Updated 1st February 2019 – Please print for your records.
Approval and transfer of funds of a project estimate (“Website Proposal”) indicates the acceptance of the terms and conditions set forth in this agreement (“Agreement”) by an authorized representative of the client entity (“Client”).
Client’s sole and exclusive remedy for any claim against Vendor with respect to a breach of any Section will be the correction by Vendor of any material defects or deficiencies therein of which Client notifies Vendor in writing within thirty (30) days after the completion of the Deliverables. In the event Vendor is unable to correct any material defects or deficiencies to Client’s reasonable satisfaction, Vendor shall reimburse Client for reasonable fees paid in relation to that specific Deliverable. In the absence of any such notice, the Deliverables will be deemed satisfactory to and accepted by Client. Payment or use of the web site or the Deliverables (as defined in the Website Proposal) shall in no way preclude Client’s ability to assert a warranty claim within the warranty period.
In no event will either party be liable for any loss of profit or revenue by the other party, or for any other consequential, incidental, indirect or economic damages incurred or suffered by the other party arising as a result of or related to this Agreement, whether in contract, tort or otherwise, even if such party has advised of the possibility of such loss or damages. The parties further agree that the total liability of either party for all claims of any kind arising as a result of or related to this Agreement, or to any act or omission of such party, whether in contract, tort or otherwise, will not exceed an amount equal to the amount actually paid by Client to Vendor for the Deliverables.
The performance by Vendor of its duties and obligations under this Agreement will be that of an independent contractor, and nothing herein will create or imply an agency relationship between Vendor and Client, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
During the period of this Agreement and for twelve (12) months thereafter, neither party will solicit, directly or indirectly, the employment of any employee, former employee, subcontractor, or former subcontractor of the other party that (a) with respect to Vendor, performed the Deliverables for Client, or (b) with respect to Client, oversaw the performance of the Deliverables. The terms “former employee” and “former subcontractor” will include only those employees or subcontractors of either party who were employed or utilized by that party on the Effective Date of this Agreement. Both parties agree that nothing contained herein shall prohibit the other party from employing general recruiting strategies, such as placement of advertisements, posting of positions on either party’s web sites and other similar methods.
Either Party may terminate any project covered by a Website Proposal with at least 10 days’ written notice to the other Party. Unless otherwise agreed to in writing by the Parties, Client shall, within 30 days of the date of termination, pay Vendor for all work performed up to the date of termination, based either on the quoted price per deliverable in the Website Proposal or, if no such definition was made, based on Vendor’s standard hourly rate of $150, plus reimbursement for any project expenses. If monies paid by Client to Vendor under the Website Proposal exceed the amount due to Vendor under this Agreement, Vendor shall refund the difference to Client within 30 days of the date of termination.
If Client fails to pay any invoice within 14 business days of due date, Vendor shall have the right to withhold further work. Further, if Client fails to pay any website hosting services invoice within 30 days of due date, Vendor may disable the website for which the hosting fees apply until all such invoices are paid.
Neither party will assign this Agreement, in whole or in part, without the prior written consent of the other party except in cases of merger or any person or entity acquiring all or substantially all of that party’s assets or stock. This Agreement will inure to the benefit of, and be binding upon the parties hereto, together with their respective legal representatives, successors, and assigns, as permitted herein. Nothing in this Agreement shall be deemed to create any rights in third parties or create any obligations of a party to such third parties.
Any dispute arising under this Agreement will be subject to binding arbitration by a W.A. court of law, in accordance with its relevant industry rules, if any. The parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the State of Western Australia, without regard to the state’s conflict of law principles. The arbitration will be held in WA. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement and the enforcement of this agreement to arbitrate. Judgment on any award rendered by the arbitrator may be entered in any Court of competent jurisdiction.
If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
If either party is prevented from complying, either totally or in part, with any of the terms or provisions of this Agreement by reason of fire, flood, storm, computer virus, war, accident, or other acts of God, then upon written notice to the other party, the requirements of this Agreement, or the affected provisions hereof to the extent affected, shall be suspended during the period of such disability. During such period, the party not prevented from complying may seek to have its needs (which would otherwise be met hereunder) met by the other without liability hereunder. The party prevented from complying shall make all reasonable efforts to remove such disability within ten (10) days of giving such notice and the party not prevented from complying pursuant to this Section may terminate this Agreement, without liability, upon expiration of such ten (10) day period. However, Vendor agrees to use commercially reasonable efforts to protect the Deliverables, information and the Deliverables it has created for Client from any force majeure event including insuring the appropriate information is backed-up and stored at a safe site on a reasonable basis to help protect from such unforeseen events.
The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing, and signed by the party waiving its rights. This Agreement may be modified only by a written instrument executed by authorized representatives of the parties hereto.
Any notice or other communication which may be permitted or required under this Agreement shall be delivered personally, or by facsimile or other electronic means, or sent by Asutralian registered or certified mail, postage prepaid, addressed set forth in the introductory paragraph or to any other address as either party may designate by notice to the other party. Notice given by facsimile or other electronic means shall promptly be confirmed by registered or certified mail or overnight carrier shall be deemed to be received upon verification that such facsimile was received by the other party. Notice by registered or certified mail or overnight carrier and shall be deemed to be received two (2) days following the date of mailing, provided such notice is properly addressed and sufficient postage is affixed thereto, or the actual date of receipt, whichever is earlier.
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. For purposes of this Agreement, signatures delivered by facsimile transmission or other electronic means will be treated in all manner and respects as originals.
18. Expiry of Quote Period
The amounts quoted as part of Vendor’s website proposal will remain valid for a period of 2 months from the date shown on the Website Proposal.
19. Expiry of Agreement When Content Not Provided
If the client is deficient in providing content to enable completion of the website within three months of the agreement time period, then the Vendor may issue a written notice of expiry of valid quote and reissue a new quote that may differ from the first and reflect the new costs.
Exhibit A: License Agreement
Provided Vendor receives all payments from Client that are not disputed, Vendor shall grant to Client a license to utilize Vendor’s Background Technology (as defined below).
As between Client and Vendor, Vendor will retain ownership of all right, title and interest in or to any intellectual property that Vendor can substantiate were either owned or developed by Vendor prior to, or independently from, its engagement hereunder (the “Background Technology”). Background Technology shall include, without limitation, various pre‐existing development tools, routines, subroutines and/or other programs, data and materials that Vendor may use or implement in the development of the web site. To the extent that Vendor incorporates any Background Technology into the the Deliverables or any third party technology, Vendor shall identify such Background Technology below and hereby grants to Client a worldwide, nonexclusive, nontransferable, royalty-free, right and license to use, copy, display and create derivative works of the Background Technology and third party technology as necessary to use and modify the Deliverables, the Deliverables and the web site developed by Vendor pursuant to this Agreement. However, upon sale or transfer of the Client’s business, this license shall be transferable to the new owner of Client’s business.