Website Development Services Agreement
Terms and Conditions
*V1 (8 May 2017)
These are the Terms and Conditions on which Bambrick Media Pty Ltd ABN: 86 112 089 102 (Bambrick Media) will carry out work for you. They will apply each time that you ask us to do work for you, or carry out a Service. They set out our Services and what you can expect from us. Please read them carefully. It is a condition of your use of our Services that you comply with these Terms and Conditions.
These Terms and Conditions are subject to change without notice and may be superseded. Bambrick Media may modify these Terms and Conditions by general notice on a page of our website, by email or by any other method of communication.
You may engage us to carry out a Service for you by:
- signing and returning a Pricing Structure to us; or
- providing an authorised Purchase Order; or
- in the case of smaller engagements by written verification.
Unless Bambrick Media notify you otherwise, Bambrick Media will accept that engagement, subject to these Terms and Conditions. The Service will commence in line with the Service schedule or when Bambrick Media accept the engagement.
2. PRICING STRUCTURES
If Bambrick Media provide you with a Pricing Structure for the Service, then that Pricing Structure:
- is based on the Specifications, and is subject to change if the parties agree to amend the Specifications;
- is not inclusive of GST;
- and is valid for a period of 30 days from the date Bambrick Media issue the Pricing Structure, unless otherwise agreed by Bambrick Media.
The Services that Bambrick Media provide to you, and any specific terms, may include some or all of the following:
- Third Party Software;
- Support & Maintenance Packages;
- Domain Name Services;
- Email/SMS Marketing;
- Strategy and Analytics.
You acknowledge that electronic services are subject to interruption and breakdown and all non-electronic services are subject to disruption, and therefore:
- the Services will not be error-free or uninterrupted; and your access to the Service and the operation of the Service will not be error-free or uninterrupted.
- Bambrick Media reserves the right to continue to provide the Services and/or invoice you for the Services in the event of any disruption, other than a disruption caused by Bambrick Media’s negligence or willful acts or omissions.
4. HOURS OF SERVICE
All Services will be carried out between 8:30 am and 5:30 pm (local office time), Monday to Friday excluding public holidays and the Christmas / New Year closure periods; unless specifically included as a paid additional service.
5. STAGED APPROACH
For most Projects we prefer to adopt a staged approach for planning and implementation purposes.
6. DISCOVERY STAGE
In a workshop with key stakeholders, Bambrick Media will define the keys to success, strategy, functionality, branding, look and feel, and the more complex technical aspects that will drive the Project. The deliverables for the discovery stage may include:
- functional specifications (sitemap and wireframes);
- design and/or marketing specifications;
- fixed price pricing structure for the design and/or marketing;
- estimate for development/technology;
- strategy workshop.
7. CREATIVE STAGE
Following on from the discovery stage, Bambrick Media will take control and work through our process. The technology team will work collaboratively to create and develop the technical specifications and database schema/architecture.
The deliverables for the creative stage may include:
- completed design, content and/or brand;
- technical specifications;
- database schema/architecture;
- fixed price pricing structure for development/technology.
8. DEVELOPMENT STAGE
The development stage is usually the largest and most involved. Throughout this stage Bambrick Media likes to work as close as possible with you via your Project Manager. The deliverables for the development stage may include:
- completed development;
9. TESTING STAGE
The deliverables for the testing stage may include:
- quality assurance;
- user acceptance testing.
10. GO-LIVE STAGE
Once the Project is completed, we will ensure that it is ready to go live. The deliverables for the go-live stage may include:
- server configuration;
- meta information;
- 301 redirects;
- sitemap creation and submission to Google;
- Google analytics installed.
11. PROJECT MANAGEMENT
Bambrick Media will provide specific allotted hours of project management in order to deliver this service within a set project timeframe. The primary contact for the delivery of this service will be the Bambrick Media project manager, assigned by Bambrick Media.
All correspondence for the delivery of the stages of the project or scoped services will be to and with the assigned project manager and be provided through Bambrick Media’s assigned project management system. The assigned system will deliver tasks to and from the client through emails. The system provides an auto file system that saves all correspondence in their logical fields, subjects and projects, allowing easy access to all information for the client and the project team.
This Project Management platform’s correspondence feature is mandatory for every project engaging Bambrick Media to ensure the timely delivery of projects, an approval system for stages and projects delivered to budget. Bambrick Media will provide tools, training and logins for the Project Management platform during the kickoff meeting.
Failure to utilise this feature or to not follow subject chains in the nominated project management platform will incur additional costs to cover manually transferring information to the project management platform.
12. CONTENT AND MATERIALS SUPPLIED BY YOU
You must supply to Bambrick Media all required materials you want us to use in the Service, and all other content and materials Bambrick Media reasonably request (Client Content) in a timely manner.
You must supply all Client Content in the following digital format/s:
- text/copy: Microsoft Word, Google Docs or Rich Text (clearly labelled and in correct order);
- tables: Microsoft Excel, Google Sheets (clearly labelled 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 SSH, ftp and/or CMS/hosting control panel login;
- brand style guidelines (if applicable).
Bambrick Media may charge additional costs if the Client Content is not provided in the appropriate format — appropriately named or filed in Google Drive, or if the material is not supplied when requested.
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.
13. VARIATIONS AND ADDITIONAL COSTS
If during the course of our engagement there are changes in the Specifications of the Service, the changes will be treated as a Variation.
Where a Variation occurs Bambrick Media reserves the right to halt work and review the Service costings. Bambrick Media will discuss the Variation with you and where required will issue a Variation Notice which is to include the modifications to the Specifications and any associated costs. Bambrick Media will not proceed with the Services until Bambrick Media receive your written approval to proceed.
Examples of Variations include:
- changes in the Specifications during the design stage i.e. additional pages requiring design, additional design elements/features etc.;
- additional pages, features, functionality etc. required / introduced in the development stage;
- customisation of the CMS or building an extension not specified in the approved design, Specifications or database schema/architecture;
- additional project management time;
- introduction of additional requirements not discussed during the initial workshop;
- costs for commercial fonts, photography, audio and video;
- additional Service management time;
- unplanned delays in obtaining approval, Client Content or feedback resulting in Bambrick Media
having to reschedule services, staff or facilitate continuance;
- overtime required to meet deadlines due to delays by the Client providing approval, Client Content or feedback;
- development work not specified within the original scope.
It is our process to include Service management time in all quotes, but from time to time Bambrick Media are required to not only manage the Bambrick Media team but also manage your team. This is generally not known at the time of quoting and may be treated as a Variation.
If during the course of our engagement there are small changes in the Service, Bambrick Media will contact you and provide an estimate of the Additional Costs for these small changes.
Where possible, Bambrick Media will attempt to obtain approval from you prior to undertaking the additional work. However, in some cases due to deadline and availability constraints, this may not be possible and Bambrick Media may proceed with the work without obtaining approval.
Additional Costs will be invoiced separately to the Client on an ad hoc basis, charged at current Professional Hourly Rates.
Examples of Additional Costs include:
- content not in the appropriate format;
- extra workshops or workshops requiring additional hours;
- requested additional design concepts / alternatives;
- requested changes to the design after final approval has been requested or provided;
- uploading and styling/layout of additional Client Content;
- additional meetings and travel time.
14. PURCHASE OF STOCK IMAGES, FONTS, PHOTOGRAPHY, AUDIO OR VIDEO
Unless specified in the Pricing Structure, the Fees do not include any searches or purchase of stock images, commercial fonts, photography, audio or video.
You can provide stock images, commercial fonts, audio or video, or Bambrick Media can purchase them on your behalf. When any stock images or commercial fonts are purchased on your behalf, Bambrick Media will be the license holder and the image or font can only be used under the terms of the license/s.
You indemnify, and agree to keep Bambrick Media, its directors, officers and employees indemnified, against all Loss arising out of the breach of these licenses.
Standard stock images will be charged according to our current stock image rates. Costing for any font, photography, audio or video required will be provided for approval separately via a Variation Notice.
Ownership of the finished photography, audio or video will be transferred to you upon full payment of all issued invoices. Bambrick Media retains ownership of all working files.
15. YOUR APPROVAL AND INTERPRETATION
Your approval and implementation may be required for a number of items (Approval & Implementation Item) presented to you:
- service brief;
- design concepts (and your choice of one of them);
- each updated version of the chosen design concept;
- landing page or website development;
- completed design;
- variation Notices; and
- any other item for which Bambrick Media request your approval.
When Bambrick Media provide you with any Approval Item, you must notify us in writing whether you do or do not accept the completed Approval Item.
You will be deemed to have accepted the Approval Item if Bambrick Media do not receive a response from you within 5 business days.
Your acceptance of the completed Approval Item in accordance with paragraph 8.2 or 8.3 means that the Approval Item is complete, and no further amendments are necessary. However, Bambrick Media will not proceed to the next Stage of the Service until Bambrick Media receive your approval to proceed.
There may be Additional Costs in having to reschedule services, staff or facilitate continuance due to unplanned delays in obtaining approval. If unable to perform continuance, the Client may have to pay a shutdown and subsequent restart fee commensurate to the labour and resource costs incurred.
16. SCHEDULING, PRODUCTION AND PROJECT MANAGEMENT
If Bambrick Media consider it to be necessary, Bambrick Media will develop a production schedule for the Services. Bambrick Media will use reasonable commercial endeavours to carry out the Services in accordance with that schedule.
If you delay in providing the approval, implementation, Client Content or feedback Bambrick Media require, 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, a Variation Notice will be issued, including necessary overtime costs.
Our consultancy services may include:
researching and developing a tailored strategy, campaign planning and implementation, current system review and analysis; audits, workshops, public speaking and installation;
project management of a third party or internal implementation.
Our workshop service varies in length, cost and deliverables based on the brief and other requirements.
Unless otherwise specified in the pricing structure the workshop will be held in one of the Bambrick Media offices.
Extra workshops or workshops requiring additional hours will be an Additional Cost.
Deliverables from a workshop may include:
- in-depth brief;
- stakeholder review and analysis;
- customer feedback and insights;
- recommendations and documentation;
- functional specifications (sitemap and wireframes);
- design specifications;
- marketing specifications;
- fixed price pricing structure for the design;
- estimate for development/technology.
Our design services will include:
- delivery to you of one design concept (or as specified in the pricing structure); and
- one round of alterations.
Upon completion of the alteration, Bambrick Media will supply an updated version of the design concept to you.
If you request additional concepts or alterations, or request changes to the design after final approval has been requested or provided, the work will be an additional cost.
The deliverables from the creative stage may include:
- completed design;
- technical specifications;
- database schema/architecture;
- fixed price pricing structure for development/technology.
Other design services may include:
- branding – competitor analysis, name research;
- URL review, logo trend analysis, branding options, refinement, final brand and logo and style guide;
- discussions regarding developing options for your digital marketing strategy, current system review and analysis;
- other design services.
Ownership of the finished design will be transferred to you upon full payment of all issued invoices.
Bambrick Media retains ownership of all working files.
Our copywriting services may include:
- General website text;
- Blog writing;
- EDM copy.
Our copywriting services include presentation of one copy and one round of alterations for each copy/blog.
Ownership of the finished copy will be transferred to you upon full payment of all issued invoices.
Bambrick Media retains ownership of all working files.
Our development/technology services will be derived from the pricing structure, the technical specifications, and final deliverables from discovery and design stages.
Our development/technology services may include uploading and styling/layout of the Client Content to the developed Software. If applicable we will complete a specified number of standard pages or screens of the Software. If we complete additional pages or screens for you, the additional work will be an additional cost.
A Content Management System (CMS) may be provided as part of the Project. Unless otherwise specified in the pricing structure, our services do not include customisation of this CMS, its extensions, plugins or components. Any customisation required:
- the work will be a Variation;
- the customisation, extension, plugin or component remains licensed under the original author or Bambrick Media; and
- you accept and must comply with the CMS terms and conditions in relation to your use of the customisation extension, plugin or component.
You acknowledge that the CMS and many of its extensions, plugins and components are provided by third parties, and therefore:
- we have limited control over the functionality or operation of the CMS and its extensions etc; and
- you accept and must comply with the terms and conditions of those third parties relating to the CMS.
A Standard Page or Screen is: up to 500 words, up to 3 images and up to one implementation of any tabular data.
Unless otherwise specified in the pricing structure or as agreed in writing with Bambrick Media, Bambrick Media retains ownership of the IP of any custom applications.
You acknowledge that:
- Bambrick Media is free to reuse any code, inventions, extensions, plugins or components and you grant Bambrick Media an indefinite perpetual licence to use, resell and modify.
- Ownership of the finished deliverable will be transferred to you upon full payment of all issued invoices.
- Bambrick Media retains ownership of all working files.
- Unless otherwise agreed for all apps being uploaded to an app store (iTunes, PlayStore, Windows App Store), Bambrick Media will be listed as the “developer”. If in the event the Client wishes to be the “developer” with their own account, the costs to action such transfer will be an Additional Cost.
You acknowledge that:
- the Software that is developed by Bambrick Media may run on third-party platforms, Software and environments and therefore if any of these third-party platforms, Software or environments make an update or discontinue this may cause your Software to break down, be interrupted or not operate at full functionality.
Our maintenance services consist of making modifications / updates based on the pricing structure, brief and/or Specifications.
Unless otherwise specified in the pricing structure, the Fees for modification do not include any provision for training or post-implementation support or warranty.
23. THIRD PARTY SOFTWARE
As part of a Project we may provide Third Party Software as part of the Project. You acknowledge that:
- we have limited control over the functionality or operation of the Third Party Software;
- if the third parties provide data or other information for use with the Software, we have no control over the accuracy or completeness of that information;
- you accept and must comply with the terms and conditions of the Third Party Software providers; and those Third Party Software providers may invoice you directly for ongoing costs relating to your use of the Software;
- the Fees for the Third Party Software may change from time to time. The new prices not supplied directly by the provider will apply from the date that we notify you.
The pricing structure may include training sessions of varying length, content and outcomes. Training sessions will be conducted in one of Bambrick Media’s offices, with no more than 3 trainees. If additional training sessions are required, or you wish to have additional attendees at a training session, or require training at your office, there may be an Additional Cost.
The Fees for development/technology include the provision of a limited warranty for a period of 90 days to fix identifiable bugs. Extended warranty periods are negotiable.
The warranty becomes effective from the date of Finalisation.
All identified bugs must be reported within the Warranty period.
It is your responsibility to review and test the Software and ensure you are satisfied with it during the testing and warranty periods.
Any modifications that are not defined as a bug for the purposes of this warranty will be quoted for separately or placed on a Support & Maintenance Package. Any bugs that fall outside the warranty period will be quoted for separately or placed on a Support & Maintenance Package.
When open source Software, such as WordPress, Magento, MySQL, PHP and Apache, is used to build and host websites, we cannot guarantee that these open source Software products are error-free. Any work required to address bugs, version or system updates, are not included under the Warranty and will be quoted for separately, or placed on a Support & Maintenance Package.
Any bug fixes or changes required as a result of upgrades to mobile operating systems like iOS, Android or Windows, are not included under the Warranty and will be quoted for separately, or placed on a Support & Maintenance Package.
Unless otherwise specified in the pricing structure, Warranty will only apply to:
- the latest 2 versions of Chrome, Firefox and Safari;
- the latest 2 operating systems of Windows, Android and iOS smartphones;
at the time of the Finalisation.
The determination of warranty labour is at Bambrick Media’s discretion.
26. SUPPORT & MAINTENANCE PACKAGES
Support and maintenance services are a paid service utilising paid Support & Maintenance Packages.
Our support services consist of, but are not limited to:
- answering your technical questions relating to the Software, its operation and the Content Management System and the extensions, plugins or components provided with it; and
- resolving technical issues that arise in relation to the Software or its operation, except as set out above.
Our maintenance services may consist of, but are not limited to:
- website backup & recovery;
- CMS updates;
- plug-in updates;
- hosting space increases;
- general design services;
- general copywriting services;
- general development services;
- general marketing services;
- small updates to Software;
- design and development of landing pages;
- out of warranty bug fixes;
- out of scope project work – design or development;
- data entry;
- content changes;
- general project management.
Our support and maintenance services do not include resolving:
- issues that relate to your networks, email, computer systems or Software;
- other technical issues not arising directly from the Software.
You may be required to provide to us, at your own cost, access to the Software and your computer network and any systems required 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 & maintenance services; and
- we are not obliged to return to you any portion of the Fees that you have paid to us for the provision of the support & maintenance service.
Support & Maintenance Package reduced hourly rate deals require that the Support & Maintenance Package be paid for in full before any work is undertaken. Work undertaken outside of a Support & Maintenance Package will be charged at our current Professional Hourly Rates.
Support & Maintenance Packages are not designed for major creative, technology, development or marketing tasks rather for tasks that can be completed within a maximum of 40 hours. Any work that will require more time than this to complete will require a pricing structure.
Estimated time to complete requested support and maintenance tasks may be provided when, and if possible, at Client’s request. Commencement of support tasks will start upon receipt of written support brief/request, confirmation of time estimate provided (where required and possible) and availability of hours on a Support & Maintenance Package.
Support & Maintenance Package activities are limited to Software and Services created by Bambrick Media.
Unused Support & Maintenance Packages will not be refunded.
If we provide hosting services for the Website, those hosting services are governed by our Web Hosting Terms of Service and our Acceptable Use Policy available on our website.
28. DOMAIN NAME SERVICES
Bambrick Media does not represent or warrant the availability, suitability or registerability of any domain name.
Bambrick Media will not, at any time, assume any liability whatsoever in respect of the use of any domain name. Any disputes arising must be resolved between the parties involved.
You must not transfer a domain name to another internet service provider unless you have first paid all Bambrick Media accounts in full.
When a domain name is due for renewal we will issue and invoice with at least 14 days notice. If the invoice is not paid prior to the due date, we cannot guarantee the continuance of the domain name.
29. EMAIL/SMS MARKETING
Bambrick Media will provide email and/or SMS services utilising an agreed service provider.
You will be responsible for the costs associated with engagement of the email and/or SMS service provider. You warrant that in accordance with the Privacy Act 1988 (Cth):
- you have consent from the recipients to receive email messages that will be sent or the message is directly related to the primary purpose for which the customers’ email accounts was recorded;
- the email will contain accurate information about the Client that authorised the sending of the message and how they may be contacted;
- you authorise a functional unsubscribe facility to allow the recipient to opt out from receiving future email messages. Any opt-out received must be honoured within five (5) business days.
You warrant that in accordance with the SPAM Act 2003 (Cth):
- you have consent from the recipients to receive SMS messages that will be sent and is therefore not an unsolicited commercial electronic message as defined by section 6 of the SPAM Act 2003 (Cth) (SPAM Act);
- the SMS will contain accurate information about the Client that authorised the sending of the message and how they may be contacted;
- you authorise a functional unsubscribe facility to allow the recipient to opt out from receiving future SMS messages. Any opt-out received must be honoured within five (5) business days.
Bambrick Media will endeavour to store or archive all electronic files used in the production of your Service.
However, Bambrick Media provide no guarantee that any stored or archived files can be retrieved in the future.
Once your Service is launched, archiving of the files and database and copies of these files becomes the responsibility of the Client. Bambrick Media can at the request of the Client provide this service for an Additional Cost.
Disbursement charges are not included in the Fees. If Bambrick Media incur any disbursements or expenses during the course of the Service, Bambrick Media will charge these to you as Additional Costs.
These may include but are not limited to:
- costs of plugins and themes purchased as part of the Service;
- consumable material utilised as part of a Service.
32. WARRANTY DISCLAIMER
Nothing in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition implied or imposed by legislation which cannot be lawfully excluded or limited. Such legislation includes the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances, each a non-excludable provision.
Subject to Bambrick Media’s obligations under the non-excludable provisions, and to the fullest extent permissible by law, Bambrick Media expressly disclaims all warranties and representations of any kind with respect to the Services whether express, implied, statutory, or arising out of the course of performance, course of dealing or usage of trade including any warranties or merchantability, fitness for a particular purpose, satisfactory quality, accuracy, title or non-infringement.
33. LIMITATION OF LIABILITY AND WARRANTY
To the fullest extent permissible by law, Bambrick Media is not liable (whether in contract or tort) for:
- faults or defects in any services or goods provided by third parties in connection with this agreement; or
- any indirect, special or consequential loss (including loss or corruption of data, loss of profits, revenue, goodwill, anticipated savings and business interruption) however arising, whether or not Bambrick Media knew of the possibility of such loss and whether or not such loss was foreseeable.
To the fullest extent permissible by law, in no event will Bambrick Media’s liability in contract, tort (including negligence and breach of statutory duty) or otherwise arising out of, or in connection with, this agreement exceed the amounts actually paid by the Client to Bambrick Media for the Service;
Bambrick Media makes no warranties regarding the likelihood of success of marketing or promotional activity undertaken pursuant to the agreement.
To the fullest extent permitted by law, the liability of Bambrick Media for a breach of a non-excludable condition is limited to: in the case of the provision of services:
- the supplying of the services again; or
- payment of the cost of having the services supplied again.
In relation to goods:
- the replacement of the goods or the supply of equivalent goods;
- the payment of the cost of replacing the goods or acquiring equivalent goods; or,
- the repair of the goods or the payment of the cost of having the goods repaired.
To the full extent permitted by law, Bambrick Media excludes all:
- liability for the infringement of the Intellectual Property rights of any third party arising from any of the material or content published during the performance of the Services;
- liability for misrepresentation or negligence arising from detrimental reliance on any of the material or content published in accordance with the performance of the Services. It is your responsibility to thoroughly check and gain independent expert advice on the suitability or correctness of the material to be published as part of the performance of the Services;
- liability in respect of loss of data, breach of our security, interruption of business or any consequential or incidental damages; all representations, warranties or terms (whether express or implied) other than those expressly set out in the agreement.
Bambrick Media’s total aggregate liability for all claims relating to the agreement is limited to the price for the Services payable under this agreement.
Either party’s liability for any claim relating to the agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.
You indemnify, defend and hold harmless Bambrick Media in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with any of the following:
- any breach of this agreement;
- your negligent acts or omissions; or
- your use of the Services, including any third party claims made in connection with or arising out of the Client’s use of the Service, other than use in accordance with this agreement;
- breach of third party Intellectual Property.
You indemnify, and agree to keep Bambrick Media, its directors, officers and employees, indemnified against all Loss arising from actions taken performing Services.
35. INTELLECTUAL PROPERTY AND SUPPLY OF RAW / EDITABLE FILES
All Intellectual Property Rights in Service Intellectual Property vest in, or will upon their creation vest in Bambrick Media.
- Bambrick Media grant you a non-transferable, non-exclusive license to:
- publish one copy of the Service and supporting Service Intellectual Property unless otherwise stated by Bambrick Media; and
- use and reproduce the other Service Intellectual Property;
You must not, without our prior written consent:
- adapt, create derivative works from or merge the template or other Service Intellectual Property;
- use the Service Intellectual Property for any purpose other than the specific purpose for which Bambrick Media have provided it;
- reverse engineer, disassemble or decompile the Service Intellectual Property;
- distribute, lend, resell, transfer, assign or sublicence the Service or other Service Intellectual Property, or allow any other person to use it except in the course of visiting the Service; and
- remove or attempt to remove any proprietary or copyright notices or any labels on the Service or other Service Intellectual Property.
The supply of raw / editable files is at the discretion of Bambrick Media. Additional Costs will apply, and may be based upon a percentage of the original Pricing Structure, or a retrieval and release fee.
Stock images and commercial fonts remain the property of Bambrick Media, under license or its licensors at all times and are governed under licensing restrictions and rules and are not transferable.
Bambrick Media do not warrant that your use of the designs, materials or content produced by us for you in the course of the Service will not infringe any third party’s Intellectual Property Rights or any person’s Moral Rights, but Bambrick Media will advise you if Bambrick Media become aware of any infringement.
You agree to carry the Bambrick Media logo or Bambrick Media text hyperlink in or under the website footer. You agree to allow Bambrick Media to use the Services provided for promotional and portfolio purposes.
As part of the Services, Bambrick Media may place your company logo and case study on its corporate website or promotional collateral for promotional purposes and you irrevocably authorise Bambrick Media to do so. You agree to provide feedback or a testimony upon request after the release/closure of the Service.
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 Pricing Structure. This obligation of confidence extends to Confidential Information obtained by a party before entering into this agreement.
The obligation of confidence above 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.
The Party required to disclose the other Party’s Confidential Information as set out above 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.
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.
37. CALCULATION OF FEES IF NOT SPECIFIED
If the Fees are not specified (in a Purchase Order, Pricing Structure or otherwise) at the commencement of the Service, then Bambrick Media will charge you at the Professional Hourly Rates for all work that Bambrick Media carry out for you in the course of the Service.
The Professional Hourly Rates may change from time to time.
Bambrick Media will perform the Services as specified in the Pricing Structure or as agreed in writing with the client, utilising the specified providers and/or platforms, for the specified term.
Refunds will not be issued for paused work or overpayment, a credit note may be issued at Bambrick Media’s discretion.
Travel time is not included in our quotations as Bambrick Media 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 additional fees may apply.
Bambrick Media reserves the right to charge Additional Costs caused by the Client’s instructions, lack of instructions, interruptions, mistakes, work for which Bambrick Media is not responsible and changes to the requirements, expectations or hardware and Software environment, and extra work required caused by faults or defects in any service provided by a third party.
38. PAYMENT METHOD
Payment for Services may be made by credit card (Visa, Mastercard, Amex) or direct debit from your nominated bank account.
In relation to our Services, Bambrick Media may issue invoices for:
- payment as indicated in our Pricing Structure or estimate;
- for Additional Costs on an ad hoc basis as agreed.
Unless Bambrick Media expressly state otherwise, the Fees and Additional Costs do not include GST.
If at any time Bambrick Media 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.
Bambrick Media 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.
40. DURATION OF AGREEMENT AND ITS TERMINATION
Upon execution by both parties, this agreement will take effect immediately and remain in effect until the purpose of the Service has been achieved.
Any term listed in the Agreement will automatically renew for subsequent periods of the same duration, unless either party gives the other party written notice terminating the agreement 30 days prior to the expiration of the term or both parties agree in writing to vary the Services provided.
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; or
- the other Party becomes Insolvent.
Bambrick Media 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,
- Bambrick Media consider that mutual confidence and trust no longer exist.
Upon termination of this agreement:
- our obligation to carry out the Service ceases;
- each party’s rights and obligations accrued prior to termination are not affected;
- the licences granted in this Agreement cease;
- any unpaid invoice owed to Bambrick Media must be paid, including for any minimum term; 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.
Any notice given under this agreement must be in writing, addressed to the other party’s contact persons as notified by the other party.
This agreement does not create a relationship of employment, agency or partnership between the parties.
Bambrick Media may subcontract our obligations under this agreement.
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.
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.
The additional terms and conditions referred to above and do 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.
Bambrick Media may change this agreement from time to time. The new terms will apply to any Service that commences after the date that Bambrick Media publish the changed terms and conditions. Your engagement of our Services after that date signifies your acceptance of the amended agreement.
This agreement is governed by the laws of Queensland and the Commonwealth of Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland and shall not:
- object to an action being brought in the Queensland Registry of a court of that State or Federal Court; or
- assert that any action has been brought in an inconvenient forum;
- and each party undertakes to refrain from:
- bringing an action in any other court or tribunal whether within Australia or otherwise; and
- seeking pursuant to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld) (as amended) or otherwise to transfer any action to another State or Territory; in relation to any dispute which arises directly or indirectly from this agreement.
This agreement is to be read subject to any legislation that prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions or obligations. If such legislation applies, to the extent possible, Bambrick Media limits its liability in respect of any claim to, at Bambrick Media’s option:
- the redelivery of the Services: or
- the payment of the cost of redelivery of the Services or acquiring equivalent services;
This agreement constitutes the entire agreement of the parties as to the subject matter and supersedes and cancels all prior arrangements, understandings and negotiations in connection with it. Any statement made in negotiations for this agreement which is not set out in this agreement does not form part of the agreement between the parties.
42. INTERPRETATION IN THIS AGREEMENT:
- a reference to “this agreement” means these terms and conditions (including any schedule) together with a Purchase Order or Pricing Structure (if any)
- headings and bold type are for convenience only and do not affect the interpretation of these terms;
- the singular includes the plural and the plural includes the singular;
- words of any gender include all genders;
- 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;
- 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;
- a reference to any legislation includes all delegated legislation made under it, and amendments, consolidations, replacements or re-enactments of any of them;
- a reference to a party to a document includes that party’s successors and permitted assignees;
- a promise on the part of 2 or more persons binds them jointly and severally;
- 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
- 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 Bambrick Media are permitted to charge you under this agreement.
Approval Item is defined above.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Bambrick Media, we, us or our means Bambrick Media Pty Ltd ABN: 86 112 089 102 of Level 4, 196 Wharf Street, Spring Hill, Queensland.
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 Bambrick Media do for you:
the person named as the Client in the Purchase Order;
if there is no Purchase Order, then the person named as the Client in the Pricing Structure; or
if there is no Pricing Structure, then the person for whom Bambrick Media are undertaking the Service.
Client Content is defined above.
Confidential Information of a party:
1. 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;
2. includes without limitation (unless excluded under paragraph 3 below) that party’s Intellectual Property Rights and these terms and conditions; but
3. 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 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).
Content Management System (CMS) A content management system (CMS) is a web-based Software application or set of related programs that are used to create and manage digital website content.
Fees means, in respect of a Service:
- the Fees payable to us for the Service as set out in a Pricing Structure or Invoice or
- if no Fees are specified, Fees for all work Bambrick Media do in the course of the Service calculated in as described above.
Finalisation means when the Service is handed over to you for your data entry and/or testing (not when the Service is launched).
GST means a goods and services tax or similar tax levied in Australia.
Insolvent in relation to a party, means that:
- the party has ceased or taken steps to cease to conduct its business in the normal manner;
- 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;
- the party is unable to pay its debts when they are due;
- 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;
- an application or order is made or a resolution is passed for the winding up of the party; or
- 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:
copyright, patents, trademarks, plant breeder’s rights, rights in circuit layouts, registered designs and any right to have confidential information kept confidential; and
any application or right to apply for registration of any of the rights referred to in (a).
- any liability, cost, expense, loss, personal injury (including illness), death or damage; and
- 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.
Pricing Structure means a proposal or fee estimate that Bambrick Media provide to you in respect of any work that you have asked us to do.
Project means, in relation to any work that we do for you:
- the Project described in a Purchase Order;
- if there is no Purchase Order, the project described in a pricing structure;
- if there is no pricing structure, then the project described in the Specifications; or
- if there are no Specifications, then the work that you have asked us to do.
Professional Hourly Rate means the rate Bambrick Media charges per hour for professional Services and is currently $160.00 + GST (subject to change).
Purchase Order means a document issued (in writing or electronically) by us to you that sets out:
the Services that Bambrick Media will provide to you;
the estimated times within which those Services will be provided; and
the Fees payable to us for those Services.
Schedule of Fees means the rates and packages attached to this document, and any replacement of that professional services schedule released from time to time.
Service means, in relation to any work that Bambrick Media do for you:
- the Service described in a Purchase Order;
- if there is no Purchase Order, the Service described in a Pricing Structure;
- if there is no Pricing Structure, then the Service described in the Specifications; or
- if there are no Specifications, then the work that you have asked us to do.
Service Intellectual Property means designs, artwork, Software and materials provided to you in the course of the Service, and any other Intellectual Property Rights created in the course of the Service, but does not include:
- the Content Management System (except to the extent that Bambrick Media have modified it);
- the Bambrick Media website Tools (except to the extent that Bambrick Media have modified them); or
Software means any computer code written or reused, excluding 3rd Party Software, as part of the delivery of the Services.
Services means the Services that Bambrick Media provide to you in the course of the Service, as described above.
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 Service.
Support & Maintenance Packages means the packages provided to supply paid maintenance and support services to assist in the management, maintenance, training for, and repair of a Bambrick Media supplied/built/maintained Project as described above.
Third Party Software means Software as described in clause 21.
Title Guarantee means a guarantee pursuant to any of sections 51, 52 or 53 of the Australian Consumer Law.
Variation means changes to the Pricing Structure, Specifications as described above and elsewhere in this agreement.
Variation Notice means the written notification regarding the costs associated with Variations as described above and elsewhere in this agreement.
Warranty is any fix required to a supplied Bambrick Media Service within 28 days of Finalisation. The determination of warranty labour is at Bambrick Media’s discretion.
Website Tools means the tools, applications or packages set out above.