Terms and Conditions

Legal agreement

These Terms and Conditions (T&Cs) set out the standard terms and conditions of services offered by me. Before starting work for you, I will usually provide an Order Form, engagement letter or other document setting out the work I will be doing and the fees I will charge (Work Order). An accepted Work Order together with these T&Cs is a legally binding agreement.

If there is any conflict between these T&Cs and a Work Order, the terms in the Work Order will take precedence.

You may accept these T&Cs by signing a Work Order, confirming via email, or giving written or verbal instructions to begin work.

Term

Services can be provided on a fixed term, project or time and materials basis. This will be set out in your Work Order.

Services will commence once a Work Order has been accepted. The term will end as set out below or otherwise where terminated earlier under clause 18.

1. Fixed-term subscription:

   A monthly budget of hours will be set (which can be adjusted on one months’ notice) and services will continue until the end of the fixed term. The term can be extended by agreement in writing.

2. Project:

   Services will continue until the project is completed and handed over to you.

3. Time and Materials:

   Services will be provided on an ad-hoc basis, where I confirm I can provide services following a request by you. Services will end once all confirmed work is completed and handed over to you.

Customer obligations

You agree to work with me and promptly provide all the information, feedback and materials required for the services.

Services

I provide a range of services, including (but not limited to) graphic design (branding and identity, document design, web design, photography and video editing), web building (WordPress based or basic HTML), email and web services (email templates and signatures and email campaign design), training and support.

Where I am able to perform services requested by you, I will set out the scope or a description of the services in a Work Order and request that you confirm your acceptance. On acceptance, I will then perform the Services in accordance with that Work Order and these T&Cs.

Timeframes

You must advise me of any time-critical deadlines before the commencement of services or as soon as you become aware of such time requirements.

Unless specified as a ‘due date’ in a Work Order, any completion timeframes specified are estimates only. I will make reasonable endeavours to achieve completion timeframes as indicated. However, you are not entitled to withhold payment or take other action where timeframes are not achieved.

Final Products

Unless otherwise set out in a Work Order, where a quoted price has been given for services, one round of alterations is included in the price. Likewise, an estimate price range envisions only one round of alterations. Further rounds of alterations will be charged at the applicable hourly rate.

You are not entitled to withhold acceptance or payment for any services on the basis that unstated expectations have not been met or where you are not happy with the works produced, but the work product objectively meets the scope or description of services as set out in Work Order or otherwise as was clearly communicated in writing by you.

Variation to or additional services

You may request to change the services to be provided or request additional services to what is set out in the Work Order.

If you do so, I will provide you with an updated description of the services and cost estimate, which you can either accept or reject. If you reject the update, I will perform the services as agreed initially, unless otherwise negotiated.

Third-party services and materials

I may, from time-to-time, obtain third-party services and materials on your behalf. Unless otherwise agreed, I will pass on the costs incurred as charged to me.

Generally, I will incur these costs as agent for you (i.e. on your behalf and in your name). For ongoing services (i.e. hosting or MailChimp), I will usually set up an account in your name, with your contact details and payment information and once setup you will be responsible for maintaining and renewing the services and payment.

If there is any significantly costly or unusual third-party services or material required, I will seek your confirmation before incurring the cost.

Services not provided

As a general rule, unless specifically set out in writing a Work Order, I do not provide the services set out below:

1. Printing, signage and production;
2. Social media management;
3. Advertising bookings or accounts;
4. Software development or IT services beyond the scope of web building;
5. Ongoing website monitoring, maintenance and updates (although I can carry out maintenance and updates following a specific request by you);
6. Website performance and speed enhancements;
7. SEO/SEM services beyond basic set up of Google Search Console, Google Analytics and Yoast SEO;
8. Information security audits or testing; or
9. Hosting and email services.

As such, you may need to make your own arrangements, including with third party providers to carry out the above services. I can usually assist with recommending third party providers if required and may from time-to-time, on request by you, obtain third-party services on your behalf and in your name (as set out in clause 8).

Fees and invoicing

Unless otherwise specified, all work carried out by me in performing the services is chargeable under these T&Cs. This includes meetings, planning, scoping, design work, documentation (other than preparing a Work Order), training, support, travel, and preparation time.

Unless fees are expressly stated to be a quote, they are an estimate only, and you will be charged for hours actually worked. I endeavour to meet my estimates and to update my estimates if it appears it is likely that they will be exceeded substantially. You agree to pay all invoiced amounts, even where an estimate is exceeded.

Unless otherwise specified, I currently charge an hourly rate of $80. I review this rate from time-to-time and will publish any changed standard rates in these T&Cs.

Services are itemised and time spent is rounded up to the nearest minute.

Unless otherwise indicated, all fees and rates are exclusive of GST. If GST is applicable, you must pay GST on top of any fees payable.

I will issue invoices as scheduled in the Work Order, or otherwise approximately on a monthly basis. Unless otherwise agreed, all invoices are on 14-day terms.

All payments, deposits and progress payments are non-refundable.

If you are late paying an invoice, I may suspend further work until the invoice is paid and will be entitled to charge interest of 10% per annum. Where debt becomes protracted, I may refer the debt to a debt collector or initiate debt recovery proceedings.

All reasonable debt recovery costs and interest are payable by you in addition to any fees.

If you dispute any fees invoiced, you must notify me in writing before the due date.

Intellectual property

Intellectual property belonging to you, remains yours and all intellectual property belonging to me, remains mine. However, you agree to grant a licence for me to use any intellectual property required to perform the services for you.

Unless otherwise agreed in writing, I will retain all intellectual property rights in the work I produce (i.e. copyright in designs or website code).

Once work has been completed, handed over and paid for, I agree to grant a non-exclusive, perpetual, irrevocable and fee-free licence to use, copy, modify or sub-license the final product handed over to you.

Unless otherwise agreed, I reserve the right to add work created by me to my portfolio website.

The above licence does not include the working files, but I may release these on request for an additional fee.

Some work products may incorporate third-party intellectual property (usually only for web building products and stock media files). I endeavour to obtain such intellectual property with licence terms which allow you to use, copy and modify the product. Where third-party intellectual property is incorporated, on request, I will advise you of any licence terms and licence fees (for instance, you may require a developer’s licence if you wish to make modifications).

Confidential information and privacy

Except to the extent that such information becomes public knowledge or is required, by law, to be disclosed:

1. You will treat all information of a business or confidential nature supplied by me (including information comprised in any material or documentation) as confidential; and
2. I will treat all information of a business or confidential nature supplied by you, which is not subject matter in which I have Intellectual Property Rights, as confidential.

To the extent that the services require either party to provide the other with personal information (as defined in the Privacy Act 1989 (Cth)), each party will endeavour to comply with its obligations (as is applicable to them) under the Privacy Act 1989 (Cth), the Australian Privacy Principles or other equivalent laws that apply.

Before providing me with any personal information of a third party, you must obtain consent from the third party to enable me to use and access that information as required to perform the services.

The obligations contained in this clause survive the termination of this agreement.

Warranties

Subject to the exclusions in clause 15 below, I warrant that the final work product I produce will be of merchantable quality and fit for the purposes documented in the Work Order or otherwise clearly communicated by you in writing.

I limit my warranty obligations in the event of a breach of the above warranty to providing additional services, within a reasonable timeframe and at no cost to you, to remedy any faults or defects that are within my control.

To the full extent permitted by law, I otherwise exclude all representations, warranties or terms (whether express or implied) including any implied warranties of non-infringement, merchantability and fitness for purpose, unless expressly set out in this Agreement.

Any warranty claim must be notified to me in writing.

Statutory guarantees and obligations

To the extent you are a consumer acquiring services as defined by the Australian Consumer Law, the following statement is incorporated as a term of this Agreement:

Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

• to cancel your service contract with us; and
• to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

To the full extent possible, I limit my liability for a breach of any applicable Australian Consumer Law guarantee (other than for a major failure of goods or services) to:

1. providing a refund on the fees for the applicable goods or services to which the guarantee claim applies; or
2. rectifying the problems leading to the guarantee claim by repairing, replacing or supplying again any goods or services within a reasonable timeframe.

You must notify me in writing of any guarantee claim or defects or failures with goods or services provided under these terms and provide me with a reasonable time period to rectify any defects or failures.

Exclusions

To the full extent permitted by law, I exclude all liability in respect of loss of data, lost profits, interruption of business or any consequential or incidental damages, regardless of the form action (i.e. contract, tort, negligence, product liability or otherwise) for:

1. Services that I have specified that I do not provide at clause 9 (unless I have specifically agreed in writing to provide such services in a Work Order);
2. A security breach (including any automated or targeted attacks) to a website built by me – I am not a specialist information security firm, and I make no warranties about the security of my work. Where a security breach might cause you loss or damage, I recommend all work is audited by an information security professional;
3. Where you or a third party modifies or update the website or code, or installs third-party plugins or software;
4. Where issues arise due to an unexpected issue with obsolescent, uncommon or under-maintained browsers or devices;
5. Where you do not maintain the website to keep it current and up to date with any browser and device updates or additions, security patches and updates or other technologies, which keep the website functional and secure;
6. Where work has been handed over at an incomplete stage (i.e. where you terminate a project early and request the incomplete work);
7. Where an estimated timeframe is not met;
8. Arising out of events which are beyond my reasonable knowledge or controls, such as non-obvious or high risk use of the website without informing me;
9. To the extent you or a third party contributes to the liability.If you make a claim properly excluded under this clause, you agree to indemnify me for all reasonable losses or costs incurred in defending the excluded claim.

Limitation of liability

Unless otherwise specified in a Work Order, my aggregate and total liability for damages or alleged damages, whether in contract, tort or any other legal theory, is limited absolutely to the greater of the fees paid or payable to me under these T&Cs for the 12 months prior to when the claim arose or $200,000.

Dispute resolution

In the event of a dispute (however, this procedure does not apply to debt recovery for unpaid amounts under these T&Cs, unless you have notified me that you dispute the fees before the due date for payment) the parties must follow this procedure to attempt to resolve it, before taking any other legal action:

1. You must let me know in writing that you consider there is a dispute, I will do the same if I consider there is a dispute between us;
2. We must try to resolve the dispute by negotiation in good faith;
3. If after two weeks after notification of the dispute we are unable to resolve it, either party may apply to the Small Business Commission for assistance and/or external mediation and must attempt to resolve the dispute using those approaches in good faith;
4. If we are unable to resolve the dispute utilising the Small Business Commission, either party may take other legal action within an appropriate South Australian Court or Tribunal.

Termination

Either of us may terminate this agreement before the expiry of the term, by notice to the other party in writing, if one of the following events occurs:

1. a material breach of these T&Cs by the other party, which is not capable of remedy;
2. a material breach of these T&Cs by the other party, where the breach is capable of remedy and the other party fails to remedy the breach within one month’s written notice to remedy;
3. an insolvency event occurs in respect of the other party, other than an internal reconstruction with notice;
4. a force majeure event persisting on a party for 90 days or more; or
5. we mutually consent.Following termination, all fees and expenses incurred prior to termination are immediately billable to you.

Variation

Any variation to these T&Cs must be express and in writing, they may not be amended, modified, waived, discharged or terminated verbally or by implication.

Assignment

Neither party may assign its rights under a Work Order and these T&Cs without the agreement of the other.

Severance

If any provision of a Work Order and these T&Cs is invalid or not enforceable by its terms, other provisions which are self-sustaining and capable separate enforcement are to continue to be valid and enforceable by their terms.

Applicable law

The Work Order and these T&Cs are governed by South Australian law.