Client with any Approval Item, the Client must notify the Service Provider in writing whether the Client does or does not accept the Approval Item.
The Client will be deemed to have accepted the Approval Item if the Service Provider does not receive a response from the Client within 2 business days.
The Client’s acceptance of the completed Approval Item in accordance with paragraph (b) or (c) means that the Approval Item is complete, and no further amendments are necessary. However, the Service Provider will not proceed to the next Stage of the Project until the Service Provider receives the Client’s approval to proceed.
There may be Additional Costs in having to reschedule projects, staff or facilitate continuance due to unplanned delays in obtaining approval. If unable to perform continuance, the Client may have to pay a shut down and subsequent restart fee commensurate to the labour and resource costs incurred.
Scheduling, Production and Project Management
If the Service Provider considers it to be necessary, the Service Provider will develop a production schedule for the Scope of Services. the Service Provider will use reasonable commercial endeavours to carry out the Scope of Services in accordance with that schedule.
If the Client delays in providing approval, Client Content or feedback the Service Provider requires, then this may result in:
a change in the delivery deadline set out in the production schedule; or
if the delivery deadline cannot be changed, a Variation Notice will be issued, including necessary overtime costs
Consultancy Services
The Service Provider may provide the Client with Consultancy Services, including but not limited to the following the following areas:
Management Consulting
Strategy & Advisory
Operations
Financial Performance
Technology & Digital
Sales, Marketing & Public Relations
Legal, Tax & Compliance
Sustainability & Responsibility
Transformation & Change
Mergers & Acquisitions
Startup & Launch
Consultancy Services engagements may be structured as standalone products or projects, or ongoing retainer-based engagements
The Consultancy Services will be performed by the employees or agents that Service Provider may choose as most appropriate to carry out the Consultancy Services
The Service Provider is permitted to use other persons or subcontractors to provide some or all of the Consultancy Services.
The Service Provider is responsible for the work of any of the Service Provider’s subcontractors.
Subject to clause 8(d), any work undertaken by any of the Service Provider’s subcontractors will be undertaken to the same standard as stated in this agreement and the Specification.
To the extent that the terms of any subcontract stipulate a higher standard for any of the Consultancy Services than the standards set out in this agreement (including as to timing or quality), any Consultancy Services provided by the relevant subcontractor will be governed by the terms and conditions of that subcontractor’s subcontract.
During the preparation of the Specification and performance of the Consultancy Services the Client will:
cooperate with all persons, representatives, contractors and other 3rd parties as the Service Provider reasonably requires;
provide the information and documentation that the Service Provider reasonably requires;
make available to the Service Provider such Facilities as the Service Provider reasonably requires; and
ensure that the Client’s staff and agents cooperate with and assist the Service Provider.
The Client will not charge the Service Provider for the use of facilities made available by the Client
If the Client does not provide the Facilities that the Service Provider Ltd reasonably requires (and within the time period) to perform the Consultancy Services, then any additional costs and expenses which are reasonably incurred by the Service Provider will be paid by the Client.
Marketing Services
The Client acknowledges that the Marketing Services provided by Service Provider are not an exact science and that Search Engines, Media Services, Social Media Platforms, Platforms, and providers are constantly changing and evolving, and that the Service Provider has no control over these changes.
The Service Provider will deliver the Marketing Services utilising best practice strategies and up to date techniques, and will make recommendations to best achieve the Client’s goals, but cannot guarantee results.
The Service Provider will endeavour to seek approval from the Client for material prior to publication, but this may not always be possible due to time constraints, deadlines and access to the appropriate authority.
Advertising Spend (otherwise known as ‘Media Budget’) that is charged by various third party advertising providers (EG: Google, Facebook, Twitter, etc) will be invoiced directly to the Client by the relevant provider. The Service Provider will not collect these amounts on the advertising provider’s behalf. The Client acknowledges that if these third party invoices are not paid within the agreed payment terms, advertising campaigns may be halted by the third party advertising provider, and this may impact the Service Provider’s ability to provide Services, but will not waive the Service Provider’s right to invoice the Client for the Services.
The Service Provider will perform the Marketing Services as specified in the Proposal or as agreed in writing with the Client, utilising the specified providers and/or platforms, for the specified term.
The Client indemnifies and agrees to keep the Service Provider, its directors, officers and employees indemnified, against all Loss arising from actions taken performing Marketing Services.
The Service Provider cannot be held liable and accepts no responsibility for being unable to perform the Marketing Services due to lack of client resources or access.
The Service Provider may be required to work alongside another agency or third party provider. The Service Provider cannot be held liable and accepts no responsibility for being unable to perform services due to faults or defects in any service provided by third parties.
The Service Provider reserves the right to charge Additional Costs caused by the Client's instructions, lack of instructions, interruptions, mistakes, work for which the Service Provider is not responsible, changes to the requirements, expectations or hardware and software environment, and extra work required caused by faults or defects in any service provided by a third party.
Design
The Service Provider’s design services will include:
Delivery to the Client of one design concept (or as specified in the Proposal); and
One round of feedback and alterations.
Concepts may be presented with positional photos, fonts and copy. Searching for new photos/fonts and typesetting beyond the time allocated in the Proposal will result in Additional Costs.
Upon completion of the alterations, the Service Provider will supply an updated version of the design concept to the Client.
If the Client requests additional concepts or alterations, or requests changes to the design after final approval has been requested or provided, the work will incur an Additional Cost.
The work referred to in paragraph (c) does not include a change to the Specifications which will be treated as a Variation.
Ownership of the finished design will be transferred to the Client upon full payment of all issued invoices.
Service Provider retains ownership of all working files.
A copy of the working files can be requested from the Service Provider. The Service Provider is under no obligation to provide the working files, however at its discretion may provide the working files for a fee.
Copywriting
The Service Provider’s copywriting services include the presentation of one round of content and one round of alterations for each piece of content.
Ownership of the finished content will be transferred to the Client upon full payment of all issued invoices.
The Service Provider retains ownership of all working files.
Development/Technology
The Service Provider’s development and technology services will be derived from the Proposal and Services Agreement, the technical specifications, and the final deliverables from discovery and design stages.
The Service Provider’s development and technology services may include uploading and styling/layout of the Client Content to the developed software. If applicable, the Service Provider will complete a specified number of standard pages or screens of the software. If the Service Provider completes additional pages or screens for the Client, the additional work will incur an Additional Cost.
A Content Management System (CMS) may be provided as part of the Project. Unless otherwise specified in the Services Agreement, the Service Provider’s services do not include customisation of this CMS, its extensions, plug-ins or components.
For any customisation required:
The work will be a Variation;
The customisation, extension, plug-in or component remains licensed under the original author or Service Provider; and
The Client accepts and must comply with the CMS terms and conditions in relation to the Client’s use of the customisation extension, plug-in or component.
The Client acknowledges that the CMS and many of its extensions, plug-ins and components are provided by third parties, and therefore:
The Service Provider has limited control over the functionality or operation of the CMS and its extensions etc; and
The Client accepts and must comply with the terms and conditions of those third parties relating to the CMS.
A Standard Page or Screen is: up to 500 words, up to 3 images and up to one implementation of any tabular data.
The design and development of electronic direct mail (eDM’s) have many limitations and do not work and function like a website or page. Any solution will need to conform to any limitations of the email carrier, email client and technical requirements, as a result the solution might differ from the design.
Unless otherwise specified in the Services Agreement or as agreed in writing with the Service Provider, the Service Provider retains ownership of the Intellectual Property of any custom applications.
The Client acknowledges that the Service Provider is free to reuse any code, inventions, extensions, plug-ins or components and the Client grants the Service Provider an indefinite perpetual licence to use, re-sell and modify.
Ownership of the finished deliverable will be transferred to the Client upon full payment of all issued invoices.
The Service Provider retains ownership of all working files.
Unless otherwise agreed for all apps being uploaded to an app store (iTunes, PlayStore, Windows App Store), Service Provider will be listed as the “developer”. If in the event the Client wishes to be the “developer” with their own account, the costs to action such transfer will be an Additional Cost.
The Client acknowledges that the software that is developed by the Service Provider may run on third party platforms, software and environments and therefore if any of these third party platforms, software or environments make an update or discontinue operations that this may cause the Client’s software to breakdown, be interrupted or not operate at full functionality.
Third Party Software
The Service Provider may provide Third Party Software as part of the Project. The Client acknowledges that:
The Service Provider has limited control over the functionality or operation of the Third Party Software;
If the third parties provide data or other information for use with the Software, the Service Provider has no control over the accuracy or completeness of that information;
The Client accepts and must comply with the terms and conditions of the Third Party Software providers; and
Those Third Party Software providers may invoice the Client directly for ongoing costs relating to the Client’s use of the Software.
The Fees for the Third Party Software may change from time to time. The new prices not supplied directly by the provider will apply from the date that Service Provider notifies the Client.
Public Relations
While the Service Provider will distribute acceptable Content to various media outlets, the Service Provider makes no guarantee that any Content will be published or in any other way used by any third parties to whom it is sent, and the Service Provider makes no representations or warranties whatsoever in relation to any potential improvement in search engine rankings or similar potential benefits.
Ownership of Software, Programs, and Platforms
Certain software, programs, and/or platforms will belong to either the Client or the Service Provider, depending on the requirements. This will be discussed prior to signing the Services Agreement.
If using the program, for example VWO for AB testing, the account will be set up under the Client's email with an additional user for Service Provider. All billing will be under the Client's name and the account will belong to the Client.
All other programs will be on a case-by-case basis as discussed with the Service Provider.
If the Client does not have an existing Facebook Business Manager or Ads Manager account, the Client will need to create one under Service Provider’s instructions.
Training
The Scope of Services may include training sessions of varying length, content and outcomes. Training sessions will be conducted in one of the Service Provider’s offices or via video conference with no more than 3 attendees.
If additional training sessions are required, or the Client wishes to have additional attendees at a training session, or require training at the Client’s office, there may be an Additional Cost.
Warranty
Unless otherwise agreed and outlined in the Service Proposal, and subject to the overall duration and complexity of the Services, the Service Provider provides a twenty (20) business day period for Client Testing. During this time the Service Provider provides two (2) rounds of testing and feedback and two (2) subsequent rounds of code fixes.
Service Provider provides a limited Warranty Period for a further twenty (20) business days.
The limited Warranty Period will commence twenty (20) business days after the project is handed over for the Client’s Testing. If data entry is required then the Warranty Period will commence thirty (30) business days after the project is handed over for Client Testing.
Extended warranty periods can be negotiated during the Discovery Stage and outlined in the Specifications, and/or Service Proposal.
All identified bugs must be reported within the Warranty period.
It is the Client’s responsibility to review and test the software and ensure the Client is satisfied with it during the testing and warranty periods.
Any modifications that are not defined as a bug for the purposes of this warranty will be quoted separately.
Any bugs that fall outside the warranty period will be quoted separately.
When open source software, such as October CMS, WordPress, MySQL, PHP and Apache, is used to build and host websites, the Service Provider cannot guarantee that these open source software products are error-free. Any work required to address bugs, version or system updates, are not included under the Warranty and will be quoted for separately.
Any bug fixes or changes required as a result of upgrades to mobile operating systems like iOS, Android or Windows, are not included under the Warranty and will be quoted for separately.
Any bug fixes or changes required as a result of upgrades to Search Engines or system upgrades, are not included under the Warranty and will be quoted for separately.
Unless otherwise specified in the Services Agreement, Warranty will only apply to:
the latest two (2) browsers versions for Chrome, Firefox, Safari, Edge
the latest two (2) operating systems for Android and iOS
the latest two (2) device versions for Android (Samsung & Pixel) and iOS (iPhone)
the latest two (2) versions of Outlook and Google Mail for electronic direct mail (eDM’s) and/or templates
when handed over for Client Testing.
The determination of warranty labour is at the Service Provider’s discretion.
Technical Support and Maintenance
Retainer services may include technical support and maintenance, based on the Client’s ongoing requirements.
Service Provider’s support and maintenance services do not include resolving:
Issues that relate to the Client’s networks, email, computer systems or software;
Other technical issues not arising directly from the Software.
The Client may be required to provide to the Service Provider, at the Client’s own cost, access to the Software and the Client’s computer network and any systems required in order for the Service Provider to provide the support and maintenance services. If the Client does not provide the Service Provider with such access within a reasonable time after Service Provider requests it, then:
The Service Provider is not obliged to provide the Client with any support & maintenance services; and
The Service Provider is not obliged to return to the Client any portion of the Fees that the Client has paid to the Service Provider for the provision of support & maintenance service.
Technical Support & Maintenance Retainer fees will be priced according to the Client’s scope of requirements.
Technical Support & Maintenance Retainers are not designed for major creative, technology, development or marketing tasks, but rather for tasks that can be completed within a maximum of forty (40) hours. Any work that will require more time than this to complete will require a Proposal and Service Agreement.
Estimated costs to complete requested technical support and maintenance tasks may be provided when, and if possible, at the Client's request.]
Commencement of support tasks will start upon receipt of written support brief/request, confirmation of cost/value estimate provided (where required and possible) and availability of value remaining on the Support & Maintenance Retainer for that month.
Support & Maintenance Retainer activities are limited to Software and Services created by the Service Provider.
Hosting
If the Service Provider provides hosting services, those hosting services are governed by Service Provider’s Hosting Terms and Conditions, which can be found at
https://hostking.com.au/terms-and-conditions.
Domain Name Services
The Service Provider does not represent or warrant the availability, suitability or registerability of any domain name.
The Service Provider will not, at any time, assume any liability whatsoever in respect of the use of any domain name. Any disputes arising must be resolved between the parties involved.
The Client must not transfer a domain name to another internet service provider, registrar or provider unless the Client has first paid all issued invoices to the Service Provider in full.
When a domain name is due for renewal, the Service Provider will issue an invoice with at least fourteen (14) days notice. If the invoice is not paid prior to the due date, the Service Provider cannot guarantee the continuance of the domain name.
Software Implementation Services
The Service Provider’s software implementation services will be derived from the Proposal and Services Agreement, and the scope of requirements and specifications.
The Service Provider’s software implementation services will be based on the information provided when scoping the project. The Service Provider reserves the right to charge Additional Costs caused by the Client's lack of instructions, interruptions, mistakes, work for which the Service Provider is not responsible, changes to the requirements or expectations, and extra work required caused by faults or defects in any service or software provided by a third party.
The Client acknowledges that the Service Provider is free to reuse any custom integrations or custom applications that the Service Provider develops as part of the software implementation project.
Unless otherwise specified in the Services Agreement or as agreed in writing with the Service Provider, the Service Provider retains ownership of the IP of any custom integrations
The Service Provider will take appropriate measures to ensure the privacy and security of the Client’s customer data that is housed within the software program(s) being implemented.
The Client acknowledges that the software and many of its extensions, integrations, and components are provided by third parties, and therefore:
The Service Provider has limited control over the functionality or operation of the software program and its integrations, etc.; and
The Client accepts and must comply with the terms and conditions of those third parties relating to the software program.
The Client acknowledges that if any third party software or platforms make an update or discontinue operations, that this may cause the Client’s software to break down, be interrupted or not operate at full functionality.
Under the Notifiable Data Breach (NDB) scheme, the Service Provider must notify affected individuals and the OAIC about an eligible data breach. An eligible data breach occurs when:
there is unauthorised access to or unauthorised disclosure of personal information, or a loss of personal information, that an organisation or agency holds
this is likely to result in serious harm to one or more individuals, and
the organisation or agency hasn’t been able to prevent the likely risk of serious harm with remedial action
If the Service Provider suspects an eligible data breach may have occurred, it will as quickly as possible, assess the incident to determine if it is likely to result in serious harm to any individual.
A data breach that occurred before 22 February 2018 is not an eligible data breach for the purposes of the NDB scheme.
