1. WHY DO WE HAVE THIS AGREEMENT?
1.1 We have this agreement is to formalise services we will be providing and the terms and conditions upon which we will be providing those services.
2. THE SERVICES WE WILL PROVIDE
2.1 We will perform the Services outlined in the Schedule:
(a) with due care, skill and diligence;
(b) in accordance with all relevant legislation, regulations and requirements of authorities at the time.
2.2 The Services will be performed personally by us or Our Representatives.
2.3 You authorise us to act as your agent in relation to the Services and all matters set out or implied into this Agreement.
2.4 We agree to:
(a) keep you informed of progress of the Services; and
(b) keep all your documents secure and return all documents at the termination of this Agreement.
3. VARIATIONS AND ADDITIONAL SERVICES
3.1 After the Commencement Date, if you require any changes to the Services, or to add additional services, you must notify us as soon as possible, and we may provide you with an amended Proposal and Our Fees, or terminate this Agreement at our discretion.
3.2 Additional charges will apply for any Non-Inclusions and any additional services not included in our Services as set out in the Schedule.
3.3 We will notify you as soon as possible if we need to vary the Services or this Agreement in any way and negotiate any costs that may be incurred in writing.
4. YOUR OBLIGATIONS
4.1 You must provide all information required by us in order for us to perform the Services, this includes all brief, budget, timeline, data, content and all other information we request (“information”).
4.2 You represent and warrant that:
(a) all information you provide is true, correct, current;
(b) any material you provide to us does not infringe any third party Intellectual Property Rights;
(c) you will respond promptly to any of our requests for further information, or request for approvals, and within 7 days;
(d) you have read and understand that the Non-Inclusions do not form part of the Services; and
(e) the Client Representative has full authority to make all your decisions related to the Services.
4.3 You acknowledge and agree that the Non-inclusions are not included in the Services;
4.4 You must:
(a) supply us with your ABN, and all relevant login details;
(b) inform us of any previous work undertaken and any issues;
(c) promptly check all work we deliver and let us know any errors to the best of your knowledge; and
(d) in relation to website or app design, inform us of any known plugin errors or incompatibility and any 3rd party software requirements.
4.5 You further acknowledge and agree that:
(a) in the event you do not respond to us or cooperate with us for more than 3 months, your account will be considered a dormant account (“dormant”);
(b) even if your account becomes dormant, you must continue to pay the hosting and domain charges;
(c) where there is no communication or cooperation for over 12 months, we will remove the Services from the web but will hold your information offline for a further 12 months. If you do not respond or communicate with us in that period, we will permanently delete all your information and any product which was created as a result of the Services;
(d) in the event you would like to re-engage us after your account has been dormant, an additional fee will apply. The fee will depend on amount of time the account was dormant;
(e) in the event you would like additional services or would like to change the agreed upon scope, we will provide you with a new quote;
(f) we may, at our discretion, discontinue providing the Services at any time where your account is dormant, and you will remain liable to pay the Total Fee.
4.6 We may become aware during the performance of the Services that you may need additional services, and you agree to co-operate with us in this regard by negotiation of services and any costs that may be incurred.
4.7 We will make recommendations of consultants and suppliers, and may brief and co-ordinate consultants and suppliers on your behalf, however, at all times, any engagement of a consultant or supplier is a contract between you and that third party and you are responsible for all payments to that third party, and we are not to be involved.
5. THE FEES YOU NEED TO PAY
5.1 You agree that you will pay us Our Fees for the Services.
5.2 A Deposit is due on signing the T&Cs within the timeframe specified in the Proposal. The Services will not commence until the Deposit has been paid. The Deposit is non-refundable regardless of Service delivery.
5.3 We will invoice you for Our Fees each week.
5.4 We will also charge you Additional Fees for the Additional Services.
5.5 All Invoices are due within 7 days of the final invoice, unless payment terms have been agreed in writing at proposal stage. Any failure to pay invoices on a payment plan on the designated date or within 5 working days will invalidate all payment plans and make all payments on invoices due immediately. Interest will be charged on any unpaid invoices at the rate of 10% per annum overdue. Any legal collection fees that are incurred will be charged to you. Any loss of earnings or administration fees incurred in collection including time spent on legal appointments/hearings will be charged to you.
6. CANCELLATIONS AND REFUNDS
6.1 To the extent permitted by law, any refunds for any cancellations of the Services are at our absolute discretion.
6.2 We do not provide refunds for your change of mind, or where you failed to provide us with adequate information or clearly explain your needs, or where you have failed to act on our advice.
6.3 The Deposit is non-refundable regardless of Service delivery.
7. THE AUSTRALIAN CONSUMER LAW AND WARRANTIES
7.1 You are entitled to various consumer guarantees, rights, and remedies under the Australian Consumer law in the Competition and Consumer Act 2010, including, but not limited to, consumer guarantees that the services are delivered within a reasonable time and with acceptable care and skill.
7.2 Except as required by law, we do not make any further guarantees, including but not limited to that your sales or revenue will increase, or that your website traffic or app downloads will increase or your social media engagement will increase.
7.3 Whilst we endeavour to ensure any website or app does not contain viruses or damaging components, we cannot guarantee your website or app or any third party apps and software will be uninterrupted, timely, secure or error free. You use any third party apps and software, including any downloading, installing, using modifying or distributing them at your own risk.
8. OUR INSURANCES
8.1 We maintain professional indemnity and public liability insurance and will provide a certificate of currency on request.
9. INTELLECTUAL PROPERTY AND PUBLICITY
9.1 We own or have a license to use all Intellectual Property Rights in any materials we may provide you throughout the performance of the Services.
9.2 We assign to you all the Intellectual property Rights developed by us during the performance of the Services for your personal or business use after payment of services has been received.
9.3 You permit us to photograph and/or video you, and use your business name and logo testimonial for marketing and information purposes, or publications, exhibitions and professional awards. You must seek our prior written consent before any publication of information about our Services.
9.4 You own the data within the website and the website on completion and release. The source code used to build the website and software installed to create the website is the property of us and can be reused by Trondez.
10. LIMITED LIABILITY AND INDEMNITY
10.1 The terms in this Agreement that exclude or limit our liability will apply only to the extent permitted by law. Provisions of the Australian Consumer Law and other statutes from time to time in force cannot be excluded, restricted or modified or can only be restricted or modified to a limited extent.
10.2 This Agreement must be read and construed subject to any such statutory provisions. If any such statutory provisions apply, then to the extent to which we are entitled to do so, our liability under those statutory provisions will be limited, at our option to:-
(a) the replacement of the goods or services or the supply of equivalent services; or
(b) the payment of the cost of replacing the goods or services or of acquiring equivalent goods and/or services.
10.3 In any event, our liability is limited to the amount of the invoice you have paid.
10.4 You agree and acknowledge that we are not liable for any direct, indirect, consequential or incidental loss or damage which may result from the Services. This includes, but is not limited to any loss, personal injury, death, negligence, loss of profits, revenue, salary, property damage, loss of enjoyment, virus or damage to your systems, or reliance on our Services.
10.5 In any case, our liability to you will not exceed the amount actually paid by you to us for the most recent invoice we have sent you that has been paid.
10.6 You acknowledge, agree and undertake that you shall be the legally responsible party for any conduct by you in respect of any legal proceedings and you agree and undertake to indemnify us and keep us at all times fully indemnified from and against any Claims whatsoever arising directly or indirectly as a result of any breach by you of this Agreement, any conduct by you in using our Services, any breach of third party Intellectual Property Rights, and any third party claims, such as third party app or software claims.
10.7 You further indemnify us, and keep us indemnified from and against any Claims arising directly or indirectly resulting from reliance on your instructions and any errors, omission or use of the work that is the product of the Services after the Services have been delivered.
11.1 We may either suspend the Services, or terminate the Services where:
(a) where you fail to provide information in response to our requests within 14 days;
(b) where your account is dormant;
(c) where you fail to pay our invoices within 7 days unless written notification has been received from you and agreed by Trondez;
(d) you request additional services and we are unable to complete the Services in accordance with the Proposal; and/or
(e) due to the negligence or inefficiencies of other consultants or suppliers additional work and/or time is required for us to perform the Services; and/or
11.2 Where we suspend the Services, and you request that we recommence the Services, we will provide an amended Proposal and amended fees.
11.3 We may also, at our option and without prejudice to any of our rights, immediately terminate this Agreement where you default on any of our invoices, breach this Agreement, or commit an act of bankruptcy.
11.4 Upon termination by either party, you must pay to us all accrued Fees owing on work completed up to the date of termination. All work completed will be released to you on payment of said invoices and Trondez will not be held liable for any use of the work from the release date.
11.5 Clause 9, 10 and 12 and 13 survive termination of this Agreement.
12. IF THERE IS A DISPUTE
12.1 If at any time any aspect of the Services are not reasonably acceptable to you or we disagree on the quality or substance of the Services you will immediately notify us of any such reason, the specifics and will give a reasonable opportunity for us to respond and address any concerns.
12.2 If a dispute arises, you acknowledge and agree that confidentiality is paramount to our reputation. At no time will any communications or discussions be made public, including but not limited to any social media websites. Any public discussion or comments considered defamatory, negative or otherwise damaging and will be the subject of compensation in any mediation or litigation claim.
12.3 In the event of any dispute that cannot be resolved, both parties agree to obtain an independent professional arbitrator/dispute resolution specialist such as the Australian Dispute Centre to make a determination on the dispute and each party agrees to pay their own costs.
13. THE GOVERNING LAW AND OTHER MATTERS
13.1 This agreement completely states the agreement of the parties as to its subject matter. It supersedes, and its terms govern all previous communications, representations, inducements, undertakings, agreements and arrangements between the parties in respect of its subject matter.
13.2 This Agreement may not be modified or amended except in writing signed by both parties.
13.3 If any Services have been provided by us before the data of signing of this Agreement, the parties agree that this Agreement applies retrospectively.
13.4 The failure by us to exercise any right, or enforce any provision in these Terms does not waive the future operation of that right or provision.
13.5 In the event that a provision in this Agreement is not enforceable, such provision shall be severed from this agreement to the extent permitted by law, and the remaining provisions will remain in full force and effect.
13.6 This Agreement must not be transferred or assigned without the prior written consent of the other party.
13.7 This Agreement is governed by the laws from time to time in force in the state of QLD Australia. Both parties agree to unconditionally submit to the non-exclusive jurisdiction of the courts of QLD for determining any dispute concerning this Agreement.
“Additional Services” means any services beyond the scope of the Services.
“Agreement” means these terms and conditions, and the Schedule including the Proposal and Our Fees.
“Claim” means any claim under statute, tort, contract or negligence, any demand, awards or costs.
“Commencement Date” means the date this Agreement is signed or the date that the services commenced, whichever is the earlier, and is described in the Schedule.
“Intellectual Property Rights” means all trademark, copyright, design rights, patents, trade secrets, confidential information and all other intellectual property rights whether registered or unregistered.
“Our Representatives” means any of our directors, officers, employees, independent contractors, agents, consultants, advisors, and other representatives.
All other capitalised terms are defined in the Schedule.