‘ACL’ means the Australian Consumer Law as set out in the Competition and Consumer Act 2010 (Cth).
‘Client’ or ‘You’ means you, the party as named in the Proposal which is hiring us to provide the Services.
‘Englander Davis Hourly Rate’ means the Englander Davis Hourly Rate set out in the Proposal.
‘Fee’ means the price for the Services, or Projectas set out in the Proposal.
‘Fee Payment Schedule’ means the Fee Payment Schedule set out in the Proposal.
‘Project’ means the Project, work or content described in the Proposal.
‘Project Commencement Date’ means the Project Commencement Date set out in the Proposal.
‘Project Completion Date’ means the Project Completion Date set out in the Proposal.
‘Proposal’ means the Proposal document which sets out the key details of the Project and the Services and is signed by the Client.
‘Services’ means the website design and development services, landing page development services, graphic design services, social media organic services, search engine optimisation services, Google advertisement services, social media advertisement services, brand reputation and building services or other related services as outlined in the Proposal as well as any other services that may be agreed in writing from time to time.
‘We’, ‘us’, ‘our’or ‘Englander Davis’ means Englander Davis ABN95 626 751 031.
2.1. Englander Davis agrees to commence the Project on the Project Commencement Date.
2.2. For web design or similar Projects that do not involve ongoing Services, a Project Completion Date may be stated in the Proposal. For Projects that involve marketing or similar Services, the Services may be provided on an ongoing basis, so a Project Completion Date may not be stated in the Proposal.
2.3. In the event that a Project Completion Date is stated in the Proposal, Englander Davis willdeliver the Project by the Project Completion Date, subject to any limitations set out in these Terms.
2.4. In the event of any delay in delivery, Englander Daviswill notify the Client to discuss and agree an alternate date.
2.5. The Client acknowledges that any late provision of any materials, information or responses that Englander Davis may have requested or require may result in a delay to delivery of the Project. The Client acknowledges that Englander Davis is not responsible for any such delay.
2.6. Unless otherwise stated in writing, the Services will include a first version of the Project and up to three reasonable changes at no further cost to the Client. A ‘reasonable change’ means a non-material, minor change only. Any structural, substantial changes or new material not included in the original Proposal will be charged at theEnglander Davis Hourly Rate at the time of the request. If the Client requires more than three reasonable changes, then the additional changes will be charged at the Englander Davis Hourly Rate at the time of the request.
2.7. Requested revisions must be returned to Englander Davis within one week of submission of the first version of the Project or as otherwise agreed. Any late delivery of revisions by the Client to Englander Davis may result in a delay to finalisation of any Project as Englander Davis may have blocked their time out for other work and clients.
2.8. Englander Davis will complete and deliver the Project with the final revisions within one week of receiving revision requests; with the exception of any agreed Projects for which Englander Davis and the Client have agreed an alternative timeframe.
3.1. In consideration for Englander Davis’s performance of the Services and delivery of the Project, the Client agrees to pay the Fees as set out in the Proposal.
3.2. Unless otherwise specified in writing, any Fees set out in the Proposal are exclusive of goods and services tax (‘GST’). If GST applies to the Fees, this will be payable by the Client in addition to the Fees.
3.3. When you ‘the client’ engage in marketing services fees are due as per the invoice sent. Failure to pay on time, without contact with the office to discuss the situation, will result in all work being paused and the debt being passed over to a debt collector service.
3.4. If no dates are set out in the Fee Payment Schedule, and unless otherwise agreed in writing,for web design or similar Projectsthat do not involve ongoing Services, the Fees are payable as follows:
3.4.1. 50% payable upon signing the Proposal; and
3.4.2. 50% payable upon delivery of the Project.
3.5. In the event of any unreasonable delay attributable to the Client, including but not limited to delivery of information by the Client, lack of response or communication, or any other delay, Englander Davis may stop work and terminate the Services. All fees for work completed to date become immediately due and payable up to and including the date of any termination.
3.6. For Projects that involve marketing or other ongoing Services:
3.6.1. Englander Davis provides the Services on a monthly basis with no lock in period;
3.6.2. The monthly Fees are as set out in the Proposal;
3.6.3. The monthly Fees may be updated from time to time. By continuing to use the Services after having been notified in writing of updated Fees, the Client agrees to the updated Fees;
3.6.4. The Client may cancel the Services at any time by providing one month’s notice and paying all outstanding Fees;
3.6.5. Upon cancellation, the Client will maintain access to the Services until the end of the current monthly billing period. No portion of the Fees will be refunded for Services cancelled during a billing period (unless otherwise required by law);
3.6.6. Englander Davis will hand over any relevant documents and/or website administrative privileges to the Client once all outstanding Fees have been paid by the Client.
3.7. In the event thatEnglander Davis attends the Client’s worksite in person, travel time will be charged at the Englander Davis Hourly Rate for any travel in excess of 15 minutes from Englander Davis’s Bokarina location.
3.8. Fees are processed via Stripe or other similar payment methods. In order to engage Englander Davis, the Client must also agree to any relevant terms and conditions of Stripe or of any other relevant payment provider.
3.9. In the event thatthe Client requests Englander Davis to perform any additional work beyond what is set out in the Services and the Project, such additional work will be charged at the Englander Davis Hourly Rate.
3.10. The Englander Davis Hourly Rate may be updated from time to time. By engaging Englander Davis to perform ongoing services after having been notified in writing of any updated Englander Davis Hourly Rate, the Client agrees to the updated Englander Davis Hourly Rate.
3.11. No Fees are refundable for change of mind. In the event that the Client chooses not to continue with the Services after having paid any portion of the Fees, then those Fees will be forfeited (unless otherwise provided by the ACL or other applicable laws).
3.12. No login information or passwords will be provided to the Client until all Fees have been paid in full.
4.1. Englander Davis maydesign websites using WordPressor other similar content management systems.
4.2. Upon completion of the Project and payment of all Fees by the Client, Englander Davis will transfer to the Client all rights to the Project which Englander Davis holds or controls.
4.3. For a web design or web development Project, once the Project goes live, Englander Davis will check the Project for any errors that may have occurred in the ‘go-live’ process and will rectify such errors at no cost to the Client.
4.4. In the event that theProject involves website design using a purchased WordPress theme, or a subscription with a content management system, the Client is responsible for the costs of any WordPress templates, hosting and/or content management system subscription fees, in addition to the Fees for the Services and the Project.
4.5. The Client acknowledges that any website provided by Englander Davisin connection with the Project may break, develop errors, or become unresponsive at a later date for a variety of reasons, such as:
4.5.1. if the Client fails to renew a licence or subscription in relation to the website;
4.5.2. if a relevant content management system, relevant hosting provider or any other relevant platform or provider releases an update or makes a change which is incompatible with the website.
4.6. Upon delivery of the Project to the Client, and formal approval of the Project by the Client, Englander Davis is released from any further obligations in relation to the Project. Unless otherwise agreed in writing, Englander Davis is not responsible for any ongoing maintenance, troubleshooting or updates of the Project.
5.1. Englander Davis strives to respond within 24 hours to all Client queries made on weekdays (excluding public holidays). Client queries made within 24 hours of a weekend or public holiday may receive a response on the following workday.
6.1. Englander Davis agrees that they will be the sole author of the Project or will use their own professional qualified employees or contractors. Englander Davis shall be solely responsible for any employees or contractors they use to assist with any Project and will vet all final versions prior to presentation to the Client.
6.2. The Client is responsible for written approval required for the completion of the Project within the agreed timeframe. Payment of the invoice rendered by Englander Davis or any publication or use of the Project also constitutes formal approval of the Project.
7.1. The Client acknowledges and agrees that Englander Davis may engage contractors, consultants or other third parties (‘Contractors’) to perform some or all of the Services on Englander Davis’s behalf.
7.2. Englander Daviswill ensure that any Contractors that Englander Davismay engage from time to time will have the relevant qualifications or experience and will comply with Englander Davis’s obligations under these Terms, including those obligations in relation to confidentiality.
8.1. In the event that the Client engages any third-party services directly, or otherwise independently from Englander Davis(for example, if the Client purchases a subscription for website hosting or for a content management system, or purchases any stock photographs, video or other content) (‘Third Party Services’), the Client does so at the Client’s sole risk.
8.2. The Client acknowledges and agrees that although Englander Davismay suggest or recommend particular Third Party Services from time to time, Englander Davismakes no representations, warranties or guarantees that the Third Party Services will be fit for purpose or appropriate for the Client’s circumstances. In the event of any problems with the Third Party Services, Englander Davisshall not be liable in any way and the Client must address these problems directly with the provider of the Third Party Services.
9.1. While Englander Davis makes all efforts to ensure that the Project is reviewedand accurate where applicable, there is no guarantee that every Project is completely free from errors or missing content. The onus is on the Client to ensure all requested or required content is included in the Project and identification of any errors or changes required before final approval.
9.2. As the Project and Services are generally based on the materials, content and information provided by the Client, Englander Davis is not responsible for errors occurring in the Project or work related to the Project after approval of the Project by the Client.
9.3. Englander Davis is not responsible for errors occurring in the Project as a result ofanything that the Client does, including but not limited to any alterations performed by the Client.
10.1. ‘Confidential Information’ means all information of a confidential nature concerning the Client and its products, disclosed to Englander Davis by the Client and includes any written or oral information that is provided by or disclosed directly or indirectly through any means that is not already in the public domain.
10.2. Materials and work may be provided to Englander Davis from time to time in order to enable provision of the Services. Englander Davis shall exercise due care not to disclose Confidential Information to any third party without express written permission of the Client and will only use the Confidential Information in order to enable the provision of the Services.
10.3. Despite anything contained in this clause, Englander Davis may disclose Confidential Information to the extent required by law or a regulatory authority.
10.4. During the term of this arrangement and after its termination, all information concerning fees, payment arrangements, terms and any other information disclosed by both parties, shall be treated as Confidential Information by both parties.
Englander Davis warrants that:
11.1. The Project material and design provided as part of the Services is original and does not infringe the intellectual property of any third party. Where images or materials are provided as stock or purchased on a licence basis by Englander Davis, Englander Davis will ensure the Client has been assigned all rights to the licence of any images or materials purchased.
11.2. In providing the Services, they will comply with general law and industry standards.
11.3. The Project will be original and unique work and will not knowingly breach any thirdparty rights.
11.4. The work performed to provide the Services will be done to a high standard in accordance with best practice.
11.5. The scope of the Services will be limited to the description provided in the Proposal, these Terms and as may be agreed in writing from time to time.
In addition to any other obligations set out under these Terms, the Client warrants that the Client will:
12.1. Pay all Fees when due;
12.2. Comply at all times with these Terms;
12.3. Be courteous and respectful in all dealings with Englander Davis;
12.4. Promptly respond to all reasonable requests from Englander Davis; and
12.5. Promptly provide any information reasonably requested by Englander Davis.
The Client acknowledges and agrees that:
13.1. They will provide all relevant information required for Englander Davis to carry out the Services in a timely manner.
13.2. They will supply the outline for the work and Services and any research material that Englander Davis may require to complete the Services, including any person to be available to respond to queries or additional information that Englander Davis may require to finalise the Project.
13.3. All work is completed based on and in accordance with the Client’s instructions.
13.4. In the event that the Project and the Services involve any third party resources or platforms (such as WordPress templates or third party hosting providers) the Client must agree to any terms and conditions relating to such third party resources or platforms.
13.5. Englander Davis cannot control where and how any Project may be amended, posted, published or otherwise used by the Client and for this reason, the Client agrees Englander Davis is not responsible for any Project or Services after they are provided and approved.
13.6. Any material or content (‘Material’) provided by the Client which forms part of the Services or Project is the responsibility and liability of the Client and the Client will indemnify Englander Davis for any direct or indirect claims including any third party claims in relation to the Material or use of the Project.The Client warrants that all Materials provided to Englander Davis are either owned by or licensed to the Client for the use provided.
13.7. Englander Davis does not guarantee any increase in revenue, increase in business or other similar outcomesas a result of the Services or the Project.
13.8. Search engine optimisation is a dynamic field and results are difficult to anticipate. As a consequence, Englander Daviscannot guarantee that any search engine optimisation services will produce any particular results whether relating to an improvement in internet presence, increase in revenue, increase in website traffic, increase in business or otherwise.
14.1. Legislation may confer certain rights, warranties and guarantees and remedies relating to the provision of the Services which cannot be excluded, restricted or modified, including but not limited to ACL. At no time are these statutory rights sought to be excluded.
14.2. The Client agrees to indemnify and hold Englander Davis harmless from and against all claims, demands, regulatory proceedings and/or causes of action, and all damages, liabilities, costs (including settlement costs) or associated expenses (including legal fees) resulting from written or published material produced for the Client, or arising in connection with any information or material supplied by the Client, or from any act or thing done on the Client’s instructions or with the Client’s approval.
15.1. Due to the nature of the Services and the Project, there is no guarantee of any particular outcome from the Services, including but not limited to an increase in performance, business, revenue, traffic, responses or any aspect of the business as a result of the Services. As the Services, the Project, and all related work is unique, it will be provided on an ‘as is’ basis to a professional standard for work and Services of this type.
15.2. Englander Davis is not in control of where and how the work produced from the Services or the Project may be interpreted, analysed or used once provided to the Client. Once Englander Davis produces and delivers the Project, it is no longer responsible in any way for the use of the Project and is not in any way liablefor any loss that may result from how and where the work is used by the Client.
15.3. The Client will provide all relevant information required for Englander Davis to carry out the Services and deliver the Project in a timely manner.
16.1. Subject to full payment by the Client of invoices, and subject to any third partyterms, all ownership and IP in content of the Project and Services belongs to, will be assigned to and will vest in the Client subject to use by Englander Davis for promotional purposes. Any outstanding work, Projects and Services remain the property of Englander Davis and may not be used, altered, redistributed or published by the Client until payment in full has been made and received by Englander Davis.
16.2. Notwithstanding the previous sub-clause, in some cases the Project may involve third party terms which means that any IP in the Project is subject to those third partyterms. For example, for websites that are developed using Divi, these remain subject to Divi’s terms and conditions.
16.3. In the event that the Project involves a third party platform or service, then subject to full payment by the Client of invoices, Englander Davis will provide all relevant account information and administrative privileges to the Client so that the Client is able to make full use of the Project.
17.1. Generally, any Images required for any content of the Project is to be provided by the Client unless otherwise agreed. The Client takes full responsibility for ensuring their imagery is correctly licensed to the Client and/or Englander Davisfor the purposes of the intended use or is otherwise owned by the Client.
17.2. If the Client is unable to prove that a valid licence exists and was purchased, the liability of any infringement will fall on the Client. Any third party claims are to be managed by the Client and they agree to indemnify Englander Davis for any such claim.
17.3. From time to time, the Client may request Englander Davis to provide Images as part of the Services. All Images, materials and work are provided without warranties of any kind, both express and implied. In the event of any such request by the Client for Images, the Client agrees to pay any additional fees for licensing or use as may be incurred and invoiced by Englander Davis.
17.4. As a consequence of engaging the Services, Englander Davis has the right and permission to use the Client’s name and logo for their own business promotional and advertising purposes. If the Client does not wish to have their name and logo used for such purposes, they agree to inform Englander Davis in writing of such refusal and Englander Davis agrees to remove any reference to the Client in relation to their business and Services.
18.1. The Client agrees to pay the Fees as set out in the Proposal, and to pay all invoices by the date specified in the invoice. Any late, overdue or unpaid invoice amounts will incur penalty interest at the interest rate stated in the invoice or otherwise at the annual rate of 10% pro rata.
18.2. As Englander Davis has set aside time for completing the work, and once the Client approves the Project, all monies are non-refundable (except as otherwise provided under the ACL or other relevant laws). Any cancellation of the Services or the Project, once confirmed by the Client, will result in a forfeit of any deposit. Where there is no deposit paid in advance, the full amount of the Project, as stated in the Proposal, becomes immediately due and payable.
18.3. In the event that the Client fails to pay any invoices in accordance with the terms of the invoice or these Terms, or does not perform their obligations under these Terms, Englander Davis may refuse to continue to provide the Services and may terminate the arrangement immediately without notice. Any cancellation of Services or termination by either the Client or Englander Davis results in all outstanding fees becoming immediately due and payable. Englander Davis may also commence proceedings to collect any outstanding debts owed.
19.1. The Client acknowledges and agrees that events may occur which delay or suspend the performance of the Services for reasons outside of Englander Davis’s control. In the event that the Services are dependenton factors which may be outsideEnglander Davis’s control, Englander Daviswill not be responsible for any delays as a result of such factors.
19.2. Englander Davisis not responsible for any force majeure event which may delay, suspend or make the delivery of the Services or the Project commercially impracticable, inadvisable or impossible and require any termination of all or part of the Services or the Project. In particular,Englander Davisis not liable for any failure of or delay in the delivery of the Services and the Project where such failure or delay is due to causes beyond the Englander Davis’s reasonable control, including but not limited to acts of God, flooding, war, strikes or labour disputes, embargoes, government orders or any other force majeure event.
19.3. In the event that the Client delays the Services or any part thereof, additional costs may be incurred, for example where equipment, travel, production teams and other resources were booked.
19.4. For Projects that involve marketing or other ongoing Services, if the Client causes any delays (for example, by failing to provide information required by Englander Davis), the Client will still be liable for monthly Fees, even if Englander Davis is unable to provide the Services.
19.5. There may be additional costs involved should the Client request any specific requirements orrestrictions which may contribute to or cause the delay in commencement or finalisation of the Services or the Project.
20.1. If at any time any aspect of the Services are not reasonably acceptable to the Client, or the parties disagree in some way in relation to the Services, the Project or these Terms, the Client will immediately notify Englander Davis and provide details of the Client’s concerns, and will give a reasonable opportunity for the Englander Davis to respond and address any concerns.
20.2. If a dispute arises, both parties agree that confidentiality is paramount to the reputation of both the Client and Englander Davis. At no time will any communications or discussions be made public, including but not limited to any online reviews on websites or within social media websites of either party. Any public discussion or comments about either party may be considered defamatory, negative or otherwise damaging and will be the subject of compensation in any mediation or litigation claim.
20.3. In the event of any dispute in relation to the Services or the Project which cannot be resolved directly between the parties, both parties agree to obtain an independent professional arbitrator/dispute resolution specialist to make a determination on the dispute and each party agrees to pay its own costs.
21.1. The relationship under these Terms is that of principal and independent contractor. At no time is Englander Davis a partner, agent, employee or joint venture partner of the Client. No act or omission of either party is to bind the other party except as expressly set out in these Terms.
22.1. These Terms are governed by the laws of Queensland, Australia. Both parties agree to submit to the non-exclusive jurisdiction of the Courts of Queensland for determining any dispute concerning these Terms.
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