STANDARD TERMS AND CONDITIONS
1. DEFINITIONS & INTERPRETATIONS
1.1 Terms defined in the Proposal have the meaning given them in the Proposal, and in this Agreement the following definitions apply: "ACL" means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended; "Agreed Expenses" means the expenses agreed to be borne by the Client as set out in the Proposal; "Agreement" means any agreement for the provision of Services by MGR to the Client or where MGR is engaged on a retainer basis, this agreement for the provision of Services by MGR to the Client; "Confidential Information" means any confidential, commercially sensitive or valuable information belonging to a party in written, oral or computerised form and whether or not marked ‘confidential’ concerning its business, its clients or the Services, and includes without limitation, all financial and business information, client lists, advertising and promotional plans, trade secrets and technical information; "consumer" is as defined in the ACL and in determining if the Client is a consumer, the determination is made if Client is a consumer under the Agreement; "Marketing Material" means any copyright work or other materials or marketing collateral produced by MGR in the provision of the Services; "GST" means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and its associated Regulations as amended; "Intellectual Property Rights" means all copyright, trade mark rights, design rights, patent rights and rights to keep confidential information confidential; "Client's Material" means any works, such as text or photographs, provided to MGR by the Client to be used in providing the Services; "Proposal" means the marketing proposal document prepared by MGR for the provision of Services; "Services" means services supplied by MGR to the Client as described in the Proposal and any other services agreed by the parties to be provided by MGR to the Client; and "Terms" means these Standard Terms and Conditions.
2. BASIS OF AGREEMENT
2.1 Unless otherwise agreed by MGR in writing, the Terms apply exclusively to every Agreement and cannot be varied or replaced by any other terms.
2.2 Any Proposal is:
(a) valid for 30 days, and
(b) an invitation to treat only.
2.3 The Proposal forms part of these Terms and, to the extent that the Proposal is inconsistent with these Terms, the Proposal will prevail.
2.4 The Terms are accepted by the Client: (a) when the Client executes the Proposal; (b) when the Client requests MGR to commence any aspect of the Services; or (c)30 days after the Proposal was provided to the Client, provided the Client has not indicated otherwise.
2.5 Once the Terms are accepted:
(a) it is deemed that the Services described in the Proposal are an accurate reflection of the Client's requirements. If the Services described are later found to be incomplete or inaccurate and further work will be required, MGR may increase the Fees to account for this change.
(b) If the Client requests any changes or additions to the Services, MGR may: (i) reject the request for the variation; (ii) increase the Fees to account for the variation; or (iii) provide a revised Proposal.
3. ENGAGEMENT ON RETAINER BASIS
3.1 This clause 3 will only apply if MGR is engaged on a retainer basis as set out in the Proposal.
3.2 The Agreement commences on the Commencement Date and continues for the Term unless terminated earlier in accordance with clause 10.
3.3 The Agreement will automatically be renewed for subsequent 6 month terms (“Further Term”) unless either party provides written notice at least 60 days prior to the anniversary of the Term or any Further Term.
3.4 Where MGR is engaged on a retainer basis, on each 6 month anniversary of the Commencement Date, the Fees will be reviewed by MGR. Before any increase in the Fees is effective, MGR must provide the Client at least 7 days’ notice in writing.
3.5 If MGR is engaged exclusively as indicated in the Proposal, then during the Term: (a) the Client must not engage any other person or organisation to provide the Services or any services which are similar to the Services; (b) MGR must not enter into any contract with any other person or organisation, that is in direct competition with the Client, and as nominated by them, to provide the Services or any services which are similar to the Services (unless otherwise discussed and agreed – i.e.: by exception); and (c) subject to (b) above, MGR retains the right to enter into any contract with any other person, or organisation to perform the Services or Services similar.
4. PAYMENT & PRICING
4.1 MGR must obtain the Client's consent prior to incurring any expenses, other than the Agreed Expenses.
4.2 The Client must pay to MGR the Fees and any Agreed Expenses within 14 days from the invoice date, in advance of work to commence the following month. Or in the instance of a weekly retainer, this must be paid by the Friday of each week.
4.3 If the Client defaults in payment by the due date of any amount payable to MGR, then all money which would become payable by the Client to MGR at a later date on any account, becomes immediately due and payable without the requirement of notice to the Client, and MGR may, without prejudice to any of its other accrued or contingent rights:
(a) charge the Client for, and the Client must indemnify MGR from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement; (b) cease or suspend supply of any further services to the Client; (c) by written notice to the Client, terminate any Agreement with the Client. 4.4 Clauses 4.3(b) and 4.3(c) may also be relied upon, at MGR’s option:
(a) where the Client is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
(b) where the Client is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Client.
5.OBLIGATIONS OF THE CLIENT
5.1 The client must provide MGR with all information and assistance reasonably required to perform the Services in a timely manner. MGR may refuse to provide the Services until all such information and assistance has been provided by the Client.
5.2 The client indemnifies MGR against all costs, claims, damage, fines, expenses and loss suffered by MGR as a result of the Client's failure to provide correct, accurate and complete information.
6. COMPLETION OF SERVICES
6.1 Any period or date for completion of the Services stated by MGR is an estimate only and not a contractual commitment. MGR will use its reasonable endeavours to meet any estimated dates for completion of the Services. If MGR cannot complete the Services by any estimated date, it will complete the Services within a reasonable time.
7. CLIENT'S MATERIAL
7.1 The Client's Material must:
(a) be provided in the format specified by MGR;
(b)not be indecent, libellous, defamatory, illegal or otherwise prejudicial to the reputation of any third party; and
(c) comply with all laws and codes of conduct, including, without limitation, the Copyright Act 1968, Competition and Consumer Act 2010 and its state and territory equivalent, all regulations and advertising codes of practice.
7.2 The Client warrants that it owns or is licensed to use the Client's Material that is the subject of any Intellectual Property Rights.
7.3 The Client licenses MGR to use the Client's Material for the purpose of providing the Services.
7.4 The Client indemnifies and agrees to keep MGR indemnified against all liability, losses or expenses incurred by MGR in relation to, or in any way directly or indirectly connected with, any breach of any Intellectual Property Rights in relation or relating to the Client's Material.
7.5 The Client indemnifies and agrees to keep MGR indemnified against all liability, losses or expenses incurred by MGR in relation to, or in any way directly or indirectly connected with, any breach of confidentiality, including but not limited to, the use of human talent, people within the organisation, community members, locations or anything produced in relation to videography or photography. It is the responsibility of the Client to ensure all talent is willing to be seen or featured on produced materials.
8.1 If Marketing Material is created by MGR, then:
(a) MGR will provide the Client with a draft for the Client's prior approval ("Draft"). The Client must either approve the Draft or provide MGR with reasons whythe Draft is not approved within 7 days of receipt of the Draft; and
(b) only if the Services specifically include legal compliance, MGR will ensure that the Marketing Material complies with the statutory requirements and regulations specified in the Services.
8.2 MGR does not accept responsibility for any errors contained in any Marketing Material, except where the Client is a consumer and MGR has not used due care and skill.
8.3 Ownership of any Intellectual Property Rights in the Marketing Material (other than Client's Materials) will remain vested in MGR to be mutually agreed between MGR and the Client provided however, any pre-existing ownership remains with the relevant party.
8.4 Subject to the Terms, MGR hereby grants to the Client a non-exclusive limited licence to use the Marketing Material ("Licence").
8.5 The Licence is limited to the use by the Client as specified in the Services, if any.
8.6 MGR reserves the right to use all and any Marketing Material produce with or for the Client for promotional, marketing, or advertising as required across any channel deemed appropriate by MGR.
9. WARRANTIES AND LIABILITIES
9.1 The Client indemnifies MGR for any claims, demands, causes of action, losses and damages (including potential losses), liabilities, costs (including legal costs on an indemnity basis) that may be suffered or incurred by MGR as a result of any breach of a term of this Agreement.
9.2 The Client acknowledges that MGR has no control over material placed on an external website.
9.3 MGR does not warrant:
(a) the uptime or performance of any websites or host in which material is placed;
(b) the number of impressions, hits, clicks on material; and
(c) the success of any material or marketing plan.
9.4 Except as the Terms specifically state, this Agreement does not include by implication any other term, condition or warranty in respect of the quality, fitness for purpose, merchantability, acceptability, description or performance of the Services, or any contractual remedy for their failure.
9.5 If the Client is a consumer, nothing in these Terms restricts, limits or modifies the Client's rights or remedies against MGR for failure of a statutory guarantee
under the ACL.
9.6 Except to the extent of any liability imposed by the ACL, MGR is not liable:
(a) to the Client in any way arising under or in connection with the provision of the Services;
(b) for any indirect or consequential losses or expenses suffered by the Client or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party.
9.7 Nothing in the Terms is to be interpreted as excluding, restricting or modifying the application of any State or Federal legislation applicable to the supply of Services which cannot be excluded, restricted or modified.
10.1 This Agreement may be terminated at any time by mutual agreement of the parties or by one party giving the other party 60 days written notice.
10.2 A party ("Non-Defaulting Party") may immediately terminate this Agreement by written notice to the other party ("Defaulting Party") if the Defaulting Party:
(a) commits a breach of this Agreement and fails to remedy such breach within 30 days of written notice from the Non-Defaulting Party requiring such breach to be remedied; or
(b) acts in a way that is likely to substantially prejudice the reputation or goodwill of the Non-Defaulting Party.
10.3 If the Agreement is terminated by either party in accordance with
10.2, the Licence or right to work under this agreement will immediately terminate and any Marketing Material must be returned to either party on demand.
11. FORCE MAJEURE
11.1 MGR is not liable in any way howsoever arising under the Agreement to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism or war. If an event of force majeure occurs, MGR may suspend or terminate the Agreement by written notice to the Client.
12.1 Neither party may use, exploit or divulge to any other person the other party's Confidential Information other than with its prior written approval or as strictly necessary to undertake its obligations under this Agreement.
13.1 Nothing in this Agreement is to imply or constitute a partnership, joint venture or employment relationship between the parties.
13.2 Neither party has the right or authority to assume, create or incur any commitment, liability or obligation of any kind against, or in the name of, or on behalf of, any other party except as expressly provided in these Terms.
13.3 The law of NSW from time to time governs the Terms. The parties agree to the non-exclusive jurisdiction of the courts of NSW, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
13.4 MGR’s failure to enforce any of these Terms shall not be construed as a waiver of any of MGR’s rights.
13.5 If a clause is unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be severed from the Terms, without affecting the enforceability of the remaining terms.
13.6 A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre- paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.
14. WEBSITE DEVELOPMENT TERMS AND CONDITIONS
14.1 Management System: Our websites (unless agreed upon otherwise, or correspondence surrounding another CMS platform is nominated) are built using the award-winning Joomla! Content Management System or WordPress CMS. Many aspects, including its ease-of-use and extensibility, have made Joomla and WordPress the most popular Web site software available. Best of all, Joomla and WordPress are an open source solution that is freely available to everyone. Having a Content Management System helps you to update and manage your content with ease. For more information about Joomla, please visit
www.joomla.org or wordpress.org
14.2 Additional Components: websites will likely use an addition of plugins and add-ons. These plugins and add-ons will only be warranted by Menace for a period of 3 months or will be maintained directly by the hosting company. Any site not being hosted by our preferred hosting company, will not be eligible for site support without charge.
14.3 Service: We have a strong commitment to fast and personal service relating to your product. If you are in any way unhappy with service you have received, we welcome your feedback. Likewise, if you feel that you have received quality service, we are always appreciative if you tell us.
14.4 Scope of Project: The understood scope of a project will be itemized and displayed in a quote. Quotes must be accepted by signing and returning the terms and conditions before service can commence. Once a quote has been accepted, development and design will then proceed based on the understood conditions. As a project undergoes development, it is understood that the scope may change and additional unforeseen costs may become apparent. Thus, up to 10% of the total quote’s cost can be charged without a new quote. However, amended quotes can be provided for any changes upon written request.
14.5 Design Revisions/Changes to Scope: Quotes include up to 2 revisions of the initial design provided. These revisions must be requested by email. Any changes to the scope of the website (i.e. Changes in functionality outside the quoted agreement) will incur additional costs. Where changes to the scope are substantial (outside 10% of quoted amount), an amended quote will be issued.
14.6 Website Hosting: We provide quality website hosting through our provider – DSHOTS or Web24. If you choose to use your own hosting, additional charges may apply due to server conflicts with Joomla and/ or WordPress causing subsequent configuration difficulties. Our hosting with Web24 and DSHOST includes
frequent backups and monitoring.
14.7 Warranty & Support: We will supply support for any major technical glitches / bugs for 3 months after the website is launched. Support for use of the website outside of the quoted agreement can be provided for the current hourly rate. Security measures are taken on every site to ensure it is up to date and has a third-party firewall extension installed. However, if security is compromised (outside of the 3-month period) on a website and a backup needs to be reverted to, this will happen at the client’s expense.
14.8 Charges & Payment: The charges and payment plan are detailed in the quote. Charges for services must be paid by the due date provided on an invoice. If an invoice is unpaid past the due date and no prior agreements have been made, services related to that invoice may be withheld until payment is received. Upon commencement of the project, one third of the project cost must be paid up front with the full amount for the project being received no later than 3 months after commencement of the website (commencement of website begins on the date when the first invoice is sent) unless otherwise stated in this agreement.
14.9 Urgent Updates & Changes: Updates will usually be completed within 3 working days of when they are requested. In the case that the updates are substantial, we will advise how long the update will take. In the event that urgent updates are required (i.e. requiring less than a 48-hour turnaround), and they are not a result of an error or glitch that we have caused, the work can be charged at up to double our hourly rate.
14.10 Refunds: No refunds will be given if a client changes their mind about continuing with our services. We reserve the right to retain the one-half upfront payment and any subsequent payments that have been made on the website.
14.11 Advertising and Portfolio: We reserve the right to use snapshots of design pages and quotes in advertising on our website to promote our services and capabilities. We also reserve the right to place a back link on the footer of your website (i.e. Website created by Menace Group) unless a release fee of 10% of the development cost is paid. It should be noted that these links on our website to your website has positive effects for Search Engine Optimization.
14.12 Content: You are responsible to make sure that the content that you put up on your website does not breach any else’s copyright.
14.13 Limit on Liability: We will do everything within our expertise to avoid any disruption to services that we provide. However, we exclude all statutory liability, tortuous liability (including but not limited to liability in negligence), conditions and warranties implied by custom, the general law or statute, liability for all direct, economic, consequential or indirect losses, expenses, damages and costs incurred by you, arising out of or relating to our services, any failure to supply or delay in supplying our services or out of or relating to this agreement. Additionally, we are not responsible or liable for any indirect consequential or economic damages, including, without limitation, loss of income or profit or loss of actual potential business opportunities.
15. SEO TERMS AND CONDITIONS
15.1 While we will try to improve the position of your Web Site in Search Engine results in response to a search request, we do not warrant that this effort is in any way guaranteed. You acknowledge that our SEO services are focused primarily on achieving improvements in the position of your Web Site when undertaking certain key word searches using the Google Search Engine.
15.2 You acknowledge that, unless the Agreement provides for exclusive dealing, Menace Group may at its discretion offer SEO services to businesses in competition with you and/or businesses in the same or a similar industry as you.
15.3 We do not guarantee, warrant or represent that a higher ranking of your Web Site in Search Engine results will result in increased traffic to your Web Site and/or increased sales.
15.4 We use paid and free methods in an attempt to raise the ranking of your Web Site in Search Engine results. We disclose, and you acknowledge, that without notice Search Engines, in particular Google, can devalue a particular method which may lead to a lower ranking of your Web Site in Search Engine results. We cannot be held responsible for a lower ranking of your Web Site in Search Engine results.