TERMS AND CONDITIONS

BETWEEN Rhythm Design & Marketing ABN 36 994 093 849 ('we' or 'us') and you.

Background

You wish to appoint us to provide you with services set out in the proposal or quote, and we agree to provide those services, in accordance with the terms and conditions set out below:

Terms & Conditions

1. Provision of Services

1.1 All services are provided subject to these terms and conditions, which when read together with any proposal or quote provided to you, set out the entire understanding and agreement between you and us.

1.2 If you sign the proposal or quote, instruct us to commence work or otherwise provide you with the services, that will be taken as your acceptance of this agreement and the terms of any related proposal for the minimum period set out in the proposal or the scope of work.

 

2. Fee and Costs

2.1 In consideration for us providing the services, you must pay all fees and charges as set out in each agreed proposal or quote plus any additional fees and costs that:

2.1.1are set out in the proposal

2.1.2 are confirmed by way of the initial invoice

• we have otherwise advised you of in writing
• relate to work that you require us to complete urgently
• result from your request for us to fix problems caused by you or other third party's additions or alterations to work created by us (including without limitation work on websites)
• relate to reasonable costs and third party expenses incurred where there is a change in the job brief, timing or order of the services
• relate to any changes that you require over and above the agree upon number of revisions outline in the proposal, to any deliverable presented to you
• relate to changes that you require after approval of a milestone or a deliverable
• relate to additional work carried out by us arising from but not limited to alterations to the original brief, as requested by you, and

2.1.10 Third party expenses including, but not limited to printing and distribution.

2.2 Where additional costs are incurred by you in relation to clauses 2.1 (d) to (i), the additional charges will be calculated on the basis of our then current standard hourly fee for the time we have spent in providing those additional services.

2.3 We may require you to pay a deposit prior to us commencing work.

2.4 Our payment terms are seven (7) days from the date of invoice, unless we advise otherwise. If any money payable by you is not paid when due, we may at our discretion charge interest on the amount outstanding from the due date at 10% per annum, calculated daily, plus any costs or expenses (including full legal costs and expenses) that we incur in relation to seeking payment from you.

2.5 We will not deliver artwork to you or upload files to a live site until we have received full payment of all fees for the relevant work. However, we may, at our discretion, waive this clause.

2.6 You must not make any deductions to any amounts due to us, regardless of whether or not such deduction is a claim to offset monies, counter claim or other deduction.

2.7 Unless otherwise expressly stated, all charges or other sums payable or consideration to be provided under this document are exclusive of GST.

 

3. Hosting and domain name renewal services

3.1 Subject to the clause below, if the services include ongoing services, such as but not limited to hosting, domain names and search engine optimization services, we will continue to provide these services after the initial term on a month to month basis. We will then provide you with an invoice for these ongoing services on a monthly basis and should you wish to terminate the services you must advise us in writing to that effect with not less than 30 days' notice so long as the effective date of termination coincides with the end of a billing cycle.

3.2 If we do not receive payment for such ongoing services at least 7 days before the expiry of the initial term or monthly period, we reserve the right to suspend or terminate the provision of the services without notice to you. In such case, your website may no longer be hosted, and you may lose your domain name and suffer the loss of your email service. You indemnify us in relation to any loss or damage suffered as a consequence of your non-payment or delay in payment.

3.3 We accept no responsibility for delays or down time, breakdowns or data loss caused by Internet service providers, or for corruption or problems caused by third parties making adjustments to your web pages, or taking over the hosting of your website and emails.

4. Timing and approvals

4.1 We will use reasonable commercial endeavors to deliver the services in accordance with any time stated in a proposal to the extent that it is within our control to do so, but unless otherwise agreed in writing, we do not guarantee any timing estimates provided in a proposal or otherwise and will not be in breach of our obligations if we fail to meet any such timelines.

4.2 Before sending work for final printing, we may request that you approve the work done. Such approval will be acceptance by you of the completion of the relevant services. If you require any further changes after such approval, we will levy additional charges for that work, at our then standard hourly rate.

4.3 Where the services are provided on the basis of milestones as set out in the proposal, we may at our discretion require you to approve each milestone upon completion. Where you have approved a milestone such approval will be considered by us as irrevocable acceptance by you of the completion of that milestone.

After acceptance, if you require any further work to be undertaken on a completed milestone or require any changes to be undertaken to work provided in accordance with that milestone, such work will be subject to additional fees and costs as set out in clause 2.1 and charged in accordance with this agreement.

4.4 You may need approvals of government or council for displaying work that we produce. This is your responsibility. For example, you may need approval from your local council and/or landlord in order to display advertising signage. It is your responsibility to find out what approvals you may need, and to provide us with advance notification of any requirements of these bodies that may impact on the services that we are providing to you.

5. Intellectual Property

5.1 All intellectual property rights in all creation files, working files, proposal, reports, specifications, artwork and other documents provided by us in connection with the services remains vested in us (and where relevant, our providers). You acknowledge that we are free to reproduce, use, disclose, display, exhibit, transmit, perform, create derivative works and distribute any item relating to the services unless specifically agreed. You will not in any way do, carry out or perform any act that compromises or infringes our intellectual property rights or those of any party from whom we license such rights.

5.2 You must not print, publish or distribute any draft files that we provide to you, unless we otherwise authorize in writing.

5.3 If the proposal provides for the intellectual property in the finished product of the services to pass to you, then such property shall so pass only upon completion of the project and the payment of all fees and costs owed to us by you. In such case we have a perpetual, irrevocable license to the use of that intellectual property unless agreed otherwise in writing. Such transfer of intellectual property rights does not include a transfer of any licenses (such as image licenses) that we are not able to assign.

5.4 Unless we have specifically assigned the intellectual property rights in the finished product to you, you may not reproduce, publish or distribute the finished product in any place or in any manner other than that which we produced the product for.

5.5 If during the course of providing the services we develop discover, or first reduce to practice a concept, product or process which is capable of being patented, then such concept, product or process will remain our property and you must not use or otherwise appropriate such property without first obtaining our written consent.

5.6 It is your responsibility to carry out any legal searches checking and registrations of work created in accordance with this document, including trade mark availability searches and registration, and all related costs are your responsibility. We accept no liability for undertaking searches, and you agree to indemnify and hold us harmless in respect of any claim against us for infringement of third-party trade mark rights.

6. Use of images

6.1 We may purchase rights to images that we use in providing the services to you.

6.2 If you require specific images, you may be required to pay a fee for that use. We will advise you of that fee if that is the case.

6.3 Unless you pay an exclusivity fee to us at the rate that we determine, the right to the use of the images that we provide to you is limited to the works that we provide for you, and you do not have the right to use these images on any other works, or with any other service providers.

6.4 Unless otherwise agreed in writing, we may at our discretion use images that have been used in providing the services to you, with other clients and on other works.

6.5 Even if we agree to provide an image to you exclusively, we cannot guarantee that the image will not be used by other third parties who may have obtained these images from another party.

6.6 Any images that are used in the services may be subject to a license agreement between us and a third party, that may restrict your use of those images.

Please ask us if you would like to be given a copy of the terms of any such license.

7. Suspension and Termination

7.1 We reserve the right to suspend services immediately at any time and without liability if you fail to perform your obligations under this document, including failing to make payments to us by a due date. Such service suspension may include us taking down your website until such time as payment of all outstanding amounts is received by us.

7.2 If you breach any term or condition of this document and fail to remedy such breach within 14 days of you receiving written notification from us indicating the breach and requiring its remedy then may at our discretion treat this document as terminated, in which case we will retain the intellectual property rights in the services even if we had previously agreed to assign it. Termination due to a breach of this document by you does not in any way prejudice any of our rights including our right to receive payment for services rendered.

7.3 We generally do not provide our clients with working files, and are under no obligation to do so.

8. Warranties and indemnities

8.1 We make no warranty or representation that the operation of and access to your website will be uninterrupted or error-free. You acknowledge and accept that we will not be liable to you for the consequences of any interruptions in accessing the website or your emails.

8.2 You understand and acknowledge that the availability of the websites and the provision of the services depends on a range of other service providers and technology and is subject to a range of possible interference including, without limitation, telecommunications interruptions and breakdowns, maintenance shutdowns, software malfunctions, computer hacking and computer viruses. The services are therefore provided on an "as is, as available" basis and we make no representations and give no warranties regarding availability.

8.3 To the extent permitted by law, all warranties, conditions and representations by us are excluded. If a term is implied by law into this document and the law prohibits provisions in a contract excluding or modifying liability under that term, then it will be included in this document. However, to the extent permitted by law, our liability for breach of such term will be limited, at our option, to one or more of the following:

8.3.1 the supply of the services again; or

8.3.2 the payment of the cost of having the services supplied again.

8.4 You acknowledge that you have not relied on any advice, representation or warranty given or made by us in connection with the services that is not expressly stated this document.

8.5 You are solely responsible for all content on your website and any content or material that we publish on your behalf. At all times you remain primarily responsible for compliance with all applicable professional and regulatory requirements.

8.6 To the extent permitted by law, neither we nor any of our officers, employees, agents or related bodies corporate will be responsible or liable in any way (including for negligence) for any loss, damage, liability or costs incurred suffered or sustained by you or claims made against you, and you agree not to make any claim against us, due to or arising out of our provision of the services.

8.7 We do not guarantee that our services will provide any specific results. In particular, and without limiting the foregoing, we make no guarantees, warranties or representations as to the search engine results that will be achieved, the Google ranking that will be achieved or that you will receive any new or increased numbers in customers or revenue as a result of our services.

8.8 In the provision of our services to you, we may from time to time refer you to certain third party service providers. You are free to use any service provider you wish to use and are under no obligation to engage the services of those referred to you by us. We will under no circumstances be responsible for the services that are provided to you by a third party service provider that you engage. We make no guarantees, warranties or representations in relation to any third party service provider we may refer to you.

8.9 Without limitation, we will under no circumstances be liable for any indirect or consequential losses, including loss of profits, loss of revenue and loss of business opportunity.

8.10 You indemnify and hold us harmless in respect of claim, loss or damage of any kind whatsoever (including legal costs and disbursements on a full indemnity basis), arising directly or indirectly out of:

8.10.1 any act or thing done by us in good faith and purportedly pursuant to a right granted to us under the provisions of this document

8.10.2 any infringement of third-party trade mark rights, and/or

• any breach by you of any of the terms of this document.

8.11You agree to indemnify and hold Rhythm Design & Marketing harmless against any and all claims, costs, and expenses, including attorney's fees, due to materials included in the Design at the request of the Client for which no copyright permission or privacy release was requested, or for which uses exceed the uses allowed pursuant to a permission or release.

 

9. Non-Solicitation

9.1 You must not during the term of this document, or for a period of 6 months following completion of any project that we undertake for you:

9.1.1 employ, contract or hire the services of any of our personnel, or

9.1.2 induce or attempt to induce any of our personnel to terminate their agreements or contracts with us.

10. General

10.1 All notices and consents required or permitted to be given under this document must be in writing and given by personal service, pre-paid postage, a facsimile transmission at the addresses of the parties set out in this document or to such other address as either party may designate to the other by written notice.

10.2 Neither this document nor any rights or obligations of this agreement may be assigned or otherwise transferred by either party without the prior written permission of the other.

10.3 If we do not act in relation to a breach by you of this document, this does not waive our right to act with respect to that or subsequent or similar breaches.

10.4 Nothing stated in this document constitutes you and us as partners, or creates the relationship of employer and employee, master and servant or principal and agent between the parties. Neither party shall have authority to make any statements, representations or commitments of any kind, or to take any action which shall be binding on the other party, except as expressly provided in this document or authorised in writing.

10.5 If any provision of this agreement should be held to be invalid in any way or unenforceable, the remaining provisions must not in any way be effected or impaired. This document must be construed so as to most nearly give effect to the intent of the parties as it was originally executed.

10.6 This document is governed by the laws of the State of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of that State.

11. Interpretation

11.1 Definitions

'personnel' means our employees, contractors, freelance agents, and any other personnel working for us.

'proposal' means the proposal for the provision of services to you as attached to this document, titled “Digital Marketing Proposal, Web Design Proposal or Quotation", or as otherwise provided by us to you.

'services' means those services set out in the proposal, or such other services as we may provide to you from time to time.

'you' means any person or entity to whom or on whose behalf we provide a service. Interpretation. In this document heading and bold type are for convenience only and do not affect the interpretation of this document.