- Provision Of Services
a. Although provision is made for you to execute this document, execution is not necessary in order for this Agreement to be binding on the parties. This Agreement can be accepted by you and consequently become binding by virtue of any of the following (without limitation):We will provide you with the Services and Materials in accordance with the terms of this Agreement from the Effective Date until such time as the Services and Materials are delivered, or this Agreement is terminated in accordance with clause 20 (Term)
b. electronically, via “click and accept” forms and online windows
c. giving further instructions to us and acting in a manner which would suggest that you agree to be bound by the terms of this Agreement
- Charges For Services
a. In return for the provision of the Services and Materials you agree to pay us:
b. the Deposit Amount prior to us commencing any work (if applicable);
c. the Fees; and
d. any Expenses.
e. Where it is practical to do so, we will endeavour to obtain your consent before incurring any Expenses, however your liability is not contingent on us doing so.
f. We will invoice you for the Fees and Expenses in accordance with the terms set out in the Quote.
g. You must pay any invoice issued by us within 7 days of receipt to the bank account nominated in the invoice, or as otherwise indicated on the invoice.
h. If you request to pay by direct debit, you acknowledge that any invoice becomes immediately payable upon being issued and you give us authorisation to automatically debit your credit card for all payments when and as they become due.
i. All invoices issued by us will be inclusive of GST, unless otherwise indicated, but will not include any other taxes, duties or charges imposed or levied in Australia or overseas in connection with the supply of the Services and we will be entitled to invoice you, and you agree to indemnify us, should we become liable for any for such taxes, duties or charges.
a. Where you have engaged us on a continuing basis to perform any of the Services (Retainer), you must engage us for the minimum period set out in the Quote (Minimum Period).
b. Services provided pursuant to a Retainer will commence at the beginning of the next Billing Period after the date of this Agreement. If you require a Retainer to begin earlier, the Fees will be prorated accordingly.
c. We will use our best endeavours to use the full budget allocated, however if the full amount is not spent by the end of the relevant period you will not be entitled to a refund, nor will you be entitled to set off any unspent amounts against any future payments or services.
d. If it becomes apparent that the Fees for the Retainer are not appropriate for the services required, the Fees may be adjusted up or down accordingly during the retainer period by agreement between the parties acting in good faith.
e. We may agree, at our discretion, to suspend a Retainer on your request for a maximum period of one month.
- Consequences of Non-Payment
a. If you fail to make payment under this agreement when due, then, without prejudice to any other rights we may have, we may:
b. charge interest on any outstanding amount due under this Agreement at a rate of 4% per month; and
c. suspend the provision of the Services,
d. until such time as the particular payment is made by you in full (together with any interest).
e. If you elect to pay by direct debit, it is your responsibility to ensure that your payment details are kept up to date and that there are sufficient funds in your nominated account to cover payments as they become due.
f. You will be liable for any reasonable costs incurred by us in recovering any unpaid amounts under this Agreement, including but not limited to any legal, bank or collection agency fees.
- Additional Services and Variations
a. If you would like to vary the Services or Materials or request additional services, you must provide us with written notice, setting out your request and all relevant details.
b. If we agree to your request, we will issue you with a new Quote.
c. The Quote must be agreed to and signed by both parties before we commence any work.
d. If notice is not provided under clause 5.1 for whatever reason, we reserve the right to charge you additional fees at the Hourly Rate for any time we spend carrying out work requested by you in addition to the Services and Materials contemplated in the Quote.
e. Unless we notify you otherwise, the terms and conditions of this Agreement will also apply to any variations or additional services.
- Delivery of Services
a. We will provide the Services and Materials with all due care and skill and in a timely manner, however you acknowledge that the quality of the Services and Materials we provide is dependent on your full co-operation and the accuracy and completeness of any instructions, or materials you provide us.
b. Any Completion Dates are estimates only and we will not be held liable for any Loss suffered by you as a result of any failure to meet Completion Dates and any reliance you have made on any estimated Completion Dates.
c. Where the Quote indicates that Acceptance Tests are required, you must not unreasonably withhold Acceptance.
e. any failure to pass the Acceptance Tests results from an act or omission on your part; or
f. you use any part of the Services or Materials for any revenue-earning purposes or to provide any services to third parties other than for test purposes; or
g. you unreasonably delay the start of the Acceptance Tests or any retests for a period of seven Business Days from the date on which we are ready to commence running such Acceptance Tests or retests; or
h. you unreasonably delay Acceptance for a period of more than 30 days from the date of the Acceptance Tests were completed;
i. then Acceptance will be deemed in respect of the relevant Service or Materials.
j. You warrant to us that:
k. you will promptly respond to any requests made by us for additional documentation, information, consents, or assistance relevant to the delivery of the Services;
l. you will not cause the delivery of the Services to be unreasonably delayed.
- Domain Names
a. We will only use our preferred registrar (Registrar) to register, or renew a domain name.
b. Registration and renewal of domain names are subject to the terms and conditions of the Registrar and we will not be liable in any way for any decision of the Registrar and you agree that any application or registration fee paid by you is non-refundable.
c. You are responsible for renewing your domain name, unless we expressly agree to arrange for the renewal.
d. You may cancel a registration up to 24 hours after the domain name has been registered. Fees may apply for cancellation of a registered domain name.
e. We accept no responsibility in respect of the use of a domain name by you and any dispute between you and any other individual or organisation regarding a domain name must be resolved between the parties concerned and we will take no part in any such dispute.
a. Where you elect to host your website yourself, or with a third party supplier, you will be bound by the terms and conditions of the third party supplier and we will not be responsible for the maintenance and uptime of the website (including updates and security checks), nor for resolving any bugs or other issues that may arise. If you require our assistance with such services, we will charge additional fees at our Hourly Rate.
b. You are responsible for all content, materials or data that you post, upload or store on a website or email account hosted by us (Content) and all transactions or other activities conducted though, or on any website or email hosted by us. We have no obligation to monitor or manage the Content and exclude all liability arising from or in connection with the Content.
c. You warrant to us that any website or email you request we host will only be used for lawful purposes. In particular, you warrant and undertake to us that you will not, nor will you authorise or permit any other person to knowingly or recklessly post, link to or transmit any material which:
d. is unlawful, threatening, abusive, harmful, malicious, defamatory, violent;
e. encourages violence, obscene, pornographic, profane or is otherwise objectionable in any way;
f. contains a virus or other malicious computer program;
g. breaches the Spam Act 2003 (Cth);
h. could reasonably constitute or encourage a criminal offence, give rise to civil liability;
i. is misleading or deceptive; or
j. that violates or infringes any trade mark, copyright, other intellectual property rights or similar rights of any person under the laws of any jurisdiction.
k. You will not yourself, and will ensure that none of your end users, make excessive use of a website we host to our detriment or that of our other clients.
l. You will keep secure any identification, password and other confidential information relating to your account and your website and you will notify us immediately of any known or suspected:
m. unauthorised use of your account;
n. breach of security; or
o. loss, theft or unauthorised disclosure of your password information.
p. You will conform to any instructions or standards issued by us from time to time regarding the use of any website you request we host and you agree to provide us with any information relating to the website and your use of it.
q. You acknowledge that we may refuse to accept any data, information requests or instructions where we believe acceptance may result in a breach of any of term of this Agreement.
r. Whilst we will use reasonable endeavours to ensure the integrity and security of any website or email account we host, you acknowledge that matters outside our control may affect the security and performance of the Services and we do not warrant or guarantee that:
s. any website or email account we host will be free from unauthorised users or hackers;
t. our virus protection services will stop every virus from reaching your computer network; or
u. that the Services will be error free, or free from interruption, or failure,
v. We reserve the right to suspend, require changes or disable as necessary any web site, account, database, or other component at any time without cause.
- Website Design And Development
a. You acknowledge that the quality of the Services and Materials are dependant on your input and the accuracy and completeness of your instructions. If you are not satisfied with any initial concept designs, you may request additional designs in accordance with the process set out in clause 5. As per Australian Consumer Law we are not required to provide you with a refund if you change your mind about the services you asked for/contracted us for. We will therefore not provide a refund, or further designs without charge, unless we are required by law to do so. In some cases an offer of credit to use on an alternative service may be offered at our discretion.
- Website In A Day Packages
a. The provisions of clause 9 equally apply to any “Website in a Day” packages.
b. Where you purchase the “Website in a Day” package, we will, subject to clause 10.3, use our reasonable endeavours to provide you with a completed website within one Business Day.
c. If we advise at the time that we issue you with a Quote, that due to the volume or complexity of the work, the website is unlikely to be completed within one Business Day, we reserve the right to charge additional fees at our Hourly Rate for any work we are unable to complete, despite our reasonable endeavours, within the hours of 9am to 5pm in one Business Day.
d. We require written notice at least 2 Business Days prior to a scheduled ‘build’ day if you wish to cancel or reschedule a “Website in a Day” package. Failure to provide notice will incur an administration fee of $250+ GST.
e. If, after reviewing materials you provided to us, we consider that the materials are insufficient, or unsuitable in any way, we may reschedule the build to another day that suits both parties.
- Online Services
a. Where the Services include search engine optimisation, or pay per click, we will use reasonable endeavours to improve the position of your website in the relevant search engine results in response to a search request, however we cannot guarantee that:
b. your website will achieve any particular ranking; or
c. your website will receive increased traffic, or clicks.
d. Where the Services and Materials include social media marketing, developing marketing strategies, or other online marketing services, we will use our reasonable endeavours to successfully promote you, your business, an event, or the particular campaign (as applicable), but we do not guarantee increased exposure, public awareness, or any particular outcome from our Services or the Materials.
a. Where you have engaged us to assist you with a crowd funding campaign, we will use our reasonable endeavours to promote the campaign, however we do not guarantee that the campaign will be successful, that you will achieve any target amount of contributions, or any other objectives you may have, even if you have previously communicated these to us.
b. In addition to any Fees and Expenses, we may, if specified in the Quote, charge you a percentage of gross revenue (prior to any taxes, stamp duty, regulatory fees, legal fees, deductions, expenses or offsets of any kind) you receive pursuant to a crowd funding campaign we assist you with.
c. Where you have agreed to pay us a percentage of campaign revenue and you terminate this Agreement before the campaign is completed, or you do not receive any revenue from the campaign for whatever reason, we will charge you for our time spent assisting you with the campaign at our Hourly Rate.
d. You agree, on our request, to provide us with all financial records in connection with any crowd funding campaign we assist you with.
- Design Services
a. You must provide us with a detailed design brief prior to us commencing any design work and be available for questions and to review any plans throughout the design process.
b. We will not commence printing until we receive your written approval of the relevant design(s). If you request any modifications, or changes at this stage, you must do so in accordance with the process set out in clause 5.
- Technical Support
a. If you request any support or assistance regarding the use, operation or implementation of the Services, or Materials, we may charge you for our time at our Hourly Rate.
b. Support tickets must be lodged with us according to the process set out on our website at www.creativecollective.com.au/support-maintenance from time to time.
c. We will provide an estimate of costs at the time you lodge a support ticket. If the issue requires more time than expected, we will advise you of any additional fees.
a. For the purposes of this clause “Confidential Information” means any information disclosed to either party relating to their businesses, customers, suppliers, employees, plans, designs, processes, trade secrets or software, passwords and usernames and any other information that is by its nature confidential or that a reasonable business person would consider confidential, but does not include information that is in the public domain, otherwise than by a breach of these confidentiality obligations, or information independently produced by a third party.
b. Neither party may disclose any Confidential Information to a third party, unless required to do so by law, in which case they must where possible, give the other party reasonable notice and opportunity to challenge such disclosure.
c. Each party agrees to use all practical steps to protect the Confidential Information and ensure it is not disclosed to anyone other than its employees or persons acting on its behalf to perform its obligations under this agreement.
d. Each party must immediately notify the other if it believes that there has been unauthorised access to, or disclosure of any Confidential Information.
e. This confidentiality undertaking will continue to remain in force after this Agreement has ended.
- Intellectual Property
a. All Intellectual Property created for the purposes of providing you with the Services or Materials will vest in us upon creation.
b. Nothing in this agreement transfers, or assigns interests in any Intellectual Property to you.
c. We will grant you a non-exclusive, transferable, irrevocable, royalty-free, fully paid up licence in perpetuity to use any of our Intellectual Property that is incorporated, or integral in the Services, or Materials to the extent necessary to receive the Services or Materials.
d. To the extent necessary for us to provide the Services or Materials, you grant us a non-exclusive, non-transferable, royalty-free, fully-paid-up licence in perpetuity to use your Intellectual Property.
e. You warrant that the use and development of any Intellectual Property you provide us in connection with this Agreement, will not infringe the intellectual property rights of any third party and you indemnify us against any Loss arising out of or in connection with a breach of this clause.
- Awards and Acknowledgement
a.Without limitation to any other rights we have in respect of the Materials, you agree that we may submit, showcase or promote any Materials for the purposes of:
b. Industry design competitions and awards; and
c. promotion of our business and services on any marketing channel.
a. Except to the extent required by law, or as explicitly provided in this agreement, we make no representations or warranties in relation to the provision of the Services, or Materials and expressly exclude any warranty that the Services, or Materials will improve your business profitability or publicity.
b. Our liability under this agreement for any single or series of related events giving rise to a cause of action shall be limited to an amount equal to the Fees and Expenses for those Services or Materials to which the cause of action relates, or the replacement of such Services or Materials.
c. We will not be liable to the extent that any Loss was caused or contributed to by you, by a third party, or by circumstances outside of our control.
d. You agree to indemnify us fully against any and all Loss arising from, or in connection with a breach of this Agreement, or any other act or omission committed by you, or any of your employees, agents or contractors.
- Title to Materials
a. We will deliver any Materials to you in the format agreed in the Quote. If you request any additional copies of the Materials, or if you wish to receive the Materials in a different format, we may charge additional fees at our Hourly Rate.
b. Legal and beneficial title in any Materials delivered to you remains with us until you pay all outstanding Fees and Expenses.
c. You acknowledge that by means of our retention of title in the Materials we have a security interest in the Materials for the purposes of the Personal Properties Security Act 1999 (Cth) (PPSA), and you agree that we may register a Purchase Money Security Interest (PMSI) in respect of the Materials on the Personal Property Securities Register.
d. You agree to do all things necessary to ensure the security interest is an enforceable and perfected PMSI for the purposes of the PPSA, including obtaining any waivers or agreements from any third parties that may effect our security position, time being of the essence.
e. To the extent permitted by the PPSA you waive your rights to:
f. receive a notice under any of subsections 114 and 148 of the PPSA;
g. receive a statement that includes the information referred to in 177(1) of the PPSA; and
h. redeem collateral after default under section 133 of the PPSA unless we agree in writing to such redemption.
i. To the fullest extent permissible under any law, we reserve the right to be indemnified from you for any costs incurred in taking any action pursuant to our rights under this clause.
a. We may terminate this Agreement at any time and without cause by providing you with 14 days written notice.
b. Without limiting the above termination rights and any other rights or remedies we may have against you arising out of or in connection with this Agreement, we may terminate this Agreement effective immediately upon us providing you with written notice, if you:
c. go into liquidation or are wound up or become insolvent or have a receiver appointed over all or any substantial part of your assets;
d. propose or enter into any schemes or arrangements with your creditors;
e. become unable to pay your debts as and when they fall due;
f. dispose of the whole or any part of your assets, operations or business other than in the ordinary course of business;
g. fail to pay the Fees and Expenses or any other amounts payable to us under this Agreement by the due date for payment; or
h. fail to remedy within seven days after written demand for remedy has been made by us, any breach or non-observance or non-performance of the covenants, conditions and obligations imposed on you pursuant to this Agreement.
i. If you wish to terminate this Agreement, you must complete a cancellation form, available on request from [email protected] (Cancellation Form). Neither verbal nor emailed instructions to terminate this Agreement will be valid notice of termination.
j. Termination will take effect:
k. on the last day of the month following the Billing Period in which we receive a duly completed Cancellation Form if the Services are provided pursuant to a Retainer (You may not terminate the Retainer before the end of the Minimum Period); or
l. 14 days from the date we receive a duly completed Cancellation Form in all other circumstances.
m. On termination of this agreement all Fees and Expenses will become immediately payable. We will not have any obligations to provide you with access to or copies of any Materials, incomplete or otherwise, until payment is made and we will be entitled to immediately block any website we host, post a notice in respect of its non-availability and remove all data located on it. We will hold such data for a period of 14 days and allow you to collect it, at your expense, failing which we will be entitled to delete all such data.
n. If you would like us to back up your website or transfer it to another provider, you must select the appropriate option on the Cancellation Form and pay a fee of $60. If you opt to pay the back-up fee, we will hold a copy of your backup for 90 days, in which case a copy will be provided for you to download before the expiry date. Where you do not opt on your cancellation form to may the backup fee, your files will be removed from our servers after 30 days post your cancellation. We cannot guarantee that a backup can be provided after 30 days if you do not opt for the backup.
o. If we are required to provide migration assistance to a new supplier, we may charge additional fees at our Hourly Rate.
a. Except where expressly provided otherwise in this Agreement, any notice to be given by either party to the other may be sent by either email, fax, post or courier to the address of the other party as appearing in Quote, or such other address as a party may from time to time have communicated to the other in writing.
b. Correspondence sent by:
c. email will, unless the contrary is proven, be deemed to be received on the day it was sent;
d. fax will be deemed to be served on receipt of an error free transmission report;
e. post or courier will be deemed to be served two days following the date of posting.
a. The interpretation and construction of this Agreement will be governed and determined in accordance with the law of the State of Queensland and the parties submit to the non-exclusive jurisdiction of the courts of that state.
b. You may not assign any of your rights or obligations under this Agreement, without our prior written consent, which consent may be given or withheld or given subject to such terms and conditions in our absolute discretion. We may assign any of our rights and obligations by providing you with notice of the assignment.
c. We may vary this Agreement at any time by giving you 14 days’ written notice.
d. The non-exercise of or delay in exercising a right of a party will not operate as a waiver of that right, nor does a single exercise of a right preclude another exercise of it or the exercise of other rights. A right may only be waived by notice, signed by the party (or its authorised representative) to be bound by the waiver.
e. Each party to this Agreement will do all things and sign, execute and deliver all deeds and other documents as may be legally necessary or reasonably required of it by notice from another party to carry out and give effect to the terms and intentions of this Agreement. This includes any acts required to perfect, protect and preserve the rights of the other parties to this Agreement.
f. This Agreement will, so far as possible, be interpreted and construed so as not to be invalid, illegal or unenforceable in any respect, but if a provision on its true interpretation or construction is held to be illegal, invalid or unenforceable:
g. that provision will, so far as possible, be read down to the extent that it may be necessary to ensure that it is not illegal, invalid or unenforceable and as may be reasonable in all the circumstances so as to give it a valid operation; or
h. if the provision or part of it cannot effectively be read down, that provision or part of it will be deemed to be void and severable and the remaining provisions of this Agreement will not in any way be affected or impaired and will continue notwithstanding that illegality, invalidity or unenforceability.
i. This Agreement supersedes all prior negotiations, contracts, arrangements, understandings and agreements with respect to the subject matter. There are no representations, undertakings, warranties, covenants or agreements between the parties express or implied except as contained in this Agreement.
23. Definitions and Interpretation
a. In this Agreement:
b. Acceptance means an acknowledgement by you (written or otherwise) that an Acceptance Test has been successfully completed.
c. Acceptance Tests means tests carried out in regards to the Services and any Materials to ensure functionality and compliance with the Quote.
d. Billing Period means the period beginning on the first of the month and ending on the last day of the month.
e. Business Day means any day (other than a Saturday, or Sunday, or a public holiday in the State of Queensland) in which the banks in Brisbane are usually open for business.
f. Client means the person named in the Quote.
g. Completion Date means any date specified in the Quote for the delivery or completion of the Services, or otherwise indicated by us.
h. Deposit Amount means an amount (if any) payable prior to the commencement of Services as set out in the Quote.
i. Effective Date means the date specified in the Quote for commencement of the Services.
j. Expenses means any out of pocket expenses properly incurred by us on your behalf or in respect of the provision of the Services or Materials including (without limitation) travel and accommodation, image licence fees, software licence fees, courier and postage fees and printing expenses.
k. Fees mean the Fees for the Services and Materials set out in the Quote.
l. Hourly Rate means our standard hourly rate as amended from time to time.
m. Intellectual Property means copyright, design, process, trademark, formula, invention, model, business name, domain name, patent, trade secret and any other intellectual property right of any nature whatsoever throughout the world (whether registered or unregistered and including all applications and rights to apply for the same).
n. Loss means in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether direct or indirect.
o. Materials means any materials, or deliverables specified in the Quote, or which are integral in the Services.
p. Quote means a document provided by us and signed by the parties setting out the Services and Fees and any applicable specifications or other special clauses.
q. Services means the services set out in the Quote.
r. Unless otherwise provided, in this Agreement:
s. the singular includes plural and vice versa and any gender includes every gender;
t. a person includes corporations, trusts, associations, partnerships, a government authority, and
u. other legal entities, and where necessary, includes successor bodies;
v. writing includes printing, typing, facsimile and other means of representing or reproducing words,
w. figures, drawings or symbols in a visible and tangible form, in English;
x. months mean calendar months;
y. references to statutes include statutes amending, consolidating or replacing the statutes referred to and all regulations, orders-in-council, rules, by-laws and ordinances made under those statutes;
z. sections of statutes or terms defined in statutes refer to corresponding sections or defined terms in amended, consolidated or replacement statutes;
aa. headings and the table of contents are used for convenience only and are to be disregarded in the interpretation of this Agreement;
ab. an agreement or document is to that agreement or document as amended, novated, supplemented or replaced from time to time; and
ac. a party includes that Party’s executors, administrators, substitutes, successors and permitted assigns.
24. Fair Play Policy
We operate a fair use policy for various elements of our hosting and support services. The fair play policy is designed to ensure that one client doesn’t not monopolise resources on our service, or using our staff thereby degrading speed or service of other clients on that serve
a. Unlimited Hosting Bandwidth
Server space is divided between clients primarily based on disk space allocation and the amount of resources that the site needs to use to operate smoothly. The most notable fair use case relates to bandwidth on our shared hosting accounts. Bandwidth is set to ‘unlimited’ but The Creative Collective reserves the right to upgrade your package should your website use more than 1000GB in Bandwidth resources on a regular basis and to the detriment of other clients’ sites.In most cases our clients need not worry about their usage as the vast majority will not affect other sites.For clients who persistently go over our fair use limits, we will work with them to ensure they are moved on to the most relevant hosting package for their needs in order to protect resources for our other clients and provide guaranteed resources for the high user.
b. $20 Support Hours Fair Use
If you have opted to add on $20 support hours to your month hosting package, than our fair use policy will apply.
$20 Add-on support hours do not roll-over if unused and can only be used on only basic website edits such as text or image changes, upload of blog content etc. $20 support hours cannot be used for new functionality development, fixing of issues or any complex website requests.Clients utilising their $20 support hours should be mindful that full rate paying clients will take priority, so hours are not suitable for urgent or emergency updates. Clients should expect completion of requests utilising these hours in 1 – 3 days.
Support hours will expire on the last calendar day of the end of the month. Requests should be made prior to the end of the month to avoid this, and normal turn around times will apply.
Should clients continuously abuse, stretch or request use of the $20 Support Hours where they are not to be used, or this policy, The Creative Collective reserves the right to charge time at our normally hourly rate of $120 + GST or denie the allowance of $20 support hours.
A client can opt to add a maximum of 2 hours support time to their hosting plan per month.
If you have any questions regarding this policy, please do not hesitate to contact us.