Standard Terms and Conditions of Work
1 Definition of Terms
- The Supplier
- Soothed, PO Box 3313, Robertson, NSW 2577, Australia. ABN: 18 436 782 416
- The Client
- The entity which enters into a contract with Soothed.
- Domain Name
- The root address of a Website, e.g. soothed.com.au. All such names must be registered with the appropriate naming authority, which will usually charge a fee.
- Time when the website is not accessible via the Internet. This may be because of a technical failure of the Host or because work is being carried out on the site.
- The company on whose system the Website physically resides.
- Link, Hyperlink
- A "clickable" link embedded on a web page which may take the form of a graphic or text.
- Search Engine
- A website which contains a directory of websites on the Internet enabling users to find websites by subject matter classification.
- A collection of web pages and associated code which forms an integrated presence.
- The Work
- The subject matter of the contract between the Client and the Supplier.
2.1 Third Parties
The Supplier can take no responsibility for services provided through them or otherwise by third parties, including the Hosting of the Client's Website, although the Supplier will endeavour to ensure that Website downtime is kept to a minimum.
2.2 Maintenance and Correction of Errors
The Supplier takes no responsibility for the functionality or maintenance (unless a maintenance contract is in place) of the Website after the contract between the Supplier and the Client has been completed. Errors (both technical and typographical) attributable to the Supplier will be corrected free of charge, but the Supplier reserves the right to charge a reasonable fee for correction of errors for which the Supplier is not responsible, including, but not limited to malicious modification of the Website by a third party and typographical errors contained in materials provided to the Supplier by the Client.
2.3 Extent of Work
Installation on the Internet is limited to the uploading of all necessary files to the Host, and testing of functionality. No registration of the Website with Search Engines will be undertaken unless otherwise agreed with the Client.
2.4 Consequential Loss
Under no circumstances will the Supplier be responsible or liable for financial or other damage caused by the failure or use or misuse of their software. Customers should ensure that data on their site is regularly backed up and that a contingency plan is in place to minimize possible losses as a result of software failure.
2.5 Status and Duration of Offers
Proposals and offers are valid for a period of one month from the date issued. The Supplier is not bound to honour offers that have expired. Offers are not legally binding until an acceptable timetable for the work has been agreed by both parties. This timetable must be agreed within the month that the offer is valid. If an acceptable timetable has not been approved by both parties within one month of the offer being made, the offer is deemed to have expired.
3 Completion of Work and Payment
3.1 Completion of Work
The Supplier warrants to complete the Work in accordance with these Standard Terms and Conditions to the specifications previously agreed with the Client. The Supplier will not charge more than the amount previously agreed unless the Client has varied the specifications of the Work since the agreement. The Supplier will not undertake changes to the specifications of the Work which would increase the cost, without prior written authorisation from the Client.
3.2 Supply of Materials
The Client is to supply all materials and information required for the Supplier to complete the Work in accordance with the agreed specification. Such materials may include, but are not limited to, photographs, written-copy, logos and other printed materials. Where the Client's failure to supply such materials leads to a delay, the Supplier has the right to extend previously agreed deadlines for the completion of the Work by a reasonable amount. Where the Client's failure to supply materials prevents progress on the Work for more than 21 days, the Supplier has the right to invoice the Client for any Work already completed.
3.3 Approval of Work
On completion of the Work, the Client will be notified and have the opportunity to review it. The Client should notify the Supplier, in writing, of any unsatisfactory points within 7 days. Any of the Work which has not be reported in writing to the Supplier as unsatisfactory within the 7 day review period will be deemed to have been approved. Once approved, work cannot subsequently be rejected.
3.4 Rejected Work
If the Client rejects the Work within the 7 day review period, or will not approve subsequent Work performed by the Supplier to remedy any points reported by the Client as unsatisfactory, and the Supplier considers that the customer is unreasonable in his repeated rejection of the Work, the Supplier can take any legal measures to recover both payment for the completed Work and reasonable expenses incurred in recovering payment.
Upon completion of the Work, the Supplier will invoice the Client for the outstanding amount, which, in the absence of agreement to the contrary, is to be paid by the Client within 21 days of the date that the invoice was issued.
3.6 Remedies for Overdue Payment
If payment has not be received by the due date, the Supplier has the right to suspend ongoing work for Client, until such time that full payment of the outstanding balance has been received. If full payment has still not been received 30 days after the due date, the Supplier has the right to replace, modify or remove the Website and revoke the Client's licence of the Work until full payment has been received. By revoking the Client's licence of the Work or removing the web site from the Internet, the Supplier does not remove the Client's obligation to pay any outstanding monies owing.
3.7 Installment Payments
The Supplier will permit payment to be made by installments where both parties have agreed to this in writing prior to the contract being concluded. Where any installment payment invoiced by the Supplier becomes more than 10 days overdue, the Supplier can revoke the Client's right to pay by installments and demand that the Client pay all monies outstanding within 21 days of the demand.
4 Intellectual Property
4.1 Offers and Proposals
Offers and proposals made by the Supplier to potential clients should be treated as trade secrets and remain the property of the Supplier. Such offers and proposals or the information contained within them must not be passed to third parties or publicly disseminated without prior written authorization from the Supplier. This includes, but is not limited to, technical features, functionality, aspects of the design and pricing information.
4.2 Warranty by Client as to Ownership of Intellectual Property Rights
The Client will obtain all the necessary permissions and authorities in respect of the use of all copy, graphic images, registered company logos, names and trademarks or any other material it supplies to the Supplier for inclusion on the Website. The conclusion of a contract between the Supplier and the Client shall be regarded as a guarantee by the Client to the Supplier that all such permissions and authorities have been obtained and that the inclusion of such material on the Website would not constitute a criminal offence or civil tort. By agreeing to these terms and conditions, the Client removes the legal responsibility of the Supplier and indemnifies the same from any claims or legal actions however related to the content of the Client's site.
4.3 Domain Name
Any Domain Name obtained will belong to the Client. The Client agrees to indemnify the Supplier, including any incidental costs, against any claims that a Domain Name applied for, or obtained, violates the intellectual property rights of a third party. The Client warrants that the domain name sought is not a trademark of a third party.
Once the Supplier has received full payment of all outstanding invoices and the Work has been approved by the Client in accordance with 3.3, the Client is granted a licence to use the Website and its contents.
4.5 Trade Secrets
Any code that is not freely accessible to third parties and not in the public domain, and to which the Supplier owns the copyright, may not be copied, published, distributed or passed to any third parties in any form without prior written consent from the Supplier. Unless previously agreed otherwise in writing, no modifications may be made by the Client or any third party to code to which the Supplier owns the copyright. The Supplier acknowledges the intellectual property rights of the Client. Information passed in written form to the Supplier, and that the Client has indicated is confidential or a trade secret, will not be published or made available in any other way to third parties without the prior written consent of the Client.
5 Rights and Responsibilities
5.1 Right to Terminate if Content is Illegal
The Supplier reserves the right to refuse or break a contract without prior notice, if it is believed that the Client, their Website, or any material is illegal, immoral or otherwise unacceptable.
5.2 Events Beyond the Control of the Supplier
The Supplier will not be liable for breach of contract where that breach was due to software, hardware or electrical failure, natural events such as fire or other events beyond the control of the Supplier.
5.3 Supply and Pricing of Services
The Supplier reserves the right to use whoever it feels appropriate at the time for third party services, and to alter its prices as necessary without prior notice and without prejudice to existing contractual pricing agreements.
This agreement shall be governed by the laws of the State of New South Wales, Australia and the parties submit to the jurisdiction of the Courts of New South Wales, Australia.
6.2 Survival of Contract
Where one or more terms of this contract are held to be void or unenforceable for whatever reason, any other terms of the contract not so held will remain valid and enforceable at law.
6.3 Change of Terms and Conditions
These terms and conditions may change from time to time. Clients will be informed of revisions as and when they are issued.
Standard Terms and Conditions v1 (2004)