Terms and
Conditions

  1. Definitions
    1. “Additional Services” shall mean any goods or services provided by the Supplier which fall outside the scope of works described in the Quotation.
    2. “Client” shall mean the entity or person named on any form provided by the Supplier to the Client (or any person acting on behalf of and with the authority of such entity or person) who buys or agrees to buy Goods. If the Client includes two or more persons, those persons liability is joint and several.
    3. “Client Materials” shall mean any materials provided by the Client to the Supplier for incorporation in the Goods, Works and/or Deliverables including but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips or text and any other materials that are created by the Supplier specifically and uniquely for the Client and contained in the final work product delivered to the Client under these terms and conditions (Contract), including licensed software, software applications or supplied IT services, software designs, code, data and technical components, and creative designs, images, artwork and text.
    4. “Contract” means each contract formed between the Supplier and the Client which incorporates the terms of this document.
    5. “Default Event” means an event of default under clause 14 of these Terms and Conditions.
    6. “Deliverables” shall mean all Deliverables, Goods, Services and/or Works undertaken by the Supplier (including, but not limited to any advice or recommendations given regarding the Deliverables) and are as described on any Invoice, Quotation, Fees Schedule or any other forms provided by the Supplier to the Client.
    7. “Design Concept” shall mean the design concept, including any information architecture, design and static web site image designed by the Client.
    8. “Design Materials” means any designs, design materials, software, routines, know-how, methodologies, user interface conventions or design patterns, interfaces to third party products and other development and design tools (and all enhancements and derivatives thereto) which the Supplier (i) developed prior to or otherwise than in the course of any Contract or (ii) develops during the course of any Contract but which are developed either at the Supplier’s Design cost or which are not uniquely applicable to the particular specifications, characteristics or functions of the Deliverables.
    9. “Design Product” shall mean web ready website page(s) as well as print and/or production ready files designed by the Supplier in accordance with these terms and conditions.
    10. “Design Specifications” shall mean the design specifications or design brief for the Design Product agreed between the Supplier and the Client.
    11. “Disbursement” means any amount paid or debt incurred by the Supplier on behalf of the Client during the provision of the Goods and the Services under the Contract.
    12. “Fees Schedule” shall mean the schedule of fees agreed between the Supplier and the Client, and specified in or calculated by reference in respect to any Quotation, Estimate, or any other forms provided by the Supplier to the Client.
    13. “Goods” shall mean all goods, including Deliverables (including but not limited any advice or recommendations given regarding the Goods), specified in the Quotation to be provided by the Supplier to the Client pursuant to a Contract.
    14. “GST” shall mean goods and services tax payable under the Goods and Services Tax Act 1999.
    15. “Guarantor” means that person (or persons, or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
    16. “Intellectual Property” means, in respect of any person, all intellectual property and industrial property rights and interests (including common law rights and interests) owned or held by that person, or lawfully used by that person, including, without limitation:
      1. patents, trademarks, service marks, copyright, registered designs, trade names, symbols and logos; and/or
      2. patent applications and applications to register trademarks, service marks and designs; and/or
      3. all formulae, methods, plans, data, drawings, specifications, characteristics, equipment, designs, inventions, discoveries, improvements, know-how, experience, software products, trade secrets, price lists, castings, brochures and other information used by that person.
    17. “Invoice” means any tax invoice from the Supplier to the Client claiming an amount for payment for Goods, Services or Deliverables provided under a Contract between those parties.
    18. “Price” shall mean the cost of the Goods, Works and/or Deliverables as determined by the Supplier and any other amounts owing to the Supplier by the Client.
    19. “PPSA” shall mean the Personal Properties Securities Act 2009 (Cth).
    20. “Quotation” shall mean any quotation provided by the Supplier to the Client which describes goods or services to be provided by the Supplier and specifies a price for those good or services.
    21. “Scripts” means any content management software provided by the Supplier under this agreement (where applicable), and includes any enhancement, modification, correction or upgrade relating to the software.
    22. “Scripts User Manual” means any documentation provided by the Supplier, which contains instructions on the use of Scripts.
    23. “Security Interest means the security interest in the Goods or their proceeds created by or pursuant to this Agreement;
    24. “Services” means all services described in the Quotation to be provided by the Supplier to the Client in accordance with the Contract and shall include, without limitation, the provision of all graphic design, magazine and web design, communication services and supplies, IT services and IT support, labour and work, hire charges, insurance charges.
    25. “Supplier” shall mean Revolution Creative Group, and/or any related companies of the Supplier, and/or agents, employees, successors or assignees thereof.
    26. “Terms and Conditions” means this document and the terms contained herein.
    27. “Works” shall mean all Works, Services and/or Deliverables undertaken by the Supplier (including, but not limited to any advice or recommendations given regarding the Works) and are as described on any Invoice, Quotation, Fees Schedule or any other forms provided by the Supplier to the Client.
  2. Interpretation
    1. Headings are inserted for convenience and shall not affect the construction of this Contract. The singular includes the plural and vice versa. Persons include incorporated and unincorporated entities. Words referring to one gender include the other.
    2. If any provision of this Contract shall be invalid or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced, or impaired.
    3. This Contract shall be subject to the laws and statutes of Queensland and subject to the jurisdiction of the court geographically closest to the physical address of the Supplier.
    4. The Supplier may sub-contract any part of this Contract. No sub-contractor has any authority to agree to any variation of this Contract on behalf of the Supplier.
    5. The Supplier’s failure or delay in exercising or enforcing any right it has under this Contract shall not operate as a waiver of the Supplier’s rights to exercise or enforce such rights or any other rights in the future.
    6. Any waiver of these terms and conditions by the Supplier must be made in writing.
    7. The Client may not assign all or any of the Client’s rights or obligations under this Contract without the written permission of the Supplier.
    8. The Supplier shall not be bound by any error or omission made by the Supplier on any invoice, quotation, estimate, or any other document issued by the Supplier.
    9. The Client shall notify the Supplier of any intention to cease trading and/or of any change in the Clients name and/or contact details by giving at least seven (7) days notice in writing prior to any such events taking effect.
  3. Offer
    1. The Supplier may offer to enter into a Contract on the terms and conditions contained herein with a Client for the work described therein by:
      1. providing the Client with an engagement letter;
      2. providing the Client with a quotation; or
      3. providing the Client with any other documentation containing a description of work to be performed by the Supplier and a price for performing the same.
    2. Where a Quotation is given for the Price then:
      1. where Goods, Works and/or Deliverables are required in addition to the quotation then the Client agrees to pay the additional Price of such Goods, Works and Deliverables; and
      2. the Supplier reserves the right to amend the quotation in the event of circumstances beyond the Supplier’s control.
    3. Any offer made by the Supplier to the Client shall be deemed to expire 10 business days of provision of the same, unless otherwise agreed between the parties.
  4. Acceptance
    1. The Client may accept an offer made by the Supplier to enter into a contract by:
      1. Providing instructions, written or verbal, to the Supplier for the supply of Goods, Works and/or Deliverables;
      2. Making payment of any amount requested by the Supplier in the offer;
      3. Accepting Goods, Works and/or Deliverables supplied by the Supplier; and
      4. Accepting the offer in writing.
    2. The Supplier shall supply the Goods and/or Services subject to these terms and conditions, and no other terms and conditions of trade relating to the Client and/or any other entity shall over-ride the Supplier’s terms and conditions, unless expressly agreed otherwise in writing.
    3. These Terms and Conditions along with the Supplier’s quotations, estimates, order forms, and invoices, or any other documents issued by the Supplier, together, form the terms of the Contract and are the full agreement between the parties. To the extent of any inconsistency between the Terms and Conditions and any other document incorporated into the contract by this clause, the Terms and Conditions shall prevail. To the extent of any inconsistency between the Quotation and any other document incorporated into the Contract by this clause (other than the Terms and Conditions), the Quotation shall prevail. For the avoidance of doubt, an inconsistency between the Quotation and these Terms and Conditions shall be deemed to be an agreement to vary the terms of the Terms and Conditions where the Terms and Conditions include express wording to provide for the parties to agree to alternative terms, and any such variations shall apply for that Contract.
    4. The Client acknowledges that no employees, contractors, agents and/or representatives of the Supplier are authorised to make any representations, statements, conditions and/or agreements without the prior written consent of a Director of the Supplier. The Client expressly agrees that the Supplier will not be bound by any such unauthorised statements.
  5. Variation
    1. The Parties agree that the Supplier may, at its utmost discretion, elect to vary the Terms and Conditions from time to time.
    2. Any variation of the Supplier’s Terms and Conditions shall not affect the terms of any Contract on foot at the time of such variation unless expressly agreed between the Parties. For the avoidance of doubt, the terms and conditions that apply to any Contract shall be the Terms and Conditions as then incorporated into the Contract at the time of formation, unless otherwise agreed by the Parties.
  6. Design Concept
    1. Upon agreement of design specifications of the Design Product, and upon receipt of any Client Materials, and any fees payable as set out in the Quotation, the Supplier will commence work to develop the Design Concept.
    2. The Client shall have ten (10) business days, or such other time as Supplier and Client agree in writing, from the date of notification to completion of the Design Concept from the Supplier, to review and request in writing from the Supplier revisions to the Design Concept. The Supplier shall use commercially reasonable efforts to implement such revision requests that are within the scope of, and consistent with, the Design Specifications.
    3. If the Client chooses to alter the Design Specifications in any material way, then any work required to give effect to that alteration which would otherwise have been outside the scope of the Supplier’s obligations under the Contract shall be Additional Services.
    4. If the Client does not make any requests for revisions by the end of ten (10) business days from the date of written notice of completion of the Design Concept from the Supplier, and/or upon completion and implementation of such request, the Client and the Supplier have mutually agreed upon with the revised Design Specifications under clause 7.1, then the Design Concept shall be deemed to be accepted by the Client.
    5. After the Design Concept has been accepted by the Client, any further requests from the Client for revisions or alterations will be subject to further charges based on the amount of time required for the Supplier to perform those variations at the Supplier’s standard rates set out in the Fees Schedule or as mutually agreed in writing.
  7. Design Product
    1. The Client will provide the Supplier with any Client Materials required by the Design Specifications in an electronic file format specified and accessible by the Supplier and/or as otherwise specified in the Design Specifications. Any services required to convert or input Client Materials not set forth in the Design Specifications shall be charged as Additional Services.
    2. Upon acceptance of the Design Concept under clause 6, and provision of any required Client Materials, the Supplier will commence work to develop the Design Product. The Supplier will notify the Client of the URL (Uniform Resource Locator) or other address of any Design Product comprising a web site. The Supplier may use any combinations of technology as the Supplier, in consultation with the Client, deem appropriate to develop any Design Product comprising a web site.
    3. The Client will have ten (10) business days, or such other time as the Supplier and the Client agree in writing, from the date of notification of completion of the Design Product from the Supplier, to review and request in writing from the Client revisions to the Design Product. The Supplier shall use commercially reasonable efforts to implement such revision request that are within the scope of, and consistent with, the Design Specifications.
    4. If the Client implements any revisions to the Design Product that depart in any material respect from the Design Specifications, then any work required to give effect to those revisions which would otherwise have been outside the scope of the Supplier’s obligations under the Contract shall be Additional Services.
    5. If the Client has not made any requests for revisions by the end of ten (10) business days from the date of written notice of completion of the Design Product from the Supplier, and/or by such time as otherwise agreed by the Client and the Supplier in writing, or upon completion of implementation of such request which were mutually agreed upon by the Client and the Supplier under the revised Design Specifications, and, as per clause 7.4, then the Design Product shall be deemed to be accepted by the Client.
    6. After the Design Product has been accepted by the Client, any further requests from the Client for revisions or alterations will be subject to further charges based on the amount of time required for the Supplier to perform those variations at the Supplier’s standard rates set out in the Fees Schedule or as mutually agreed in writing in addition to the Price.
    7. Upon acceptance of the Design Product, the Supplier shall transfer any Design Product comprising a web site to the computer system owned and operated by the Client or to the Client’s designated third party contractor.
    8. The Client acknowledges that if the Supplier registers a domain for the Client, the domain cannot be transferred until the expiry of six months from the date of the registration.
  8. Retainer Agreements
    1. Where the quotation describes the type of the contract as a “retainer agreement” (deemed a “service agreement” but broken out into a recurring fee monthly fee structure), the additional terms of this clause 8 will apply.
    2. The Supplier may, at its own utmost discretion, elect to review the scope of the Services and the Price as set out in the Quotation, with that right arising on the day that is 3 months after the commencement date and expiring on the day that is 4 months after the commencement day.
    3. If the Supplier elects to exercise its right to review, it may amend such terms of the Quotation as it deems commercially reasonable in the circumstances, including but not limited to any changes in the Client’s or the Supplier’s circumstances since the Quotation was issued, to create a new quotation (New Quotation) and must provide a copy of the New Quotation to the Client before the end of the period.
    4. Within ten business days of receiving the New Quotation, the Client must either accept or reject the New Quotation by notice to the Supplier. For the avoidance of doubt, it will be deemed to be a rejection of the New Quotation if the Client fails to provide notice of their decision to Supplier within the specified timeframe and that notice will be deemed to have been received on the eleventh day after the day the Client received the New Quotation.
    5. The parties expressly agree that where the Supplier is within a retainer agreement, the Supplier or Client may terminate this agreement by written notice to Supplier or Client at any time within 30 days of receipt of the notice of rejection and such termination shall be on the following terms:
      1. The contract will terminate 30 days after date of the notice;
      2. The parties expressly agree that the Supplier’s or Client’s election to terminate under this clause shall not be construed as a breach or a repudiation of the Contract and shall not give rise to any claim for damages in relation to that termination, except to the extent that either party has failed to comply with the terms of this clause 8.
  9. Suppliers Obligations
    1. The Supplier agrees to provide the Goods and/or Services in exchange for the Client agreeing to pay the Price.
    2. The Supplier warrants:
      1. it has the right to grant the licenses in respect of the Deliverables under this agreement to the Client without violating any rights of any third party;
      2. the Deliverables will, in all substantial respects, conform with the Design Specifications, or as otherwise agreed in writing by the Supplier and the Client;
      3. it will use reasonable means to ensure the Deliverables comprising a website do not contain any known virus or computer software code, routines or devices (other than as provided for in the Design Specifications) designed to disable, damage or impair the Deliverables, or other software or data; and
      4. any services provided under this agreement shall be performed in a workmanlike manner.
    3. The Supplier’s representations in clause 8.1 will not apply where the Client has used the Deliverables in a manner, and/or, for a purpose not reasonably contemplated, or not authorised by the Supplier, or in combination with other goods not specifically approved by the Supplier, or where the Client has made any adaptations, extensions or modifications to the Deliverables.
    4. To the extent permissible at law, the Client’s sole remedy in the event of a representation in clause 8.1 being breached, at the Supplier’s option, is replacement of the defective Deliverables or refund of the license fee paid for the Deliverables.
  10. Clients Obligations
    1. The Client agreeing to pay the Price in exchange for the Supplier agreeing to provide the Goods and/or Services.
    2. The Client acknowledges that:
      1. the Supplier is in the business of graphic design, including designing web sites and web site concepts, and that the Supplier shall have the right to provide services to third parties which are the same or similar to the services the Supplier provides to the Client and to use or otherwise exploit any Design Materials in providing such services;
      2. it is responsible for any faults, which occur, in the Client’s computer or communication equipment;
      3. any Deliverables comprising a web site are not warranted to operate on computer systems and networks which do not meet any minimum specifications set out in the relevant Design Specifications;
      4. the Client will not transfer any ownership rights in the Deliverables, and that the Supplier will reserve all rights not expressly granted.
    3. The Client agrees:
      1. to be responsible for the use and management of Scripts;
      2. not to copy, alter, modify or reproduce Scripts;
      3. not to sell, transfer, publish, disclose, display or otherwise make available Scripts to others;
      4. not to reverse engineer, decompile, disassemble, vary, modify, adapt, create derivative works, or otherwise attempt to derive the source code of any Design Product comprising a web site or Scripts;
      5. to give reasonable consideration to any Design Materials request to place the Supplier’s proprietary notices on the Deliverables, including the Supplier’s attribution and hypertext links to the Supplier’s web sites;
      6. to acquiring any authorisations necessary for hypertext links to third party websites in relation to Deliverables comprising a web site and the accuracy of the Client Materials;
      7. to indemnify the Supplier against all losses, costs, expenses, demands, or liabilities (including all legal costs and expenses) incurred by the Supplier relating to any claim that the provision of the Client’s Client Materials, or the use of the Client’s Client Materials by the Supplier, infringes the intellectual property rights of any third party or any breach of the Client’s obligations under this agreement or any willful, unlawful or negligent act or omission by the Client.
    4. The Client must provide Client Materials that do not contain obscene, threatening or malicious content and do not infringe any law, or third party right or which may otherwise expose the Supplier to civil or criminal liability. Provision of any Client Materials, which do not satisfy this clause, shall be deemed to be a material breach of this agreement.
    5. The Client warrants that, to the best of the Client’s knowledge, the Client owns and/or is validly licensed to provide under this Contract all copyright and all other intellectual property rights in and/or to the Client’s Client Materials, and the Supplier’s use of the Client’s Client Materials will not infringe the intellectual property or other rights of any third party, or breach any applicable law, statute or regulation.
    6. Any provision of maintenance, which is not covered in the Design Specifications, shall be paid for by the Client as Additional Services at the rate set out in the Fees Schedule.
    7. The Parties agree that any maintenance or ongoing support provided by the Supplier to the Client shall be Additional Services where those services are not expressly provided for in the Design Specifications and the Client shall be liable to pay the Supplier an additional amount for those Additional Services calculated using the rates set out in the Fee Schedule.
  11. Price
    1. The Price of the Goods, Works and/or Deliverables shall be either:
      1. as stipulated (subject to clause 13) in the Supplier’s quotation, or
      2. in respect of Goods, Works or Deliverables provided by the Supplier, which has not been set pursuant to Clause 11.1 (a), or otherwise agreed or in the Fees Schedule, a reasonable price for such Goods, Works and/or Deliverables.
    2. Unless otherwise agreed:
      1. no allowance has been made in the Price for the deduction of retentions; and
      2. the Price is exclusive of Goods and Services Tax, and any other applicable taxes, duties, charges and costs payable by the Client in addition to the Price.
    3. The Prices quoted by the Supplier shall only apply to the specific Goods, Works or Deliverables as itemised or specified in the Quotation. Any additional Goods, Works or Deliverables outside the scope of the Goods, Works and Deliverables itemised in the Quotation, requested by the Client, will be subject to a variation, and will be charged at the Supplier’s standard prices and/or rates prevailing at the time of supply. For the avoidance of doubt, this includes artwork files created by the Supplier in the design and finalisation of the Goods, Works or Deliverables and which will only be released upon payment of an additional fee as set out in the Fee Schedule.
    4. Where the Works are suspended or cancelled, by the Supplier or the Client, the Supplier will charge for those Works completed, or partially completed, as at the date of suspension or cancellation of the Works. Such charge will be based on the hours expended and charged at the hourly rate as set out in the Fees Schedule.
    5. If the Supplier has registered a domain for the Client, the Supplier may automatically renew the domain within 30 days from the expiration of the domain registration (at its discretion), unless the Client provides the Supplier with written notice not to renew the domain at least 14 days before the expiration of the domain.
  12. Additional Services
    1. Any request for Additional Services from the Client to the Supplier shall constitute a request to vary the terms of the Contract to vary the scope of work to include those Additional Services in accordance with this clause.
    2. Any fee for additional services shall be calculated based on the amount of time required for the Supplier to perform the work comprising the Additional Services at the rate specified in the Fee Schedule for that type of work.
    3. In the event that there is no rate specified in the Fee Schedule for a particular kind of work and the type of work comprising the Additional Services does not otherwise fall within the scope of any of the types of work specified in the Fee Schedule, then the rate for those additional services shall be One Hundred and Seventy Dollars per Hour ($195.00/hr).
    4. For Additional Services, time will be charged in thirty (30) minute intervals – with thirty (30) minutes being the minimum interval recorded for professional services. For example the time charged for an attendance of up to thirty (30) minutes will be one unit and the time charged for an attendance between thirty (30) and sixty (60) minutes will be two (2) units.
  13. Payment
    1. All Fees payable under this agreement for Goods or Services shall be payable in advance, unless otherwise agreed between the parties or where the fees relate to Additional Services. For the avoidance of doubt:
      1. the Supplier’s obligations under these terms and conditions, including but not limited to their obligations to provide Goods and/or Services, are conditional upon the Client making payment in advance; and
      2. Where the Supplier has specified a timeframe for doing any action or task, that timeframe is conditional upon payment being received when due, and the parties agree that where the specified timeframe shall be extended by the amount of time that the payment was due but not made.
    2. Unless the Supplier otherwise agrees in writing, payment of any Invoice shall be due seven (7) days after an Invoice is issued for the Price. 
    3. Under 13.3 (a) all new clients commencing retainer service agreements after Dec 31, 2022 will be required to pay via a monthly direct debit provided by third party provider EziDebit via an additional payment form submitted to the provider via encrypted data fields.  *unless otherwise specifically agreed with management.
    4. The Supplier may submit a detailed payment claim at intervals of not less than one (1) month for work performed up to the end of each month. The value of Goods, Works and/or Deliverables may include the value of authorised variations.
    5. All payments by the Client must be made in full and without any retentions, deductions, right of set-off or counterclaim. The Client agrees, however, that any monies that the Supplier may owe the Client on any account whatsoever may, at the Supplier’s option, be set-off against any payments due by the Client to the Supplier.
    6. The Supplier has the right to apply any payment received from the Client to any outstanding account of the Client at its unfettered discretion. Should the Client have a number of accounts, then the Supplier is hereby given the right to combine any account and also set-off any amount between such accounts.
    7. Should the Client dispute any invoice of the Supplier’s, the Client shall remain liable for payment to the Supplier, of any outstanding invoices not subject to any dispute raised by the Client. Payment for any invoice not related to a dispute, shall remain due, on the date noted on the Supplier’s invoices. Nothing in this clause shall be construed as waiving, suspending or otherwise modifying the Client’s obligation to pay a validly issued invoice.
  14. Default
    1. A Default Event occurs if:
      1. any amounts are unpaid after they fall due;
      2. the Applicant is unable to pay its debts as they fall due;
      3. the Applicant ceases or suspends conduct of its business, or threatens to;
      4. The Applicant’s financial circumstances change in a way which, in the reasonable opinion of the Supplier, will affect the Applicant’s ability to comply with its obligations under this Contract;
      5. an administrator, liquidator, provisional liquidator, receiver and/or manager or any other form of insolvency administrator or controller is appointed to the Applicant or over all or part of the Applicant’s assets;
      6. the Applicant goes into bankruptcy, dies, or commits any act of bankruptcy or, if the Applicant is a partnership, the partnership is dissolved;
      7. execution is levied on any of the Applicant’s assets.
    2. Without prejudice to any other rights or remedies that the Supplier may have against the Client, where the Default Event relates to a failure to pay any amount owing by the Client, the Client agrees to pay on demand:
      1. all costs (including, but not limited to, collection agency fees, commission, legal fees and any other costs on a solicitor and own client basis) incurred by the Supplier in recovering any amounts payable by the Client to the Supplier;
      2. interest on the amount outstanding at the end of each month in which the Client’s account is in arrears at the rate of two percent (2%) per month (compounding) with such a rate after as well as before any judgement; and
      3. a monthly administration fee of twenty five dollars ($25) by way of damages payable on the last day of each month in which the Client’s account is in default.
    3. In the event the Client’s payment to the Supplier is dishonoured for any reason, the Client shall be liable for any dishonour fees incurred by the Supplier.
  15. Breach and Termination
    1. Either party may terminate any Contract on 90 days’ prior written notice to the other party at any time subject to the remainder of this clause.
    2. If a Default Event occurs:
      1. The Supplier may, at its sole discretion, suspend performance of its obligations under the Contract until such time as the Default Event is rectified or terminate the supply of goods and/or services;
      2. all unpaid amounts become immediately due and payable; and
      3. the Supplier may immediately terminate the Contract at any given time before the Default Event is rectified by written notice to the Client.
    3. Any maintenance or month to month services provided by the Supplier to the Client, including but not limited to Office 365, Hosting and Email Solutions, where no fixed term agreement is in place, may be cancelled by the Client after 3 months of continuous service providing thirty (30) days written notice to the Supplier.
    4. All products and services which are pre-paid by the Client are non-refundable. If the Client informs the Supplier that it no longer requires the product or service, the Supplier will provide the Client with a company credit to be used towards other products and services provided by the Supplier. For the avoidance of doubt, such company credit shall not be redeemable for cash.
    5. Where the Client has entered into a fixed term agreement with the Supplier for products and/ or services and cancels the agreement, the Client continues to be liable for payment of the products and/ or services for the remainder of the term.
    6. The Parties acknowledge that the Supplier’s rights under this clause may be subject to restrictions pursuant to clause 415D of the Corporations Act 2001 (Cth).
  16. Effect of Termination
    1. If any Contract is terminated by the Client or the Supplier under clause 20, that Contract will terminate and the following will apply:
      1. any license granted under or pursuant to that Contract or these terms and conditions will end, and the Client will not be authorised to use the Deliverables after expiry or termination of that Contract;
      2. the Client shall be liable to pay the Supplier for full costs of the Works, Goods and/or Deliverables provided by the Supplier, including any Goods, Works and/or Deliverables ordered and/or purchased, up to the date of termination;
      3. the Client will agree to pay the Supplier for any unpaid fees arising from the Client’s use of the Deliverables up to the date of termination;
      4. the Client will agree to return to the Supplier, on the Supplier’s demand, any information to which this clause relates to, which includes, but is not limited to, any manuals, specifications, designs or other information relating to the business of the Supplier or the services or products provided under these terms and conditions and/or any Contract;
      5. termination of any Contract shall be without prejudice to the rights of any party which have accrued prior to, or which arise in connection with, such termination; and
      6. the provisions of these terms or any Contract intended to apply after termination shall continue to apply.
    2. The Supplier shall not be liable for any loss or damage whatsoever arising from any election to terminate the Contract pursuant to clause 15.2.
  17. Intellectual Property Rights
    1. The Client Materials the Client provides to the Supplier in order for the Supplier to carry out the Supplier’s obligations under this agreement are owned by the Client. The Client will grant to the Supplier a license to modify, reproduce, create derivative works from, and otherwise use such Intellectual Property to provide any services or products in connection with this agreement.
    2. All materials provided by the Supplier to the Client, including but not limited to:
      1. any computer software (in object code and source code form), script, programming code, data, information or HTML script developed or provided by the Supplier under this agreement; and
      2. any trade secrets, know-how, methodologies and processes related to the Supplier’s Goods, Works and/or Deliverables;

      shall remain the Supplier’s sole and exclusive property, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent in the Supplier’s Design Materials. To the extent, if any, that ownership of the Supplier’s Design Materials does not automatically vest in the Supplier by virtue of this agreement or otherwise, the Client hereby will transfer and assign to the Supplier all rights, title and interest which the Client may have in and/or to the Supplier’s Design Materials.

    3. The Supplier will have no liability to the Client for any claim of infringement based on or related to:
      1. the use of a superseded or altered release of Scripts if the infringement would have been avoided by the use of a current or unaltered release of Scripts, which the Supplier provided to the Client;
      2. the unauthorised modification of Scripts; or
      3. the use of Scripts other than in accordance with the Scripts User Manual.
    4. The Client acknowledges and agrees that the Supplier is the sole and exclusive owner of all Intellectual Property in and relating to the Deliverables, and that the Client has no rights in and/or relating to the Deliverables, other than are expressly provided for in this agreement. This clause shall survive the expiry or termination of the Contract.
  18. Software License
    1. The Supplier will grant the Client, and the Client will accept from the Supplier, an exclusive, non-transferable license to use the Deliverables for use as, and/or incorporation into, a web site on the Internet. The Supplier will also grant the Client a non-exclusive, non-transferable license to use the Supplier’s Design Materials in the Deliverables. Any portrayal or use of the Deliverables by the Client that does not take place on a website that is operated by the Client for the Client’s own business purposes shall be in breach of this clause.
    2. In consideration of the license to use the Client Materials and the Supplier’s Design Materials in the Deliverables the Client will agree to pay the Supplier the fees specified in the Fees Schedule.
    3. Where Scripts is included in the Deliverables, the Supplier will also grant to the Client, and the Client will accept, a non-exclusive, non-transferable license to use Scripts solely in connection with the Design Product for the term specified. This license may be renewed for any subsequent periods where both the Supplier and Client expressly agree. In consideration of the license to use Scripts the Client will agree to pay the Supplier the fees specified in the Fees Schedule.
    4. The Client acknowledges that any license granted by the Supplier under this clause is granted subject to consent from any third party licensors (if any).
    5. The Client is not entitled to any raw video or photo footage produced by the Supplier and the Supplier retains ownership of such footage at all times.
  19. Personal Property Securities Act 2009
    1. The Client acknowledges and agrees that the Contract creates a Security Interest in the Goods, Works and/or Deliverables, for avoidance of doubt, the proceeds of the sale of the Goods, Works and/or Deliverables in favour of the Supplier.
    2. The Client will, if requested by the Supplier, sign any documents, provide all necessary information and do anything else required by the Supplier to ensure that the security interest is a perfected purchase money security interest.
    3. Until payment of the Price has been made in full the Client acknowledges and agrees that in relation to Goods, Works and/or Deliverables that are inventory, the Client will not allow any non-purchase money security interest to arise in respect of the Goods, Works and/or Deliverables unless the Supplier has perfected the Supplier’s purchase money security interest prior to the Client taking possession of the Goods, Works and/or Deliverables.
  20. Caveat & Mortgage
    1. The Client and/or any Guarantor of the Client agree that the Supplier shall have the right to complete and register a mortgage over any property owned by the Client and/or Guarantor of the Client to secure any amount outstanding and that the Supplier shall have the right at its discretion to place a caveat on any such property for the purpose of this clause and the Client and/or Guarantor hereby irrevocably appoint the Supplier as the attorney of the Client and/or the Guarantor for the purpose of the Supplier exercising its rights under this clause whilst any amount remains in default.
    2. Should the Supplier elect to proceed in any manner in accordance with the clause the Client and/or Guarantor shall indemnify the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis.
  21. Disclaimer and Limitation of Liability
    1. The Supplier disclaims all warranties and conditions, whether express, implied or statutory, other than those identified expressly in this agreement, including but not limited to warranties of title, non-infringement, merchantability, and fitness for a particular purpose, to the extent that it is able to do so at law.
    2. The Supplier will not be liable for any loss or damage suffered by the Client as a result of any failure or defect in any services or products provided by third party vendors, developers or consultants referred to the Client by the Supplier unless such third party products or services are provided under written agreement between the Client and the Supplier, and then only to the extent expressly provided in those agreements.
    3. Under no circumstances (including, but not limited to negligence), shall the Supplier, or any of the Supplier’s related companies, officers, employees, partners, agents or suppliers, be liable to the Client for:
      1. the Client’s reliance on the Deliverables; and
      2. any direct, incidental, special, consequential, indirect or punitive damages (including loss of use, loss of data, loss of profits, loss of anticipated savings, or loss of goodwill) that result from the use of, or the inability to use, and/or relating to the Deliverables.
    4. If the Client is using the Deliverables for the purposes of a business, then the Client agrees that the Deliverables are not of a kind ordinarily acquired for personal, domestic or household use or consumptions.
    5. If the Supplier is liable to the Client at law for any loss or damage, the Client expressly agrees that the liability of the Supplier, or any of the Supplier’s related companies, officers, employees, partners, agents or suppliers (together) to the Client or anyone else using the Goods, Works or Deliverables the Supplier provides to the Client (together) or damages, losses, and causes of action (whether in contract, tort, including negligence, under statute or otherwise) shall not exceed the total cost of providing the Deliverables or $10,000.00, whichever is the lesser amount.
  22. Disputes
    1. Any and all disputes arising between the parties under this Contract will be referred to a single arbitrator to be mutually agreed upon by the parties (or failing such agreement as appointed by The Institute of Arbitrators and Mediators Australia (IAMA). Any determination of such arbitrator shall be final and binding on the parties and not subject to review.
  23. Privacy Act 1988
    1. The Client agrees for the Supplier to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by the Supplier.
    2. The Client agrees that the Supplier may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
      1. to assess an application by the Client;
      2. to notify other credit providers of a default by the Client;
      3. to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and
      4. to assess the credit worthiness of the Client.
    3. The Client consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit.
    4. The Client agrees that personal credit information provided may be used and retained by the Supplier for the following purposes, and for other purposes as shall be agreed between the Client and Supplier, or required by law from time to time:
      1. provision of Goods; and/or
      2. marketing of Goods by the Supplier, its agents or distributors in relation to the Goods; and/or
      3. analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or
      4. processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
      5. enabling the daily operation of the Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
    5. The Supplier may give information about the Client to a credit reporting agency for the following purposes:
      1. to obtain a consumer credit report about the Client; and/or
      2. allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
  24. Force Majeure
    1. No Party hereto will be liable nor deemed to be liable to the other Party for failure or delay in meeting any obligation hereunder due to strikes and/or lockouts (whether of their own employees or those of others and whether or not the Party against whom such action is taken could have avoided the same by acceding to the demands of the employees responsible for such action) Acts of God war fire flood embargo litigation acts of government or any agency instrumentality or any political subdivision thereof or any other cause beyond the control of the Party which had the duty to perform. In any such event, the time for performance of the obligations under this Contract will be extended by the same period or periods (as the case may be) for which performance is delayed. The Party so affected will use its best endeavours to avoid or remove such causes of non performance and will continue performance hereunder with the utmost despatch as soon as such causes are removed provided that nothing in this clause will be construed as requiring the affected Party to settle any industrial dispute.