Agreement Terms

For the provision of Services by Alex Pilotto (I/us/our/me).

These Engagement Terms (Terms) and my proposal documentation (Proposal) form the basis of my agreement with you (collectively the Agreement) and are our offer of Services to you.

1. Acceptance

You accept my offer if you:

  1. (a)  sign and return the Proposal; or

  2. (b)  continue to request (either orally or in writing) that we perform work for you after receiving the Proposal.

2. Proposal

(a) My Proposal may take different forms and may also be made up of separate parts, which are to be taken as joined and to form one single document.
(b) Where my Proposal species a ‘scoping’ component, we reserve the right to unilaterally vary our Proposal (acting reasonably) as a consequence of findings made during the scoping process.

(c) You must tell me immediately if you disagree with anything contained in my Proposal or if you think we have misunderstood your requirements.
(d) If there is any inconsistency between these Terms and the Proposal, the Proposal will prevail to the extent of that inconsistency.

3. Variations

(a) Either party may request variations to the Services at any time. If both parties agree to the variation in writing, then the Proposal will be deemed to be updated to react the change and will vary the Agreement.
(b) We may also reasonably update the Proposal where any of our Assumptions are proven to be incorrect.

4. Contract administrator

You must assign a contract administrator to manage your receipt of the Services and ongoing dealings with us. You agree that the contract administrator has your authority to make decisions regarding the Services and this Agreement on your behalf.

5. Services
5.1 Provision of Services

  1. (a)  We will provide our Services in:

  2. (b)  a professional manner with due care, skill and diligence; and

  3. (c)  in accordance with these Terms and as set out in the Proposal, including completing work

components in order of their ranked priority.

5.2 Your responsibilities

(a) To enable us to properly perform the Services in accordance with this Agreement, you must promptly provide us with all reasonable:

  1. (i)  information, assistance, data, resources, records, materials or access; and

  2. (ii)  access to Personnel within your organisation that we reasonably need to interact with.

(b) You acknowledge that the Proposal assumes that:

  1. (i)  the information you provide to us will be accurate, complete and not misleading; and

  2. (ii)  you will comply with your obligations under (a).

6. Acknowledgements

You acknowledge with regard to the delivery of our Services specified in the Proposal that:

(a) once our Services have been delivered, you are responsible for all backups of any website, Project Materials and Deliverables that we have delivered. We will not back-up or retain a copy of any website, Project Materials or Deliverables, unless specially agreed in writing;

(b) where our Services involve developing a website, we will provide the website code to meet the scope detailed in our Proposal. Unless otherwise specified in the Proposal or agreed in writing, you are responsible for the hosting required for the website, including the hardware, configuration, internet connectivity and aspect of the server;

(c) if our Services involve developing a website, we will design the website to work with the version of the content management system (CMS) and any plugins specified in the Proposal, or if no version is specified, the version current at the date of our engagement. We are not responsible for any updates or changes to enable the website to work with prior or later versions of the CMS or any plugins; and

(d) where our Services involve Search Engine Optimisation (SEO), we do not guarantee any particular search engine rankings or optimisation will result from a particular SEO strategy.

7. Maintenance Services

(a) Where our Services as specified in the Proposal incorporate Maintenance Services, you acknowledge that:

(i) we do not provide services for websites which were not provided to you by us;
(ii) where we install a third party back up plug in or organise scheduled back-ups to a third party server as part of the Maintenance Services, we are not responsible for and do not guarantee that the plug in and data storage services provided by third parties will operate without interruption or defect; and

(iii) we are not responsible for and do not guarantee the security of any Supported Website and it is your responsibility to implement and enforce suitable policies to govern the use and security of the Support Website.

(b) You acknowledge that although the Maintenance Services will increase the stability and security of a Supported Website, it is not possible to render any website completely secure.

(c) If at any stage during the term of this Agreement, a Supported Website is modied or rebuilt by a third party, notwithstanding the provisions of clause 16, we reserve the right to immediately terminate the provision of any Maintenance Services. To the extent our Services includes services other than Maintenance Services, such other services will not be affected by this provision.

8. Delay

(a) Our Delivery Plan is an estimate only and you agree that we are not liable for any delay in or change to it. We will take reasonable steps to mitigate and minimise delay on our part and the impact such delay may cause.

(b) If we become aware of any delay (or likely delay) in delivery, we will endeavor to promptly notify you of the details of the delay and provide you with a revised Delivery Plan.

(c) If you fail to adhere to any due dates or otherwise protract our delivery of the Services through your conduct, any additional costs incurred by us will be your responsibility.

9. Engagement of third parties

9.1 We may engage third parties
(a) We may in our sole discretion subcontract any part of our Services to a third party without further notice to you.

9.2 Our engagement of third parties
(a) We will use our best endeavours to ensure that third parties that we engage in the performance of the Services:

  1. (b)  are competent and professional;

  2. (c)  are bound by the intellectual property and confidentiality provisions of this Agreement or otherwise

to provisions equivalent in effect;
(d) have the qualifications and experience necessary to ensure full and proper performance of the duties allocated to them; and
(e) do not breach or cause us to breach any of our obligations under this Agreement.

10. Third party software

(a) As part of our Services we may recommend, install, implement, train and/or support third party software solutions (Software).
(b) You acknowledge and agree that:

(i) you have had an opportunity to obtain, read and understand the license terms and conditions relating to your use of any such Software (Software License);
(ii) you are solely responsible for:

(A) your compliance with any Software License; and

(B) all fees and costs relating to your access and use of the Software; and
we will not be responsible for any Loss that you suffer as a consequence of interruptions or

(iii)
malfunctions with the Software.

11. Intellectual property

11.1 Intellectual property rights Unless otherwise specified in the Proposal:

  1. (a)  each party retains all right, title and interest in and to its pre-existing IPR’s;

  2. (b)  we own all IPR’s in the Project Materials and the Deliverables;

  3. (c)  we are not under any obligation to provide you with the Project Materials;

  4. (d)  subject to paragraph (f), we grant you a non-exclusive, transferrable, sub licensable, royalty free

license to use and exploit the IPRs in the Deliverables and the Project Materials strictly for the purpose set out in the Proposal;

(e) nothing in these Terms prohibits us from using or licensing our IPR’s in the Project Materials or Deliverables to third parties; and

(f)

you agree that you must not:

(i) use the Project Materials or Deliverables in a manner inconsistent with our reasonable usage guidelines;
(ii) allow or engage any third party to conduct software development work on any of the Project Materials or the Deliverables without rest obtaining our written consent, which we may withhold in our sole discretion; and

(iii) subject to any right under, sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act, either directly or indirectly, modify, attempt to decompile, cross compile, disassemble, reverse engineer, or use any other means to discover the source code, object code or underlying structure, ideas, know- how or algorithms relevant to any software forming part of the Services that we provide to you.

11.2 Third party rights

You must ensure that we are permitted to use any third-party information or IPR’s that you provide to us for use in the provision of our Services.

12. Fees, charges and payments

12.1 Service Fees

As consideration for our delivery of the Services, you agree to pay us the Service Fees in the amount and manner as specified in our Proposal.

12.2 Initial deposit
We may require you to make payment of an initial deposit, in accordance with our Proposal, before we commence the provision of our Services. The initial deposit will be applied by us to Services rendered, following the issue of our invoices to you.

12.3 Expenses
You must pay any costs and reasonable out-of-pocket expenses incurred by us which are necessary to provide our Services (Expenses) as set out in our Proposal or otherwise notied to you in writing and approved.

12.4 Invoicing
We will invoice you for the Service Fees and Expenses in accordance with our Proposal or where unspecified, each calendar month that we provide Services.

12.5 Payment
(a) You must pay us all amounts outlined in our invoice in the manner reasonably nominated without set-off, counter-claim, holding or deduction.

(b) Subject to clause 10.6, if you fail to pay any of our fees in accordance with sub-clause (a), we may charge you:

  1. (i)  for all costs and expenses incurred by us in recovering our outstanding fees from you; and

  2. (ii)  compound interest at a rate of 10% per annum on the overdue amount which will begin

accruing on the rest day that payment is overdue.

12.6 Disputed fee
(a) If you dispute the whole or any portion of the amount claimed in an invoice, you must pay the portion of the invoice which is not in dispute (in accordance with sub-clause 10.5) and provide notice to us within 7 days of receipt of the invoice your reasons for dispute (Invoice Notice).

(b) Upon receipt of your Invoice Notice, we will within a reasonable time provide you with evidence substantiating the Service Fees and Expenses and addressing your reasons of dispute.

(c) If the dispute cannot be resolved within 7 days of our substantiation under sub-clause (b), the dispute must be referred to the dispute resolution procedure in clause 12.

12.7 GST
(a) Unless otherwise expressly stated in our Proposal or these Terms, all amounts payable to us under this Agreement are exclusive of GST.

(b) If GST is imposed on any supply made under or in accordance with this engagement and GST has not been accounted for in determining the consideration payable for the supply, then we may recover from you an amount on account of GST. That amount is equal to the value of the supply calculated in accordance with the A New Tax System (Goods and services Tax) Act 1999 (Cth) multiplied by the prevailing GST rate.

13. Condentiality, privacy and data security

13.1 Recipient must keep Congenital Information confidential

Each party must:

  1. (a)  keep confidential all confidential Information;

  2. (b)  only use confidential Information for the purpose of providing or receiving (as the case may be) the

Services; and

(c) procure that its Personnel comply with sub-clauses (a) and (b). 13.2 Disclosure exceptions
The obligations in sub-clause 11.1 do not apply:

  1. (a)  to the extent necessary to enable a party to make any disclosure required by law;

  2. (b)  to the extent necessary to enable a party to perform its obligations under this Agreement;

  3. (c)  where disclosure is required for any quality assurance or insurance purposes;

  4. (d)  to the extent necessary to receive professional (legal or financial) advice;

  5. (e)  to any disclosure agreed in writing between the parties; or

  6. (f)  in respect of any portion of the confidential Information which has entered the public domain other than as a result of a breach of this Agreement.

13.3 Use of client’s details
You agree that we may publish your branding on our website or other advertising medium representing you as our client for the purposes of advancing our own publicity, provided we comply with the confidentiality obligations contained in sub clauses 11.1 and 11.2.

13.4 Privacy
We will:
(a) comply with the Privacy Act 1988 (Cth) and any other applicable privacy laws; and

(b) not do any act, engage in any practice, or omit to do any act or engage in any practice that would cause you to breach any Australian privacy law.

13.5 Use of Client Material
You grant us a licence to use the Client Material for the purpose of us providing the Services under this Agreement, including the right to use, reproduce, modify and create derivative works of the Client Material for that purpose.

13.6 Data security requirements:
If we deal with any of the Client Material, we must:
(a) take reasonable steps to restore any Client Material that is lost, destroyed, corrupted or altered by us in connection with the provision of the Services;

(b) comply with any reasonable direction from you with respect to remedying or addressing any loss or unauthorised use or access to your Client Material; and

(c) inform and co-operate with you in the event of any risk regarding the security of your Client Material..

14. Disputes

(a) If a dispute (Dispute) arises between the parties to this Agreement which they cannot resolve, then the party claiming that a Dispute has arisen must deliver to the other parties a notice containing particulars of the Dispute (Dispute Notice).

(b) During the period of 10 business days after delivery of the Dispute Notice, or any longer period agreed in writing by the parties to the Dispute (Initial Period), the parties must meet in good faith in an attempt to resolve the Dispute.

(c) If the parties cannot resolve the Dispute within the Initial Period then unless they all agree otherwise, they must appoint a mediator to mediate the Dispute in accordance with the rules of the Resolution Institute. The parties must participate in the mediation in good faith.

(d) The mediator must be agreed on by the parties within 10 business days after the Dispute Notice is given to the parties and if they cannot agree within that time the mediator will be nominated by the president of the Resolution Institute.

(e) The mediation concludes when:

  1. (i)  all the parties agree in writing on a resolution of the Dispute; or

  2. (ii)  a party, not earlier than 20 business days after appointment of the mediator, has given 5

business days’ notice to the other parties and to the mediator, terminating the mediation, and that 5

(a)

We will not be liable to you for any Loss that is suffered as a result of:

  1. (i)  errors in the information that you provide to us;

  2. (ii)  the acts of a third party that are outside of our reasonable control, including without

limitation security breaches of any website or system that you have provided us with access to, by a third party; or

(iii) your interactions with any third party service providers or suppliers, even where we have recommended that third party service provider or supplier;

(iv) the loss of any data, information or material as are result of the actions or failings of any third party host that you have engaged, even where such engagement was at our recommendation;

(vii) faults, defects, or security vulnerability in the software, services or equipment of any third party.

business days has expired without all the parties agreeing in writing on a resolution of the issue.

15. Limitation of liability

(b)
your website, such services are provided on an ‘as is’ basis and, to the extent permissible by law, all warranties that may be implied by law or statute are excluded.

You acknowledge to the extent that we have provided any Maintenance Services in regard to

(c) Unless otherwise required by law, our liability for any Loss arising from any breach of this Agreement or any issue with the Services or Deliverables we have provided, in contract, tort or equity are limited to the amount that you have paid to us under this Agreement.

(d) We are not responsible for rectifying any malfunctions or issues with any Project Materials or Deliverables or a part of the Project Materials or Deliverables following our delivery of those Project Materials and Deliverables to you.

(e) To the maximum extent permitted by Law, we will not be liable for any Consequential Loss arising in connection with this Agreement even if we were appraised of the likelihood of such loss or damage occurring.

(f) Liability for breach of a guarantee conferred by the Australian Consumer Law (other than those conferred by ss 51 to 53 of the Australian Consumer Law) is limited (at our election) to us providing

the Services again or the cost of having the Services supplied again.

(g) We will not be liable for any part of our Services or Deliverables that are conditional upon Assumptions where further information or events result in those Assumptions being incorrect.

16. Indemnity

16.1 Your indemnity
You agree to indemnify us and keep us indemnied against any Loss that may be incurred by us arising from or in connection with:

  1. (a)  any breach or default by you of this Agreement;

  2. (b)  a negligent act or omission by you or by a party you are responsible for;

  3. (c)  your failure to comply with any law;

  4. (d)  any Claim made against us by any third party in connection with the information or documents

that you have provided to us; or

(e) the failure of a party you are responsible for in complying with any law or the stipulations of this Agreement.

16.2 Our indemnity
(a) Subject to sub clause (b), we will indemnify you with respect to any Loss suffered as a result of any Claim made against you by a third party where it is established that the Deliverables infringes the IPR’s of that third party.

(b)

We will not be liable to you under sub clause (a) if:

(i) the Claim is in respect of any logo or brand identity that we have developed as part of our Services. In this regard you acknowledge that whilst we endeavour to design a unique work, we make no guarantee that the design is able to be registered as a trade mark (whether within Australia or internationally) or that it does not infringe upon the rights of the owner of a registered trade mark;

(ii) you do not notify us of the other person's Claim within 10 Business Days after becoming aware of it;

(iii) our ability to defend the Claim has been prejudiced by your non-compliance with any of your obligations under this Agreement;

(v) you do not permit us to have control of the defence of the Claim and all related settlement negotiations.

16.3 Limitation
To the extent that any Claim or Loss occurs as a result of any negligent act or omission caused by us, or our failure to comply with material obligations of this Agreement, your liability under clause 14.1 will be proportionately reduced.

17. Termanation

17.1 Duration of Agreement

(a) This Agreement commences on the date of your acceptance under of this Agreement under clause 1 and continues until all Services and Deliverables specified in the Proposal are completed and all payments owed to us are received.

(b) For the avoidance of doubt, where we have specified in our Proposal a xed term engagement for the delivery of our Services, unless we otherwise agree in writing, if you wish to terminate your engagement with us prior to the expiry of the xed term, you will remain liable for the whole of the Service Fees owing for the xed term engagement.

17.2 Termination for breach
(a) If either party breaches any of these Terms and such a breach is capable of rectication, the other party must give the defaulting party written notice requesting that the breach be rectied within 5 business days (Breach Notice).

(b) If a breach has not been rectied within 5 business days of the giving of a Breach Notice, the party giving the Breach Notice may terminate this Agreement immediately by notice in writing to the other.

(c) If any party breaches a material term and the breach is not capable of rectication, the other party may terminate this engagement immediately by notice in writing to the party in breach.

17.3 Consequences of termination

(a)

Following termination you must:

(i) promptly pay all Expenses that have been incurred by us to date in accordance with clause 10.3 and all outstanding Service Fees in accordance with clause 10.5 that are not subject to dispute under clause 10.6; and

(ii) return or delete all of our Condential Information that has been provided to you during the provision of our Services.

(b)

Following termination we must:

(i) refund you the balance of any money that you have paid in advance, once we have set-off all of our outstanding Service Fees and Expenses; and

(ii) return or delete all of your Condential Information that has been provided during the provision of our Services, except for one copy where required for quality assurance or insurance purposes.

18. Notices

Any notice given under or in connection with this engagement:

  1. (a)  must be in legible writing and in English;

  2. (b)  must be addressed to a party’s contact address as shown on the Proposal or as otherwise

notied by a party to the other party from time to time;

(c)

(d)

must be:

  1. (i)  delivered to that party’s address;

  2. (ii)  sent by pre-paid mail to that party’s address; or

  3. (iii)  sent by email to that party’s email address; and

will be deemed to be received by the addressee:

  1. (i)  if delivered by hand, at the time of delivery;

  2. (ii)  if sent by post, on the third business day after the day on which it is posted, the rst business

day being the day of posting; or

(iii) if sent by email, at the time that would be the time of receipt under the Electronic Transactions Act 1999 (Cth).

19. Generalmatters

19.1 Interpretation
In interpreting this document:

(a) headings are for convenience only and will not affect interpretation of this Agreement;

(b) words in the singular include the plural and words in the plural include singular, according to the requirements of the context;

(c) a reference to legislation or other law includes delegated legislation and consolidations, amendments, re-enactments or replacements of any of them;

(d) a reference to any of the words "include", "includes" and "including" is read as if followed by the words "without limitation"; and

(e) terms used that are dened in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or the Corporations Act 2001 have the meaning given in that Act, unless the context otherwise requires.

19.2 Non-solicitation
During the Term of this Agreement and for a period of 12 months after its expiration, neither party will solicit, interfere with or endeavour to entice away any employees or customers of the other party or counsel, procure or assist any person to do those things.

19.3 Survival and essential terms
(a) Clauses 8, 10, 11, 12, 13, 14, 15.3, 17.2, 17.5 and 17.10 and are taken to survive this Agreement.

(b) Clauses 5, 10 and 11 are essential terms of this Agreement.

19.4 Amendments
Any amendments to these Terms must be made in writing or if agreed verbally between us, must be conrmed in writing within a reasonable time after such verbal agreement.

19.5 Assignment
(a) Subject to clause 17.4(b), a party cannot assign, novate or otherwise transfer any of its rights or obligations under these Terms without the prior written consent of the other party.

(b) You agree that if we merge or amalgamate with another entity or otherwise sell or dispose of our business, we may assign or novate this Agreement, including all materials, personal information, condential information and ideas supplied by you, to that other entity, provided that entity agrees to be bound by the stipulations in this Agreement or to stipulations equivalent in effect.

19.6 Further assurances
Each party must promptly do all further acts and execute and deliver all further documentation reasonably requested by the other party to give effect to the contemplations of this Agreement.

19.7 Consents

Unless these Terms expressly state otherwise, a party may in its absolute discretion, give conditionally or unconditionally or withhold, any consent under these Terms. To be effective any consent under these Terms must be in writing.

19.8 Force majeure
A party will not be liable for any failure or delay in the performance of its obligations under the Agreement to the extent that such failure or delay:

(a) (b)

19.9
The non-exercise of or delay in exercising a right of a party will not operate as a waiver of that right, nor does a single exercise of a right preclude another exercise of it or the exercise of other rights. A right may only be waived by written notice signed by the party to be bound by the waiver.

19.10 Jurisdiction
This engagement is governed by the law in force in the State of Queensland and each of us submit to the non-exclusive jurisdiction of the courts of Queensland.

19.11 Severability
Any provision of these Terms that is illegal, void or unenforceable will be severed without prejudice to the balance of the conditions which will remain in force.

20. Personal responsibility

(a) In consideration of our provision of Services, each person who accepts this Agreement acknowledges and agrees:

(b) that they are jointly and severally liable for the payment of our fees along with all other Expenses relating to our performing of the Services as if they were the engaging party named in our Proposal and referred to in these Terms; and

(c) to indemnify us for any loss we suffer because the party engaging us does not pay our fees for any reason.

21. Acknowledgement

You acknowledge that:

  1. (a)  you have read, understood and have agreed to be bound by these Terms and the Agreement;

  2. (b)  you have received and will retain your own copies of these Terms and our Proposal; and

is caused by a circumstance not within the reasonable control of the party; and could not have been reasonably avoided, prevented or circumvented by the party.

Waiver

(c) you have been informed by us that you should seek independent advice in relation to these Terms prior to accepting offer of Services.

22. Denitions

In these Terms the following denitions apply:

Assumptions means:
(a) any qualifications or suppositions detailed relating to the Services or Deliverables set out in the Proposal; and

(b) the expectations we have relied upon as set out in clause 5.2(b).

Client Material means all data, information and material you own or receive under license which you provide or make available to us in connection with the provision of our Services.

Condential Information means information that is by its nature condential and:

  1. (a)  is designated by a party as condential;

  2. (b)  is described in the Proposal as condential; or

  3. (c)  a party knows or ought to know is condential,

but does not include information that:

(d) is or becomes generally available in the public domain, other than through any breach of condence;

  1. (e)  is rightfully received from a third person other than as a result of a breach of condence; or

  2. (f)  (d) has been independently developed by a party without using any Condential Information of

the other.

Consequential Loss means indirect economic loss, loss of income or prot, loss or damages resulting from wasted management time, damage to goodwill or business reputation, loss of contract, loss of data, liability under other agreements or to third parties, loss of opportunity or any other special, indirect, remote or punitive loss or damage.

Copyright Act means the Copyright Act 1968 (Cth).

Claim includes, in relation to a person, a demand, claim, action, dispute or proceeding made or brought by or against the person, however arising and whether present, unascertained, immediate, future or contingent.

Deliverable means Project Materials created or provided by us in the course of, or as a consequence of, providing the Services and includes each item that is identied as a deliverable in the Proposal.

Delivery Plan means the timetable for the delivery of the Services outlined in the Proposal.

IPR’s means all intellectual property rights of whatever nature including all rights conferred under statute, common law or equity, including all copyrights, patent rights, trade mark rights (including any goodwill associated with those trade mark rights), design rights and trade secrets together with any documentation relating to those rights but does not include moral rights.

Loss includes any damage, loss, cost, liability or expense of any kind and however arising (including as a result of any Claim) including penalties, nes and interest whether prospective or contingent and any amounts that for the time being are not ascertained or ascertainable.

Maintenance Services means those Services Specied in the Proposal that we will deliver in respect of a Supported Website.

Personnel means employees, agents and contractors.

Project Materials means any methodologies, tools, ideas, processes, documents (including working proofs), diagrams, graphics, plans, instructions, drawings, reports, software code, know-how, training materials and instructions created or adapted by us during the course of providing the Services.

Proposal means the document we have provided to you specifying in detail the Services, Deliverables, Delivery Plan and Service Fees.

Services mean all services we are proposing to provide as set out in our Proposal. Service Fees means our fees for the provision of our Services.

Supported Website means the any website elected by you in the Proposal in respect of which we will provide Maintenance Services.