TERMS AND CONDITIONS

DEFINITIONS

Agreement means the Letter of Agreement, Terms and Conditions and any other attached documents.

Project means the scope and purpose of the Client’s identified usage of the work product as described in the Letter of Agreement (see agreement).

Services means all services and the work product to be provided to Client by Webserv Pty Ltd as described and otherwise further defined in the Project Proposal.

Final Deliverables means the final versions of Deliverables provided by Webserv Pty Ltd and accepted by Client.

Deliverables means the services and work product specified in the Letter fo Agreement to be delivered by Webserv Pty Ltd to Client.

Client Content means all materials, writing, images or other creative content provided by Client used in preparing or creating the Deliverables.

Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.

Webserv Pty Ltd Tools means all design tools developed and/or used by Webserv Pty Ltd in performing the Services, including pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.

COMPENSATION

Fees. Client agrees to pay Webserv Pty Ltd the fees listed in the Letter of Agreement.

Hosting Final Deliverables: Webserv Pty Ltd will host the Final Deliverables on Webserv Pty Ltds web space while the Project is under construction.

PAYMENT

Payment Schedule: Payment is scheduled to the same day of every month, This day is reliant on the sign up date.

Invoices: All invoices are payable within 7 DAYS of receipt. Invoices shall list the services payable as separate items.

Direct Debit: All purchases through our shopping cart are automatically set to debit your credit card periodically, as agreed on for the term of the offer, or once off.

LATE PAYMENT

Late Fee: A monthly service fee of 1.5 percent, or the maximum allowed by law, is payable on all overdue balances.

Crediting Late Payments: Payments will be credited to late payments first, then to unpaid balances.

Collection Expenses: Client shall pay all collection or legal fees caused by late payments.

Withholding Delivery: Webserv Pty Ltd may withhold delivery and transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full.

Withholding License: All grants of any license to use or transfer ownership of any intellectual property rights under this Agreement are conditioned on full payment, including all outstanding Additional Costs, Expenses, Fees, or any other charges.

WEBSITE PACKAGES

12 month terms: All standard website packages have a minimum cost per month for 12 month. This is the agreed value of the product.

Post 12 month: The cost of product for all websites without a shopping cart will revert to standard cost of hosting $60/month. Shopping cart website standard hosting cost is $100/month.

Domain names: If you don’t have your own domain, Webserv Pty Ltd will include it for the first 24 month as part of the package price.

CHANGES TO PROJECT SCOPE

Change Request: If Client wants to change the Scope of Work after acceptance of this Agreement, Client shall send Webserv Pty Ltd a written Change Order describing the requested changes in detail. Within 2 DAYS of receiving a Change Order, Webserv Pty Ltd will respond with a statement proposing Webserv Pty Ltds availability, additional fees, changes to delivery dates, and any modification to the Terms and Conditions. Webserv Pty Ltd will evaluate each Change Order at its standard rate and charges.

Minor Change: If Client requests are not Major Changes, Client will be billed on a time and materials basis at Webserv Pty Ltd’s hourly rate of $140 plus GST per hour. Such charges shall be in addition to all other amount payable under this Agreement, despite any maximum budget, contract price or final price identified. Webserv Pty Ltd may extend or modify any delivery schedule or deadlines in the Agreement as may be required by such changes.

Acceptance/Rejection: Client is deemed to accept the agreement when first payment have been received and have not written to Webserv Pty Ltd within 48HOURS with a change request.

DELAYS

Webserv Pty Ltd Delays: Webserv Pty Ltd shall use all reasonable efforts to meet the Work Plan and delivery schedule. Webserv Pty Ltd may extend the due date for any Deliverable by giving written notice to Client. The total of all extensions shall not exceed 14 days.

Client Delays: Client shall use all reasonable efforts to provide needed information, materials and approvals. Any delay by Client will result in a day-for-day extension of the due date for all Deliverables.

General Delays: Any delay caused be conditions beyond the reasonable control of the parties shall not be considered a breach and will result in a day-for-day extension any performance due. Each party shall use reasonable efforts to notify the other party, in writing, of a delay. Conditions beyond the reasonable control of the parties include, but are not limited to, natural disasters, acts of government after the date of agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war, terrorism and epidemics.

EVALUATION AND ACCEPTANCE

Testing: Webserv Pty Ltd will test and correct Deliverables using commercially reasonable efforts before providing Deliverables to Client.

Approval Periods: Client shall, within 2  business days after receiving each Deliverable, notify Webserv Pty Ltd in writing of any failure to comply with the specification of the Project Proposal or of any other objections, corrections or changes required. Webserv Pty Ltd shall, within 48HOURS of receiving Clients notification, correct and submit a revised Deliverable to Client. Client shall, within 489HOURS of receiving a revised Deliverable, either approve the corrected version or make further changes. If after 2 corrections by Webserv Pty Ltd, Client finds the Deliverables are not acceptable, Client may terminate this agreement subject to the termination clauses of this Agreement. If Client fails to provide approval or comments during any approval period, those Deliverables will be considered approved and accepted. All objections, corrections and changes shall be subject to the terms and conditions of this Agreement.

CLIENT RESPONSIBILITIES

Client acknowledges that it is responsible for performing the following in a reasonable and timely manner: (a) Provide Client Content in a form suitable for use in the Deliverables without further preparation by Webserv Pty Ltd, unless otherwise specified in the Project Proposal; (b) Proofread all Deliverables.

ACCREDITATION AND PROMOTION

Accreditation: Webserv Pty Ltd shall be entitled to place accreditation, as a hyperlink or otherwise, in the form, size and location as incorporated by Webserv Pty Ltd in the Deliverables on each page of the Final Deliverables.

Promotion: Webserv Pty Ltd retains the right to reproduce, publish and display the Deliverables in Webserv Pty Ltd’s portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.

Promotional Approval: Either party, subject to the other’s reasonable approval, may describe its role in the Project on its website and in other promotional and marketing materials, and, if not expressly objected to, include a link to the other party’s website.

CONFIDENTIAL INFORMATION

Client’s “Confidential Information” includes information that Webserv Pty Ltd should reasonably believe to be confidential. Webserv Pty Ltd’s “Confidential Information” includes the source code of any Webserv Pty Ltd Tools. All material considered confidential by either party shall be designated as confidential. Confidential Information shall not be disclosed to third parties and shall only used as needed to perform this Agreement.

Confidential Information shall not include any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure.

RELATIONSHIP OF THE PARTIES

Independent Contractor: Webserv Pty Ltd is an independent contractor. Webserv Pty Ltd shall determine, in its sole discretion, the manner and means by which the Services are accomplished. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Webserv Pty Ltd and the work product or Deliverables prepared by Webserv Pty Ltd shall not be deemed a work for hire as defined under Copyright Law. All rights granted to Client are contractual in nature and are expressly defined by this Agreement.

Design Agents. Webserv Pty Ltd shall be allowed to use third party’s as independent contractors in connection with the Services (“Design Agents”). Webserv Pty Ltd shall remain fully responsible for Design Agents’ compliance with this Agreement.

No Exclusivity. This Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Webserv Pty Ltd, and Webserv Pty Ltd shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Webserv Pty Ltd.

REPRESENTATIONS AND WARRANTIES

By Client. Client represents and warrants to Webserv Pty Ltd that: (a) To the best of Client’s knowledge, use of the Client Content does not infringe the rights of any third party; (b) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials; (c) Client will obtain all necessary and appropriate rights and licenses to grant license to Webserv Pty Ltd to use Third Party Materials.

By Webserv Pty Ltd: Webserv Pty Ltd represents and warranty to Client that: (a) Webserv Pty Ltd will provide the Services identified in the Agreement in a professional and workmanlike manner; (b) Webserv Pty Ltd shall secure all necessary rights, title, and interest in and to the Final Deliverables, including Webserv Pty Ltd Tools, sufficient for Webserv Pty Ltd to grant the intellectual property rights provided in this Agreement; (c) To the best of Webserv Pty Ltd’s knowledge, the Deliverables will not violate the rights of any third parties; (d) If Client or third parties modify the Deliverables or use the Deliverables outside of the scope or purpose of this Agreement, all representations and warranties of Webserv Pty Ltd shall be void.

EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, WEBSERV PTY LTD MAKES NO WARRANTIES WHATSOEVER. WEBSERV PTY LTD EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.

INDEMNIFICATION AND LIABILITY

By Client: Client shall indemnify Webserv Pty Ltd from any and all damages, liabilities, costs, losses, expenses or attorney fees arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Webserv Pty Ltd shall promptly notify Client in writing of any third party claim or suit. Client shall have the right to fully control the defense and any settlement of such claim or suit.

By Developer: In the case of a third party lawsuit or proceeding based on a claim that Deliverables breach the third party’s intellectual property rights, and it is determined that such infringement has occurred, Webserv Pty Ltd may at its own expense, replace any infringing content with non-infringing content.

Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF WEBSERV PTY LTD ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF WEBSERV PTY LTD, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“WEBSERV PTY LTD PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF WEBSERV PTY LTD. IN NO EVENT SHALL WEBSERV PTY LTD BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY WEBSERV PTY LTD, EVEN IF WEBSERV PTY LTD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

TERM AND TERMINATION

Term: This agreement shall begin when both parties sign the Letter of Agreement and approve the terms and conditions. It shall continue until the full contractual value is paid and a written notification is received with 30 days cancelation period

Termination for Insolvency: Either party may terminate this agreement at any time, on written notice to the other party, if the other party ceases to conduct business in its normal course; makes an assignment for the benefit of creditors; is liquidated or otherwise dissolved; becomes insolvent; files a petition in bankruptcy; or a receiver, trustee, or custodian is appointed for it.

Termination by Mutual Agreement: This agreement may be terminated by the mutual agreement of the parties.

Termination Fees: In the event of termination, Client shall pay Webserv Pty Ltd for the Services performed through the date of termination in the amount of a prorated portion of the fees due. Client shall pay all Expenses, Fees, and Additional Costs incurred through the date of termination.

Intellectual Property: If Client terminates and on full payment of compensation, Webserv Pty Ltd grants Client right and title as provided by this Agreement with respect to those Deliverables provided and accepted by Client as of the date of termination.

Confidential Information: On expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) all rights and obligations regarding Confidential Information shall survive.

RIGHTS TO FINAL ART

License: Webserv Pty Ltd grants to Client a non-exclusive, perpetual and worldwide  license to use and display the Final Deliverables in accordance with this Agreement. The rights granted to Client are for use of the Final Deliverables in its original form only. Client may not change, create derivative works or extract portions of the Final Deliverables.

 Liquidation for unlicensed use: Additional use of any Deliverables by Client outside the scope of the license granted above requires additional fees.

RIGHTS TO DELIVERABLES OTHER THAN FINAL ART

Client Content: Client Content is the exclusive property of the Client. Client grants Webserv Pty Ltd a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Webserv Pty Ltd’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.

Webserv Pty Ltd Tools. All Webserv Pty Ltd Tools are and shall remain the exclusive property of Webserv Pty Ltd. Webserv Pty Ltd grants Client a nonexclusive, nontransferable, perpetual, worldwide license to use the Webserv Pty Ltd Tools solely to the extent necessary with the Final Deliverables for the Project.

Release of website files. If Client decide to terminate the agreement outside of the contractual commitment the Client can pay to have the files released and emailed to them or their new host. Schedule of fees are:

  1. Basic Website $178
  2. Professional Website $230
  3. Ultimate Website $530
  4. E-Commerce Website $680
  5. Custom Website is calculated as 15% of total set up cost

SUPPORT SERVICES

Warranty Period. During the first 1 month following expiration of this Agreement, Webserv Pty Ltd shall provide up to 1 hour of Support Services at no additional cost to Client. Support Services means commercially reasonable technical support and assistance to maintain and update the Deliverables, including correcting any errors or Deficiencies. Requests for additional support will be billed on a time and materials basis at Webserv Pty Ltds standard rate.

No Enhancements: The services in the Warranty Period and the Maintenance Period do not include enhancements to the Project or other services outside the scope of the Proposal.

ENHANCEMENTS

During the Maintenance Period, Client may request that Webserv Pty Ltd develop enhancements to the Deliverables. Webserv Pty Ltd shall exercise commercially reasonable efforts to prioritize Webserv Pty Ltd’s resources to create such enhancements. Client understands Webserv Pty Ltd may have preexisting obligations that may delay requested enhancements. Webserv Pty Ltd shall provide any enhancements shall be provided on a time and materials basis at at Webserv Pty Ltds standard rate.

Alterations. Alteration of any Deliverable is prohibited without the express permission of Webserv Pty Ltd. Webserv Pty Ltd will be given the first opportunity to make the required alterations. Unauthorized alterations shall constitute additional use and will be billed accordingly.

DISPUTE RESOLUTION

Negotiation: Parties agree to attempt to resolve any dispute by negotiation between the parties.

Arbitration/Mediation: If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties.

Litigation: In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of QUEENSLAND. The parties waive any jurisdictional or venue defenses available to them and further consent to service of process by mail.

Attorney Fees: The prevailing party shall be entitled to recover its attorneys’ fees and costs in any dispute resolved by binding arbitration or litigation.

GENERAL

Modification/Waiver: Modifications to this Agreement must be in writing and signed by both parties. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.

Notices. All notices under this Agreement shall be given in writing either by: (a) Email, with return confirmation of receipt; (b) Certified or Registered mail, with return receipt requested. Notice will be effective when received, or in the case of email, on confirmation of receipt.

No Assignment. Rights or obligations under this Agreement shall not be transferred, assigned or encumbered without the prior written consent of the other party.

GENERAL

Modification/Waiver: Modifications to this Agreement must be in writing and signed by both parties. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.

Notices. All notices under this Agreement shall be given in writing either by: (a) Email, with return confirmation of receipt; (b) Certified or Registered mail, with return receipt requested. Notice will be effective when received, or in the case of email, on confirmation of receipt.

No Assignment. Rights or obligations under this Agreement shall not be transferred, assigned or encumbered without the prior written consent of the other party.

Governing Law. This Agreement shall be governed by the law of QUEENSLAND.

Severability: If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. Where possible the invalid or unenforceable provision shall be interpreted in such manner as to be effective and valid under applicable law.

Headings: Headings and numbering used in this Agreement are for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of this Agreement, and shall not have any legal effect.

Complete Agreement:  This Agreement is the entire understanding of the parties and supersedes all prior understandings and documents relating to the subject matter of this Agreement.

CONTACTS AND CREDITS

These terms and conditions need to be agreed on prior to completing a website package from Webserv Pty Ltd.

Thank you for reading and contact us if you have any questions.

Webserv Pty Ltd

Po Box 206

Ashgrove

M: 0427 522 220

alberto@webserv.com.au

ABN: 27 168 957 015

Credit goes to the following business who originally developed the terms and conditions on this page.

It has since been changed to fit our business and serve our client better.

Jacob C.Myers

Web Design Lawyer

https://webdesignlaw.com

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