Consultant means Design Identity Pty Ltd

 

Deliverables means all services to be delivered in accordance with the client’s specifications as defined 

 

Development means the time from commencement of work to the first date on which the Consultant makes the site available for testing by the client.

 

Round of Changes means one or more amendments to the existing concept but does not include design of a new concept.

 

Services means those services defined in the project proposal including but not limited to:

a) Web Design/Development - creation of artwork, designs, illustrations, concepts, specifications, photographs, electronic files, programs and/or other materials;

 

Testing means the time from when the Consultant first makes the site available to the client online until the date that the site goes live.

 

Development Process

1) The parties agree that the site will be developed in accordance with the following process:

a) Consultant will provide all Services and deliver the Deliverables in accordance with the proposal.

b) During Development Consultant will be responsible for all work undertaken.

c) Upon reaching Testing, Client will be responsible for all user testing.

d) Client will undertake user testing in a timely manner and report any and all bugs to Consultant as soon as they reasonably become aware of them.

 

Timeframes

2) The parties agree that any timeframes provided by the Consultant are estimates only and are in no way binding upon Consultant.

3) The Client acknowledges:

a) That various stages of development and testing rely on timely responses from Client and other third party providers outside of the control of the Consultant.

b) That a failure by the Client or any third party to provide timely responses will result in delay on the project.

 

4) The Client agrees that it is not relying no completion of the Work in accordance with the written estimate provided by Consultant and that it will indemnify and hold the Consultant harmless against any and all claims relating to delay in completion of the Work.

 

Fees

5) Client agrees to pay the fee specified in the project proposal by way of consideration for the Services.

 

Payment

Projects undertaken under a proposal with quotation

6) Client agrees to pay all payments in accordance with the following schedule:

a) 50% of the fee upon commencement of testing of the site; and

b) 50% of the fee upon completion, prior to transferring the source/project files live.

 

Content

7) The parties agree that:

a) Client will be responsible for uploading all content.

b) All information, copy and pictures must be supplied in digital format. Text must be supplied in

Microsoft Word or Notepad only;

c) Images resourced on request will be charged at an additional cost, at an hourly rate;

d) If hardcopy information is supplied, typing and/or scanning is at an additional cost;

e) Any scanning and/or major image preparation work outside of the above details will be at an additional cost.

 

Approval

8) Client will provide approval of any concept provided by the Consultant within 72 hours of receipt unless otherwise agreed between the parties.

9) A failure by the Client to respond within the above timeframe will be deemed to be acceptance of the concept unless otherwise agreed.

 

Changes

10) The parties agree that

a) All changes must be within the scope of the project proposal.

b) Any changes outside the scope or in addition to the proposal will be charged at an additional hourly rate to be agreed prior to commencement of work.

c) Once the website or application has been built, the Client will have ten (10) days to conduct testing and provide feedback. The site will be deemed completed and signed off after this time period and the site warranty period will come into effect.

d) Additional services that may be required such as further photography specifically requested royalty music or other services related to the Deliverables, will be authorised by Client and billed in addition to the Fee.

e) Any changes made by the Client without consultation with the Consultant will be at the risk of the client and the Consultant will not be in any way responsible for such changes.

 

Intellectual Property

11) The parties agree:

a) That upon payment of the Fee, Consultant will transfer to Client all intellectual property rights to the website and design in the look and feel of the website; and

b) That all non-unique elements relating to the design of the website and source code will remain the property of Consultant.

12) The Client grants the Consultant a license to:

a) Display the completed work in their portfolio.

b) Display an image of the completed work on their website.

 

Client Warranties

13) The Client represents as follows:

a) That the Client has the full and unrestricted right to make this agreement, and that the signatory of this. Agreement is duly authorised by the Client to enter the Client into this Agreement.

b) That all Assets will be supplied proper permission and rights and will not infringe on any international statutory, common or third party rights and/or any statutory, common or third-party rights.

c) That the Assets will contain no matter contrary to current international law and/or the current laws of

Australia.

d) That the Services and/or Materials requested of the Consultant will not infringe on any international statutory, common or third party rights and/or any statutory, common or third-party rights within

Australia.

e) That the Services and/or Materials requested of the Consultant will not be contrary to current international law and/or the current laws of Australia.

f) That the Client will have the right to use the likeness of any and all the persons whose likeness is supplied as part of the Client Assets, and has the right to grant the Consultant the use of such likeness.

g) That the Client will indemnify the Consultant, hold the Consultant harmless from, and assume full responsibility for any and all claims and/or actions arising from the beach of the Client’s warranties, including but not limited to court actions, legal proceedings, legal fees, liabilities, judgments and/or any and all other costs and/or penalties.

h) That the Client has engaged the Contractor to provide work with sufficient time for production allowing for development and any possible delays and that the Client will not hold the Contractor responsible for any losses associated with delays in delivery of the work, regardless of whether those delays are caused by the Client or the Contractor.

i) Where the Client is engaging the Consultant for E-marketing, that the Client has obtained appropriate consents from all parties to whom the Client is sending email and that the emails have not been purchased from a third party.

 

Consultant’s Warranties

14) Consultant represents as follows:

a) That the Consultant has the full and unrestricted right to make this agreement.

b) That the Services and Materials provided to the Client will not infringe on any international statutory,

c) That the Consultant will indemnify the Client and hold the Client harmless from any and all claims arising from the breach of the Consultant’s warranties except where caused by Client breach of the

Client's warranties, including but not limited to court actions, legal proceedings, legal fees, liabilities, judgments and/or any and all other costs and/or penalties.

d) That the Consultant will provide warranty on work for up to sixty (60) days from the completion date where bug fixes for work contained in the project brief will be done free of charge.

e) Not withstanding the warranty provided in clause.

d) The warranty will be void at the Consultants absolute discretion where Client or their agent or representative makes any modifications to the code provided by the Consultant.

 

Termination

15) The parties agree that:

a) This Agreement may be terminated by either party by 72 hours notice in writing to the other party.

i) Where Client terminates the project prior to completion, all works undertaken by Consultant in accordance with the Proposal prior to notice of termination will be charged at an hourly rate;

ii) Where Consultant terminates the project prior to completion under circumstances where Client has committed a material breach of this Agreement, all works undertaken by Consultant in accordance with the Proposal prior to notice of termination will be charged at an hourly rate.

iii) Where Consultant terminates the project prior to completion at their own discretion, the

Consultant will provide a full refund of all Fees paid for services provided by Consultant.

 

Confidentiality and Non-Disclosure.

16) This Agreement creates a confidential relationship between Client and Consultant. During the term of this Agreement, Client and Consultant may each have access to and become acquainted with various proprietary information concerning the other party’s business affairs, strategies, future plans, markets, clients, relationships, vendors, finances, properties, methods of operation, designs, concepts, computer programs, employees, documentation, and other such information whether written, oral, or otherwise (the “Trade Secrets”), and agree that these Trade Secrets are confidential in nature. During the term of this Agreement and until such time as each of the Trade Secrets are made public by their respective owners and are no longer confidential in nature, the Consultant, Client, and all employees and/or agents of both shall not directly or indirectly make public, discuss or disclose to any third party any of the Trade Secrets, and shall not use them in any way for commercial benefit.

 

Non-payment

17) The parties agree that in the event of non-payment by the client, whether deliberate or accidental, the Consultant may charge interest at the rate specified under NSW statute from the day immediately following the date payment is due until the debt is paid in full.

18) The Client agrees to pay all incidental costs incurred by the Consultant related to non-payment of any account including bank charges, collection fees, legal costs and any other costs incurred as a result of non-payment.

19) The client hereby consents to the Consultant removing the content of any website in the event of nonpayment for a period of longer than 30 days and under circumstances where acceptable payment terms have not been agreed between the parties prior to breach. This includes consent to access the ftp or other hosting site and all other necessary consents to give effect to this clause.

 

Whole Agreement

20) The parties agree that this written Agreement constitutes the whole of the Agreement between them in relation to the project and any and all other written or verbal undertakings are expressly excluded.

 

Jurisdiction

21) This agreement will be governed by the laws of NSW and the parties submit to the jurisdiction of the courts of NSW.

 

Mark Scarrott – Director : Design Identity Pty Ltd

Date - 04/04/2011