WEBSITE DESIGN AND DEVELOPMENT SERVICES AGREEMENT

Where a word is capitalised and in bold, it is found in the Scope of Work attached (Scope of Work).

1. Engagement

We agree to provide the Services in relation to the Website in accordance with the following terms and conditions and the Scope of Work attached (the Agreement).

2. Our Services

Except where stated in clause 17, our Services do not otherwise extend to maintenance and support services for your Website. IfyouwishtoengageustoprovidemaintenanceandsupportforyourWebsitethanstatedinclause17,you may elect to engage us to do so in accordance with our separate Maintenance and Support Agreement. Please also note that unless expressly stated in the Scope of Work, our Services do not include copyright, SEO research and optimisation or video production. If you require assistance with any of these services, please contact us and we can provide an additional scope of work and quote.

3. Sub-contractors

We reserve the right to engage sub-contractors of our choice to assist us in providing the Services. We shall be fully responsible for their work and remuneration unless otherwise agreed between us.

4. Delivery Dates

We use all reasonable endeavours to provide our Services and deliver any relevant Deliverables in accordance with the Timeline, however due to events outside our control or that are not foreseeable at the time of entering into this Agreement, you acknowledge and agree that the delivery dates in the Timeline may change.

5. Client Materials

You agree to provide us with complete, constructive and timely information, instructions, materials (including Your Content), feedback and approvals wherever sought by us, including in our initial briefing questionnaire. You acknowledge that your failure to do so, may result in a delay in our delivery of Services to you.

Prior to us commencing any Services for the Website, you must provide us with ‘final and approved versions’ of any content we request or you wish for us to incorporate into the Website including high resolution logo, website copy, images, videos, SEO meta data and sound recordings (Your Content). You hereby grant us the right to use Your Content in relation to the Services. You also warrant that you have obtained all necessary rights (including any relevant third party trade mark, copyright and moral rights consents) to allow us to use Your Content in relation to theServices. You indemnify us for any Loss suffered by us should a third party make a Claim against us in relation to our use of Your Content as permitted by this Agreement.

6. Revisions

We may require your feedback on certain draft Deliverables. Where we request your feedback on a draft Deliverable, you will have the opportunity to request a maximum of two sets of revisions to that Deliverable. We will incorporate your feedback, to the extent we consider appropriate in our professional judgment. We reserve the right to charge for further sets of revisions or where you require revisions which are outside the Services set out in the Scope of Work. If you fail to give feedback in relation to a draft Deliverable within 7 days of delivery, your acceptance of that draft Deliverable without any revisions will be deemed given.

7. Testing

If our Services include developing the Website, the following terms apply:

User Acceptance Testing

If listed as part of the Services, we will carry out user acceptance testing of the Website to determine whether the Website has been completed in accordance with any relevant Specifications (Acceptance Testing). You must provide us with notice of acceptance or rejection of the Website within 7 business days of our completion of the Acceptance Testing. If you fail to give notice within this time period, your acceptance will be deemed given. You agree that you will not unnecessarily withhold consent when the Website meets any relevant Specifications.

Desktop Browser Testing

Since desktop browsers have different capabilities, you acknowledge and agree that the Website may appear differently on various browsers. We will test the Website in current versions of major desktop browsers including those made by Apple (Safari), Google (Chrome), Microsoft (Internet Explorer) and Mozilla Firefox. We will not test the Website on non-current, out of date or abandoned website browsers however if you do require this, please let us know and we can provide an additional scope of work and quote for this testing.

Device Browser Testing

Since mobile browsers have different capabilities, you acknowledge and agree that the Website may appear differently on various devices. We will test the Website on popular small-screen devices such as the latest versions of iOS: Safari and Android: Google Chrome and Firefox. We do not test the Website on Blackberry, Opera Mobile or other mobile browsers however if you do require this, please let us know and we can provide an additional scope of work and quote for this testing.

8. Fees and Out of Scope Work

In consideration for us providing the Services, you agree to pay the Fees. You acknowledge that the Fees are an ‘estimate only’ and subject to change. You agree that we may charge up to 10% more than the Fees set out in the Scope of Work, without notice to you and without your approval. Otherwise we will seek your approval before increasing the Fees.

If you require us to supply additional goods and/or services not listed as Services in the Scope of Work (leading to an increase in work required by us) (Out of Scope Work), you agree that we will charge additional fees to cover the Out of Scope Work (Out of Scope Charges). We will seek prior approval from you for all Out of Scope Charges. Out of Scope Charges will be included in the definition of Fees for the purpose of this Agreement.

9. Expenses

In addition to the Fees, you agree to pay the Expenses. You acknowledge that we may need to incur additional expenses not listed in the Scope of Work, when providing the Services. Where practicable, we will seek your approval prior to incurring any additional expenses including without limitation the purchase of stock, photos, printing, courier costs and graphic art supplies (Additional Expenses). However, you acknowledge that this may not always be possible and certain expenses may be required to be incurred urgently. You agree to pay for all Additional Expenses reasonably incurred or otherwise approved by you.

Where we are required to manage the services of any third party provider as part of the Services (a Third Party Provider), you agree that we are entitled to charge an administration fee of 30% of the Third Party Provider’s service fees.

10. Payment Terms, Deposit and GST

We will invoice you for the Services in accordance with the Payment Terms or at other suitable intervals determined by us. Where a deposit is listed in the Payment Terms (the Deposit), you must pay this in full before we will commence work. We do not provide refunds for ‘change of mind’.

You agree to pay all of our invoices within 14 days of receipt, by bank transfer or via the Stripe payment system according to the details nominated on the invoice. We reserve our right to suspend work on the Services if you have not paid an invoice on time and we also reserve the right to charge interest at a rate of 5% per annum more than the rate from time to time fixed by the Penalty Interest Rates Act 1983 for all late payments. Interest is to be calculated daily, continues until the overdue money is paid and is capitalised monthly. You acknowledge that ‘time is of the essence’ when paying our invoices under this agreement. You agree that we are not required to make the Website ‘go live’ until all applicable Fees and Expenses have been paid in full.

All Fees and Expenses are exclusive of GST unless otherwise indicated. You will be required to pay GST where we supply you with a valid tax invoice requesting GST.

11. WordPress

The Website shall be or is built on WordPress, an open source content management system (CMS) platform (the Platform) and we implement a variety of plugins provided by WordPress and other developers (such as PayPal, Woocommerce, Gravity Forms and Facebook) to extend and improve the Website’s functionality (Plugins). It is therefore possible that the Website may be disrupted by an event outside of our control (for example, if the Platform ‘goes down’ or Plugins are deleted or restricted).

12. Intellectual Property

Subject to clause 11 and 12 of this Agreement and unless otherwise agreed by us in writing, we retain exclusive ownership of all intellectual property (including copyright) in the Deliverables; draft and development work created by us in the course of providing the Services and in our pre-existing processes, technology, copyrights and information (jointly the Five IP). Five IP excludes any of Your Content and Third Party IP. Upon payment of the Fees and any Expenses in full, we shall grant you a licence to use the final versions of the Deliverables which may include a newly developed Website, if stated in the Scope of Work (Final Deliverables), and any incorporated Five IP subject to any Special Conditions.

You acknowledge and agree that:

We may incorporate intellectual property owned by third parties in relation into the Website such as intellectual property forming part of the Platform and Plugins, stock images, fonts, source code and other licensed materials (Third Party IP); and
Your use of the Third Party IP as part of the Website is subject to terms imposed by the relevant third party owner (Third Party Licences). You shall be responsible for maintaining and paying for all applicable Third Party Licences unless otherwise notified by us.

Provided you have paid us in full for all monies owing under this Agreement, you are free to make or authorise others to make, modifications to the Final Deliverables (Modifications). You agree to release us and our representatives from all Loss and Claims suffered by you or any third party in relation to the making of any Modifications.

13. Credits and Promotion

Unless otherwise agreed by us in writing, where we have designed and built the Website as part of our Services, you agree to provide us with a credit on the Website, that the “Website was designed and built by Five Creative”.

Unless you otherwise notify us in writing, we reserve the right to reproduce, publish and communicate parts of the Final Deliverables for our self-promotional purposes, including online and in print (for example on our social media sites, on our own website and in show-reels). By entering into this Agreement, you also provide us with a licence to use your name and trade mark as part of any client list we may publish, including on our website.

14. Cancellation & Termination

Subject to clause 10 (where you agree our Deposit is non-refundable for ‘change of mind’), if you wish to cancel our Services and terminate this Agreement for ‘change of mind’, you must provide us with 14 days’ written notice.

Either you or us (the Terminating Party) may terminate this Agreement if the other person breaches a term of this Agreement and fails to remedy the breach within 7 days of receipt of written notice from the Terminating Party.

Where this Agreement is terminated above, we will invoice you for our Services performed up to and including the termination date with such final amount to be determined by us taking into account any payments already made by you. You will also be liable to pay for all expenses, third party costs and service fees that we have incurred or have committed to incur in relation to the cancelled Services. Where this Agreement is terminated and we have already provided you with partial or completed Deliverables, we may revoke your rights to use some or all of these.

15. Australian Consumer Law, Liability and Indemnity

Where you acquire our Services as a Consumer, our Services come with Consumer Guarantees. To the extent permitted by law, our liability to you for any Loss or Claim suffered by you in respect of any of our acts or omissions under or in connection with this Agreement, including in respect of our failure to comply with any Consumer Guarantees, is limited to, at our election:

Supplying the Services again; or
Paying the cost of having the Services supplied again.

Subject to the above and to the extent permitted by law, we will never be liable to you for any Consequential Loss you suffer arising from or in connection with your use of the Services and the Website including without limitation where the Website is not available or the Website’s security is compromised.

You are liable for and indemnify us against any Loss (excluding Consequential Loss) or Claim suffered by us in respect of any breach by you of this Agreement and the exercise of our rights under this Agreement pursuant to such breach.

16. Disclaimers

Nothing in this clause overrides any rights you may have under clause 15, under the Australian Consumer Law or otherwise at law.

You agree the following:

We do not warrant that you (or other users) will have functional, uninterrupted, bug-free or continuous access to the Final Deliverables, nor that the Final Deliverables will be free of technical faults or viruses or other risks to security (collectively Interruptions), because:
1. this is dependent on the steps that you take to maintain the Final Deliverables;2. we build websites on the Platform and use Plugins, all of which we do not make or control; and
3. there are many factors that may cause Interruptions that are outside of our control such cyber security events and low quality internet.
We are not responsible for any direct or indirect Loss or Claim you may suffer as a result of any Interruptions.

17. Support and Maintenance

Where our Services including developing the Website, during the first one (1) month following the ‘go live’ date of the Website, we agree to provide you with a total of up to four (4) hours of reasonable technical support and assistance (on a complimentary basis) to maintain and update the Website (Complimentary Support). We will then bill you for any support or assistance you require after the Complimentary Support, at rates to be advised by us.

You agree that you are responsible for maintaining the Website and ensuring its security at all times unless you enter into a Maintenance and Support Agreement.

18. Miscellaneous

This Agreement constitutes the entire agreement between the parties and cannot be altered except in writing signed by both parties. This Agreement will be governed by and construed in accordance with the laws of Victoria, Australia. The parties submit to the exclusive jurisdiction of the courts of Victoria, Australia. The terms of the Scope of Work override the body of these terms and conditions to the extent of any inconsistency. If any provision of this Agreement is determined for any reason to be unenforceable or invalid, that provision will be read down and if not capable of being read down, then it will be deemed to be severed from this Agreement and will not affect the validity and enforceability of any remaining provisions. The Special Conditions are incorporated into this Agreement, are binding on the parties and override any terms in the body of this Agreement in the event of any inconsistency.

19. Definitions

The following definitions are used in the Agreement:

a. Australian Consumer Law, Consumer and Consumer Guarantees have the same meanings as in the Competition and Consumer Act 2010 (Cth) Schedule 2;

Consequential Loss means special, incidental, indirect or consequential damages, loss of revenue, anticipated savings, profits, goodwill, reputation, interest or business, but specifically excludes legal and other professional costs of the parties;
Loss means loss, damage, liability, charge, expense, payment or cost of any nature or kind, including all legal and other professional costs (calculated on an indemnity basis); and
Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature.