Web Terms and Conditions
These are the Terms and Conditions on which Digital White Space will carry out work for you. They will apply each time that you ask us to do work for you, or carry out a Project. They set out our professional services and what you can expect from us. Please read them carefully.
Our Professional Services Schedule of Fees are available on request or will be supplied in your quotation/estimate.
These Terms and Conditions are subject to change without notice and may be superceded.
You may engage us to carry out a Project for you by:
(a) signing and returning a Purchase Order to us;
(b) accepting a Quote in writing; or
(c) giving us written, emailed or verbal authorisation to commence a Project.
Unless we notify you otherwise, we will accept that engagement subject to these terms and conditions. The Project will commence when we accept the engagement.
2. Quotes and Estimates
If we provide, or have provided, you with a Quote for the Project, then that Quote:
(a) is based on the Specifications, and is subject to change if the parties agree to amend the Specifications;
(b) does not include GST; and
(c) is valid for a period of 30 days from the date we issue the Quote, unless otherwise agreed by Digital White Space.
(a) The Services that we provide to you may include some or all of the following:
- website consultancy and planning, as described in clause 9;
- website design, as described in clause 10;
- website development and uploading of content, as described in clause 11;
- website modification, as described in clause 12;
- the provision of Website Tools as described in clause 13;
- training, as described in clause 15;
- post-implementation warranty as described in clause 16;
- post-implementation support and maintenance, as described in clause 17;
- website hosting, as described in clause 18.
(b) You acknowledge that websites and other electronic serves are subject to interruption or breakdown, and therefore:
- the Services will not be error-free or uninterrupted; and
- your access to the Website and the operation of the Website will not be error-free or uninterrupted.
(c) You acknowledge that due to the nature and pace of rapid changing technology, Websites their tools and the development of them change therefore;
- The platforms, plugins, development code and design need to be supported, mantained and reviewed regularly
- All future development, functionality, design and code changes will require a new scope and be estimated accordingly
4. Hours of Service
All support activity is carried out between 8:30am and 5:00pm (GMT + 8), Monday to Friday excluding public holidays and office closures times for standard Western Australia public holidays and the Christmas / New Year closure periods.
5. Content and Materials Supplied by You
(a) You must supply to us all required materials you want us to use in the Project, and all other content and materials we reasonably request (Client Content) . Refer to 7b. Scheduling and Production.
(b) You must supply all Client Content in the following digital formats/methods:
- Text/Copy: Microsoft Word or Rich Text (Clearly labeled and in correct order);
- Tables: Microsoft Excel (Clearly labeled and in correct order);
- Images: High resolution where possible (JPEG, PNG files);
- Logos: Vector format (Illustrator EPS/AI);
- Diagrams/Maps: Vector format (AI) or (JPEG files);
- if required, access to your current website and database via ftp and/or CMS/Hosting Control Panel login;
- Brand Style guidelines (if applicable).
(c) We may charge Additional Costs if the Client Content is not provided in the appropriate format set out in this clause.
(d) You warrant that the materials or content you provide to us, or that are provided to us on your behalf, will not:
- breach any rights (including Intellectual Property Rights or Moral Rights) of any third party; or
- compromise the security or operation of our computer systems, through a virus or otherwise.
(e) You indemnify, and agree to keep Digital White Space, its directors, officers and employees indemnified, against all Loss arising out of the breach of any rights (including Intellectual Property Rights and Moral Rights) of any third party in connection with materials or content that you supply to us, or that are supplied to us on your behalf.
6. Your Approval
(a) Your approval will be required for the following items that we deliver to you (Approval Item):
- the website brief;
- the sitemap;
- the website design concepts (and your choice of one of them);
- each updated version of the chosen website design concept;
- the completed Website including uploaded content; and
- any other item for which we request your approval.
(b) When we provide you with any Approval Item, and you do not request any further alterations, then you must notify us in writing that you accept the completed Approval Item.
(c) You will be deemed to have accepted the completed Approval Item if we do not receive from you, within 28 days after providing you with a completed Approval item, either notice in writing of acceptance or requests for further amendments.
(d) Your acceptance of the completed Approval Item in accordance with paragraph (b) or (c) means that the Approval Item is complete, and no further amendments are necessary. However, we will not proceed to the next stage of the Project until we receive your written approval of the Approval Item. There may be added cost in having to reschedule projects, staff or facilitate continuance. If unable to perform continuance, the client will have to pay a shut down and subsequent restart fee commensurate to the labour and resource costs incurred.
7. Purchase of Images
(a) The Fees do not include any searches or purchases of photo images, audio or video.
(b) You can purchase photo images, audio or video directly, or we can purchase photo images, audio or video on your behalf. We may charge Additional Costs in respect of such purchases. We will attempt to advise you of the expected Additional Costs before purchasing the photo images, audio or video.
8. Scheduling, Production and Project Management
(a) If we consider it to be necessary, we will develop a Production Schedule for the Project in consultation with you. We will use reasonable commercialendeavours to carry out the Project in accordance with that timetable.
(b) If you delay in providing Client Content or in providing feedback we request, then this may result in:
- a change in the delivery deadline set out in the Production Schedule; or
- if the delivery deadline cannot be changed, extra costs being incurred, including necessary overtime costs. We will charge these extra costs as Additional Costs.
9. Website Consultancy and Planning
Our website consultancy and planning services mayinclude:
(a) discussing and developing options for your online marketing, search engine optimisation and social media strategy;
(b) planning and developing a site map, information architecture and project management.
10. Website Design Concepts
(a) Our website design services may include:
- delivery to you of up to two website design concepts; and
- up to two sets of alterations to one of these design concepts. Upon each alteration, we will supply an updated version of the website design concept to you.
(b) If you request further alterations, or the addition of new information, after the second updated version, resulting in any further updated versions of the website design concept being supplied, the additional work will be charged as Additional Costs at our then current Professional Rates.
(c) The alterations referred to in paragraph (a) do not include a change to the Specifications. If there are any changes to the Specifications after the Project has commenced, the additional work will be charged as Additional Costs at our then current Professional Rates.
(d) Where possible, we will attempt to provide you with an estimate of Additional Costs prior to undertaking the additional work. However in some cases due to deadline constraints, this will not be possible and we may proceed with the work without providing an estimate.
11. Development of Website and Uploading of Content
(a) Our website development services include developing a website based on the Specifications, the approved website brief, sitemap and final version of the website design concept.
(b) Our website services may also include uploading and styling/layout of the Client Content to the developed website. If applicable we will complete a specified number of standard pages of the website. If we complete additional pages for you, the additional work will be charged as Additional Costs at our then current Professional Rates.
(c) A content management system will be provided with the website. The Fees for our website development services do not include customisation of this content management system, its extensions, plug-ins or components. Our standard projects include the wordpress (CMS) based on PHP and MySQL– unless otherwise specified.
(d) If we carry out any customisation work for you on the Content Management System, or build any extensions for you, then:
- the work will be charged as Additional Costs at our then current Professional Rates;
- the customisation or extension remains licensed under the following terms and conditions: http://www.gnu.org/licenses/gpl-2.0.html and/or;
- you accept and must comply with those terms and conditions in relation to your use of the customisation or extension.
(e) You acknowledge that the Content Management System (CMS) and many of its extensions are provided by third parties, and therefore:
- we have limited control over the functionality or operation of the Content Management System and any third party extensions;
- Digital White Space is not affiliated with or endorsed by WordPress (CMS) PHP and MySQLProject or Open Source Matters; and
- you accept and must comply with the terms and conditions of those third parties relating to the Content Management System. The relevant terms and conditions can be found at the following websites:
- These may include but are not limited to Terms and Conditions found on these websites and URL’s:
- http://www.gnu.org/licenses/gpl-2.0.html (GPLv2 or later)
- These may include but are not limited to Terms and Conditions found on these websites and URL’s:
- Each extension usually has it’s license or Terms and Conditions as a link or text inside the control for that extension in each clients website administration interface.
(f) A Standard Page is: up to 300 words; up to 3 images; and up to one implementation of any tabular data.
12. Website modification
(a) Our website modification services consist of modifying your website based on the Specifications.
(b) Unless otherwise specified, the Fees for website modification do not include any provision for training or post-implementation support- unless specified
(c) The provisions of clause 10(c) to 10(e) apply to the website modification services.
13. Provision of Website Tools
(a) Upon your request, we may provide to you Website Tools as part of the Website.
(b) You acknowledge that some of the Website Tools are provided by third parties, as set out in paragraph (c), and therefore:
- we have limited control over the functionality or operation of the Website Tools;
- if the third parties provide data or other information for use with the Website Tools, we have no control over the accuracy or completeness of that information; EG: ASX data.
- you accept and must comply with the terms and conditions of those third parties relating to the Website Tools; and
- those third parties may invoice you directly for ongoing costs relating to your use of the Website Tools.
(c) The third parties who provide the Website Tools, and the terms and conditions for use of the Website Tools are as follows but are not limited to:
- ASX Package: WebLink Pty Ltd (ABN 52 071 220 847) . The relevant terms and conditions can be found at: http://www.weblink.com.au
- ASX Share Price and Data: ASX. The relevant terms and conditions can be found at:http://www.asx.com.au/legal/terms-use.htm
- (3rd Party Extensions) See (10. Development of Website and Uploading of Content) for links
(d) The fees for updates and upgrades for the Website Tools may change from time to time. The new fees will apply from our notification date to you.
14. Digital White Space Extensions
(a) The Fees for website development may include training sessions of two hours for a maximum of two people per session. During these training sessions, we will provide information to attendees about using the Content Management System to upload content to the Website. Training sessions will be conducted at our premises in Perth.
(b) If additional training sessions are required, or you wish to have additional attendees at a training session, the additional attendees and sessions will be charged as Additional Costs at our then current Professional Rates.
16. Post-Implementation Warranty (28 days)
(a) The Fees for website development include the provision of a limited warranty for a period of 28 days following website launch.
- Once the site is signed off and launch of the finalised Website there is a scrict 28 day included technical support and gaurentee period
(b) The determination of warranty labour is at Digital White Space’s discretion.
(c) It is the client’s responsibility to review the site and ensure they are happy with it before agreeing to the finalisation and go live of the Website.
(d) Any modifications, changes of functionality, design that we don’t define as a bug for the purposes of the warranty will be quoted for separately and not fixed within the 28 day warranty.
(e) Any changes that fall outside the 28 day period of any nature will be quoted for separately and not fixed within the 28 day warranty.
17. Support and Maintenance Packages
Support and maintenance service is a paid service and is primarily carried out and provided monthly. For payment methods for support and maintenance services, please refer to 25. Payment Method.
(a) Our support and maintenance services consist of, but are not limited to:
- answering your technical questions relating to the Website, its operation and the Content Management System and the extensions provided with it; and
- resolving technical issues that arise in relation to the Website or its operation, except as set out in 17 (b).
(b) Our support and maintenance services do not include resolving:
- issues that relate to your networks, computer systems or software used to access the Website;
- other technical issues not arising directly from the Website.
(c) If we provide you with services that are not included in the support and maintenance services, we will charge you for the work at our current Professional Rates.
(d) You must provide us, at your own cost, access to the Website and your computer network and systems in order for us to provide the support and maintenance services. If you do not provide us with such access within a reasonable time after we request it, then:
- we are not obliged to provide you with any support and maintenance services;
- we are not obliged to return to you any portion of the Fees that you have paid to us for the provision of support and maintenance services; and
- an invoice will be issued for any work carried out.
(f) Support Package reduced hourly rate requires that the contract be in place for the full term of any work undertaken – work undertaken outside of the support package contract period will be charged at our full hourly rates. (The support package does not generally include major website design or website development tasks, but this can be assessed in consultation on a case by case basis.) Pricing is available on request.
(g) Support, consulting and analysis provision is dependent upon access to the website to perform the required tasks and to assess/view the requirements.
(h) Response times are indicative and not guaranteed.
(i) Support time is accrued in 30 minute increments.
(j) Estimated time to complete requested support tasks may be provided when and if possible at client’s request.
(k) Commencement of support tasks
- Support will commence upon receipt of written support brief/request by Digital White Space from The Client and confirmation of time estimate provided for the specific task/s from Digital White Space to The Client.
- The website support for this package is limited to the Client website built on the WordPress content management system by Digital White Space.
18. Archiving / Retrieval
(a) We will endeavour to store or archive all electronic files used in the production of your website project. However, we provide no guarantee that any stored or archived files can be retrieved in the future.
(b) Once your website is launched, archiving of the files and database and copies of these files becomes the responsibility of the client. Digital White Space can at the request of the client provide this service.
Disbursement charges are not included in the Fees. If we incur any disbursements or expenses in the course of the Project, we will charge these to you as Additional Costs. These may include but are not limited to the disbursement items set out in the Schedule of Fees.
20. Professional Liability
(a) If you are not a Consumer:
- our liability to you for any Loss, however caused (including by our negligence), suffered or incurred by you in connection with this agreement, whether or not you were aware of the possibility of such Loss to you when this agreement was entered into, is limited to the amount of Fees received by us from you under this agreement;
- the maximum amount you may claim from us for Loss suffered or incurred by you in connection with this agreement is limited to the aggregate amount of Fees which you have paid us at any time and relevant to the cause of the loss, less any amounts already paid out or due to be paid out by us to you for any reason; and
- we are not liable for any
- indirect or consequential loss, or any loss of revenue, loss of profit, loss of business opportunity, or payment of liquidated sums, penalties or damages under any agreement sustained by you or any other person arising from or in connection with the Project or this agreement;
- Loss you suffer or incur in connection with this agreement that is caused by (or to the extent contributed to by) the acts or omissions of a third party;
- Loss you suffer or incur that arises out of the Content Management System or the Website Tools,
- and if the modification can be shown to be counter to current and common or recommended industry practice; or
- Loss you suffer or incur due to factors outside our reasonable control.
(b) If you are a Consumer, our liability to you for failure to apply with any applicable Consumer Guarantee is limited to (at our election):
- in relation to goods:
- replacing the goods or supplying equivalent goods (or paying the cost of either); or
- repairing the goods, or paying the cost of having the goods repaired;
- in relation to services:
- resupplying the services to you; or
- paying the cost of having the services re-supplied.
(c) If you are a Consumer, our liability to you for all Loss, however caused (including by our negligence), suffered or incurred by you in connection with this agreement, other than a failure by us to comply with any applicable Consumer Guarantee, is limited as set out in paragraph (a) above.
(d) Paragraphs (b) and (c) do not apply:
- in relation to a Title Guarantee;
- to the extent that it is not Fair or Reasonable for us to rely on them; or
- in relation to Consumer Goods or Consumer Services we supply to you.
(e) Any condition or warranty which would be implied by law as a term of this agreement is excluded.
21. Intellectual Property and Supply of Raw / Editable files
(a) All Intellectual Property Rights in Project Intellectual Property vest in, or will upon their creation vest in, Digital White Space.
(b) We grant you a non-transferable, non-exclusive license to:
- Publish one copy of the Website and supporting project intellectual property unless otherwise stated by Digital White Space; and
- use and reproduce the other Project Intellectual Property,
subject to the restrictions set out in paragraph (c).
(c) You must not, without our prior written permission:
- adapt, create derivative works from or merge the Website template or other Project Intellectual Property;
- use the Project Intellectual Property for any purpose other than the specific purpose for which we have provided it;
- reverse engineer, disassemble or decompile the Project Intellectual Property;
- distribute, lend, resell, transfer, assign or sublicence the Website or other Project Intellectual Property, or allow any other person to use it except in the course of visiting the Website; and
- remove or attempt to remove any proprietary or copyright notices or any labels on the Website or other Project Intellectual Property.
These restrictions do not apply in relation to:
- extensions that are licensed to you under the terms and conditions referred to in clause11(e); or Some extensions are licensed per domain or via a license key
- modifications that we have made to the Content Management System remain licensed underGPLv2.
(d) The supply of raw / editable files is at the discretion of Digital White Space. Additional Costs will, and may be based upon a percentage of the original Quote or a retrieval and release fee.
(e) Commercial fonts remain the property of Digital White Space, under license or its licensors at all times and are governed under licensing restrictions and rules and are not transferrable.
(f) We do not warrant that your use of the designs, materials or content produced by us for you in the course of the Project will not infringe any third party’s Intellectual Property Rights or any person’s Moral Rights, but we will advise you if we become aware of any infringement.
(g) Client agree to carry the Digital White Space logo or ‘Developed by Digital White Space’ text hyperlink in or under the website footer.
(h) Client should be prepared to provide testimony or feedback on request post the release/close of the project.
(a) Each party agrees to keep confidential, and not to use or disclose except as permitted by these terms and conditions, any Confidential Information of the other party. The parties agree not to disclose these terms and conditions (including any schedules), or any details of a Purchase Order or Quote. This obligation of confidence extends to Confidential Information obtained by a party before entering into this agreement.
(b) The obligation of confidence in paragraph (a) does not apply to Confidential Information to the extent that is required to be disclosed by law or the rules of any stock exchange on which the recipient’s securities are listed, provided that the recipient discloses the minimum amount of Confidential Information required to satisfy the Law or rules.
(c) The Party required to disclose the other Party’s Confidential Information as set out in paragraph (b) must:
- provide a reasonable amount of notice to the other Party of the proposed disclosure;
- consult with the other Party as to the form of the disclosure; and
- take all reasonable steps to maintain such Confidential Information in confidence.
(d) Each party must take all steps and do all such things as may be necessary, prudent or desirable in order to safeguard the confidentiality of the Confidential Information of the other party.
23. Calculation of Fees if not Specified
(a) If the Fees are not specified (in a Purchase Order, Quote or otherwise) at the commencement of the Project, then we will charge you at the Professional Rates for all work that we carry out for you in the course of the Project.
(b) The Professional Rates may change from time to time. The new Professional Rates will apply from the date that we notify them to you.
(c) Travel time is not included in our quotations as Digital White Space’s office is our preferred location as it is appropriately set up for meetings and presentations. If you would prefer meetings at your office or any other location a standard 1 hour travel fee will apply at our hourly rate.
(d) Our standard web project quotation allows for up to 2 meetings. Additional meetings outside of this scope will be charged at the hourly rate of those attending.
24. Payment Method
(a) You must pay the Fees and Additional Costs to us within 28 days after the date on which we issue you an invoice for those Fees and Additional Costs in accordance with this clause 25.
(b) In relation to our services, we may issue invoices for:
- Payment as indicated in our quote or estimate, on the “Terms and Conditions” page, under the title “Payment System for this Quote” and / or
- “Work in Progress” invoice at the end of each calendar month for the Fees and Approved Expenses incurred up to the date of the invoice.
If the Fees do not exceed $1,000 + GST, or if the Fees are not specified (in a Purchase Order, Quote or otherwise), we may issue an invoice for the Fees and Additional Costs either at completion of the Project or as “Work in Progress” at the end of each calendar month at our discretion.
(a) Unless we expressly state otherwise, the Fees and Additional Costs do not include GST.
(b) If at any time we decide that GST is payable on supplies made by us, or if the Australian Taxation Office assesses GST on any such supplies, then the necessary amount will be added to, and form part of, the Fees or Additional Charges (as the case may be) at the GST rate prevailing at the relevant time.
(c) we reserve the right to recover from you at any time such an amount on account of GST on supplies made by us to you under this agreement.
26. Duration of agreement and its termination
(a) Upon execution by both parties this agreement will take effect: immediately and remain in effect until the purpose of the Project has been achieved, unless it is terminated earlier under this clause 27.
(b) A party may terminate this agreement by notice in writing to the other party if:
- the other party commits a material breach of this agreement that is capable of remedy (including failure to pay any amount due under this agreement) and fails to remedy that breach within  days after receiving notice from the other Party to do so;
- the other party commits a material breach of this agreement that is not capable of remedy (including a breach of clause 22or clause 23); or
- the other Party becomes Insolvent.
(c) We may terminate this agreement if:
- you do not provide any information or materials requested within a reasonable time after being asked to do so; or
- we consider that mutual confidence and trust no longer exist.
(d) Upon termination of this agreement under paragraph (b) or (c):
- our obligation to carry out the Project ceases;
- each party’s rights and obligations accrued prior to termination are not affected;
- the licence granted in clause 22(b) ceases; and
- each party must immediately return to the other party (or destroy or delete as the other party directs) all Confidential Information of the other party in its possession or control, except to the extent that the party needs to keep such information to comply with its record-keeping obligations; and
- except as provided in this paragraph (d), clauses 4(c), 4(e), 21, 22, 23, 28 and 29 will continue.
(a) Any notice given under this agreement must be in writing, addressed to the other party’s contact persons as notified by the other party.
(b) This agreement does not create a relationship of employment, agency or partnership between the parties.
(c) We may subcontract our obligations under this agreement.
(d) The failure of a party at any time to insist on performance by the other party of an obligation under this agreement is not a waiver of any of its rights.
(e) If part or all of any of the provisions of this agreement is illegal or unenforceable, it will be severed from this agreement, and will not affect the continued operation of the remaining provisions.
(f) The additional terms and conditions referred to in clauses 10and 12do not apply to the extent that they:
- are not permitted under Australian law; or
- exclude or unlawfully limit any applicable Consumer Guarantee or Title Guarantee.
(g) We may change this agreement from time to time, by notifying you of the changed terms and conditions. The new terms will apply to any Project that commences after the date that we notify you of the changed terms and conditions. Your engagement of our services after that date signifies your acceptance of the amended agreement.
In this agreement:
(a) a reference to “this agreement” means these terms and conditions (including any schedule) together with a Purchase Order or Quote (if any);
(b) headings and bold type are for convenience only and do not affect the interpretation of these terms;
(c) the singular includes the plural and the plural includes the singular;
(d) words of any gender include all genders;
(e) other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning, unless the context clearly requires otherwise;
(f) an expression importing a person includes any company, partnership, joint venture, association, corporation or other body corporate and any government agency as well as an individual;
(g) a reference to any legislation includes all delegated legislation made under it, and amendments, consolidations, replacements or re-enactments of any of them;
(h) a reference to a party to a document includes that party’s successors and permitted assignees;
(i) a promise on the part of 2 or more persons binds them jointly and severally;
(j) no provision of this agreement will be construed adversely to a party because that party was responsible for the preparation of this agreement or that provision; and
(k) specifying anything in this agreement after the words “include” or “for example” or similar expressions does not limit what else is included.
Additional Costs means all additional costs that we are permitted to charge you under this agreement.
Approval Item is defined in clause 6(a).
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the Fair Trading Act 2010 (WA).
Claim means a demand, action or proceeding of any nature whether actual or threatened.
Client, you or your means, in relation to any work that we do for you:
(a) the person named as the client in the Purchase Order;
(b) if there is no purchase order, then the person named as the client in the Quote; or
(c) if there is no Quote, then the person for whom we are undertaking the project.
Client Content is defined in clause 5(a)
Confidential Information of a party:
(a) means any information:
- regarding that party’s business or affairs;
- regarding that party’s customers, employees, or other people doing business with that party;
- which is by its nature confidential;
- which is designated as confidential by that party at the time of disclosure or within 14 days after disclosure; or
- which the other party knows or ought to know is confidential;
(b) includes without limitation (unless excluded under paragraph (c) ) that party’s Intellectual Property Rights and these terms and conditions; but
(c) does not include information to the extent that information is developed or known by the other party independently of this agreement and independently of any obligation of confidence (including because it is in the public domain).
Consumer has the same meaning as in section 3 of the Australian Consumer Law
Consumer Goods means “goods of a kind ordinarily acquired for personal, household or domestic use or consumption” as that expression is used in section 3 of the Australian Consumer Law.
Consumer Guarantee means a consumer guarantee applicable to this agreement under the Australian Consumer Law, (including any ‘express warranty’ within the meaning of section 2(1) of the Australian Consumer Law).
Consumer Services means “services of a kind ordinarily acquired for personal, household or domestic use or consumption” as that expression is used in section 3 of the Australian Consumer Law.
Content Management System (CMS) means the content management system described in clause 11(c).
Digital White Space, we or us means Digital White Space Pty Ltd ACN 610180099 of 5, 171 Collins Street, Melbourne 3000.
Fair or Reasonable means ‘fair or reasonable’ for the purposes of section 64A of the Australian Consumer Law.
Fees means, in respect of a Project:
(a) the fees payable to us for the Project as set out in a Purchase Order or Quote; or
(b) if no fees are specified, fees for all work we do in the course of the Project calculated in accordance with clause 24.
GST means a goods or services tax or similar tax levied in Australia.
Insolvent, in relation to a party, means that:
(a) the party has ceased or taken steps to cease to conduct its business in the normal manner;
(b) the party has entered into or resolved to enter into any arrangement, composition or compromise with or assignment for the benefit of its creditors or any class of them;
(c) the party is unable to pay its debts when they are due;
(d) a liquidator or provisional liquidator is appointed to the party, or a receiver, receiver and manager, official manager, trustee or similar official is appointed over any of the party’s assets or undertakings;
(e) an application or order is made or a resolution is passed for the winding up of the party; or
(f) an event similar to one in paragraphs (a) to (e) occurs in respect of the party in any non-Australian jurisdiction.
Intellectual Property Rights means all industrial and intellectual property rights anywhere in the world, including:
(a) copyright, patents, trade marks, plant breeder’s rights, rights in circuit layouts, registered designs and any right to have confidential information kept confidential; and
(b) any application or right to apply for registration of any of the rights referred to in (a).
(a) any liability, cost, expense, loss, personal injury (including illness), death or damage; and
(b) in relation to a Claim, Loss includes amounts payable on the Claim and (whether or not the Claim is successful), legal costs and disbursements on a full indemnity basis.
Moral Rights are defined in section 189 of the Copyright Act 1968 (Cth), and includes any similar rights in any jurisdiction outside Australia.
Project means, in relation to any work that we do for you:
(a) the project described in a Purchase Order;
(b) if there is no Purchase Order, the project described in a Quote;
(c) if there is no Quote, then the project described in the Specifications; or
(d) if there are no Specifications, then the work that you have asked us to do.
Professional Rates means the fees set out in the Schedule of Fees.
Project Intellectual Property means designs, artwork, software and materials provided to you in the course of the Project, and any other Intellectual Property Rights created in the course of the Project, but does not include:
(a) the Content Management System’s (except to the extent that we have modified it) which is owned by wordpress, Joomlashack, RSJoomla and other third parties;
(b) the Website Tools (except to the extent that we have modified them); or
(c) Client Content.
Purchase Order means a document issued (in writing or electronically) by us to you that sets out:
(a) the services that we will provided to you;
(b) the estimated times within which those services will be provided; and
(c) the fees payable to us for those services.
Quote means a quote, estimate or proposal that we provide to you in respect of any work that you have asked us to do.
Schedule of Fees means the professional services schedule attached to this document, and any replacement of that professional services schedule that we notify to you from time to time.
Services means the services that we provide to you in the course of the Project, as described in clause 3.
SEO means Search Engine Optimisation – the art and science of increasing the visibility of web pages in searches using search engines on the web.
Social Media means web based tools such as Facebook, LinkedIn, Twitter…
Specifications means specifications for the work that you have asked us to do, and that you provide to us before or at the commencement of the Project.
Support means the supply of paid support services to assist in the management; maintenance; training for; and repair of a Digital White Space supplied/built/maintained website.
Title Guarantee means a guarantee pursuant to any of sections 51, 52 or 53 of the Australian Consumer Law.
Warranty is any fix required to a supplied Digital White Space website within 28 days of launch. The determination of warranty labour is at Digital White Space’s discretion.
Website means the website that we develop for you in accordance with clause 11.
Website Tools means the tools, applications or packages set out in clause 13(c).
Definitions and interpretation
- Definitions the following definitions govern the meanings of the capitalized terms of service used in this agreement:
- Advertising means all print, billboard, radio, television, cinema and electronic advertisements or commercials, all point-of-sale and direct mail materials, and any material for on-line use (including, but not only, websites and computer programs) produced or to be produced for the Client pursuant to this agreement.
- Digital White Space means Digital White Space PTY LTD ACN 610 180 099 ABN 67146816799 of 30 Miles Street, Southbank,Victoria 3006.
- Digital White Space IP means all Intellectual Property Rights arising from the provision of the Services by Digital White Space, or vested in any Advertising or material produced by Digital White Space in the course of providing the Services.
- Digital White Space Material means any material provided by or to which access is given by Digital White Space to the Client for the purposes of this agreement including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means.
- Client means the Client named in the Estimate.
- Client IP means the Intellectual Property Rights described as Copyright in graphics, branding and audio visual development (including digital copies) belonging to the Client.
- Commencement Date means the commencement date specified in the Estimate. Confidential Information of a party means any information:
- relating to the business and affairs of that party;
- relating to the clients, employees, sub-contractors or other persons doing business with that party;
- which is by its nature confidential;
- which is designated as confidential by that party; or
- which the other party knows or ought to know, is confidential, and includes all trade secrets, know-how, financial information and other commercially valuable information of that party, and in the case of Digital White Space, includes Digital White Space Material.
- Client Material means any material provided by or to which access is given by the Client to Digital White Space for the purposes of this agreement including documents, equipment, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means.
- Fees mean the fees payable by the Client determined in the agreement at 3.1(g) and by the Estimate.
- FreeTV means Commercial Advice Pty Limited ACN 056 573 007 trading as FreeTV Commercials Advice.
- Initial Period means the initial period specified in the Estimate.
- Insolvency Event in the context of a person means:
- a liquidator, receiver, receiver and manager, administrator, official manager or other controller (as defined in the Corporations Act 2001), trustee or controlling trustee or similar official is appointed over any of the property or undertaking of the person;
- the person or the person’s property or undertaking becomes subject to a personal insolvency arrangement under part X Bankruptcy Act 1966 (Cth) or a debt agreement under part IX Bankruptcy Act 1966 (Cth);
- the person is or becomes unable to pay its debts when they are due or is or becomes unable to pay its debts within the meaning of the Corporations Act 2001 or is presumed to be insolvent under the Corporations Act 2001;
- the person ceases to carry on business; or
- an application or order is made for the liquidation of the person or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the person, otherwise than for the purpose of an amalgamation or reconstruction.
- Intellectual Property Rights means all industrial and intellectual property rights, both in Australia and throughout the world, and includes any copyright, Moral Right, patent, registered or unregistered trade mark, registered or unregistered design, registered or unregistered plant breeder’s right, trade secret, know-how, right in relation to semiconductors and circuit layouts, trade or business or company name, indication or source or appellation of origin or other proprietary right, or right of registration of such rights.
- Moral Rights means:
- the right of integrity of authorship;
- the right of attribution of authorship; and
- the right not to have authorship falsely attributed, including those rights as conferred by the Copyright Act 1968 (Cth), and rights of a similar nature anywhere in the world whether existing before, on or after the commencement of this agreement.
- Estimate means the estimate attached to this agreement which forms part of the agreement and its terms.
- Services means the services specified in clause 2.
- Supply has the meaning given to that term in the GST Act.
- Special Conditions means any special conditions agreed between the parties included in the Estimate.
- In this agreement:
- a singular word includes the plural and vice versa;
- a word which suggests one gender includes the other gender;
- a reference to a party to this agreement or any other document or agreement includes the party’s successors, permitted substitutes and permitted assigns;
- a reference to a document or agreement (including a reference to this agreement) is to that document or agreement as amended, novated, supplemented, varied or replaced;
- a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
- a reference to a person includes a corporation, trust, partnership, unincorporated body, government and local authority or agency, or other entity whether or not it comprises a separate legal entity;
- no rule of construction applies in the interpretation of this agreement;
- a reference to ‘$’ or ‘dollar’ltation with the Client to establ is to Australian currency;
- the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’ or ‘for example’ (or similar phrases) do not limit what else might be included;
- clause headings are for convenient reference only;
- a reference to a party is a reference to Digital White Space or the Client, and a reference to the parties is a reference to both Digital White Space and the Client.
- If there is any inconsistency between the provisions of this agreement a descending order of precedence will be accorded to the agreement first and then the Estimate so that the provision in the higher ranked document, to the extent of the inconsistency, will prevail.