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1(a) These terms and conditions cover- (i) the initial construction and uploading by i dezine of web pages, web forms, databases and/or websites, and/or; (ii) the subsequent maintenance by i dezine of those web pages, web forms, databases and/or websites, for the service period or periods covered by this Contract, and/or; (iii) the maintenance of web pages, web forms, databases and/or websites that have not been constructed by i dezine for the service period or periods covered by this Contract; and/or (iv) any reconstruction by i dezine of web pages, web forms, databases and/or websites; 1(b) These standard terms and conditions- (i) operate in conjunction with any special terms and conditions negotiated between i dezine and the Client in relation any of the purposes in Clause 1(a); (ii) in the event of any conflict between these standard terms and conditions and any other term or condition, these provisions take precedence, unless a contrary intention has been expressed in a written agreement between i dezine and the Client; 1(c) Unless a contrary intention is expressly indicated, in these standard terms and conditions- (i) "construction" means the original programming and design of web pages, web forms, databases and/or websites; (ii) "Contract" means i dezine's standard terms and conditions; (iii) "maintenance service" includes reconstruction of web pages, web forms, databases and/or websites, as well as any other action required of i dezine, as agreed in writing between i dezine and the Client in the Options; (iv) "reconstruction" means the re-programming and redesign of web pages, web forms, databases and/or websites, and includes any reference in this Contract to alterations to web pages, web forms, databases and/or websites; (v) "uploading" means the transfer of web pages, web forms, databases and/or websites from a computer to a web hosting service; (vi) "Options" includes quotations for work, any terms and conditions negotiated between i dezine and the Client in relation any of the purposes in Clause 1(a), and any special terms and conditions that modify the standard terms and conditions of this Contract; 1(d) The headings used in this Contract are indicative only and have no contractual effect. 1(e) For the period beginning on 29 July 2003 and ending on 30 September 2003, the word "i dezine" in this Contract is to be interpreted as if it read "i dezine and/or Lee Sinclair". 2: Initial Construction, Uploading, Reconstruction and Reproduction 2(a) The base rate for constructing, reconstructing and/or uploading web pages, web forms, databases and websites is $85.00 per hour; 2(b) In circumstances where the Client withdraws its consent to the final completion of partially constructed or reconstructed web pages, web forms, databases and/or web sites, the rate described in Clause 2(a) applies to any work completed by i dezine up to and including the time of withdrawal of consent; 2(c) The Client must provide the final text to i dezine prior to construction or reconstruction; 2(d) The final text must be submitted to i dezine via electronic or computer media only including, but not limited to floppy disks, CD-ROMs, or e-mail; 2(e) Any text area that needs to be retyped or reformatted by i dezine during construction will be billed at $85.00 per hour, in thirty (30) minute increments; 2(f) Where the construction or reconstruction of a web page, web form, database and/or website requires: -the obtaining of specialist software, plug-ins, computer hardware or other equipment; and/or -the hiring of specialist contractors; the costs, if any, of obtaining and/or hiring will be borne by the Client, provided that the Client has agreed in writing with i dezine to bear such costs; 2(g) Where Clause 2(f) applies, the Client will be liable for the costs, if any, described in that Clause in all circumstances including, but not limited to the following- (i) where the Client, having initially agreed to the construction or reconstruction of a web page, web form, database and/or website, subsequently decides to withdraw its consent to the construction or reconstruction of the web page, web form, database and/or website; (ii) where the Client decides to withdraw its consent to the uploading of a web page, web form, database and/or website after the construction or reconstruction of the web page, web form, database and/or website has been completed; (iii) sub-Clause 2(g)(i) applies irrespective of whether any construction or reconstruction has actually taken place if i dezine has incurred any of the costs described in Clause 2(f); 2(h) No parties other than i dezine or the Client have the right to request alterations to any web pages, web forms, databases and/or websites that are subject to this Contract; 2(i) If any party other than i dezine alone alters, or attempts to alter, a Client's web pages, web forms, databases and/or websites, any repairs will be assessed and made at $95.00 per hour; 2(j) The Client will bear all costs, agreed to in writing with i dezine, associated with- (i) reproducing web pages, web forms, databases and/or websites on portable computer media including, but not limited to, floppy disks and CD-ROMs; (ii) creating and producing any related printed materials including, but not limited to, brochures, manuals and posters; 2(k) Subject to written agreement between i dezine and the Client, the Client will bear all other costs associated with the construction, uploading, reconstruction, and/or reproduction of web pages, web forms, databases and/or websites. 3: Internet, web hosting, and domain name registration and other third party services 3(a) The Client will bear all costs associated with obtaining an Internet Service Provider, web hosting services, and/or domain name registration; 3(b) Where i dezine obtains an Internet Service Provider, web hosting services, and/or domain name registration on the Client's behalf, the Client must pay any applicable third party fees up front to i dezine. 4: Maintenance 4(a) The time periods of maintenance services are (i) for the initial maintenance service, six (6) months from the date as agreed between i dezine and the Client in the Options; (ii) for additional maintenance services, in three (3) month blocks only. 4(b) The cost and content of a maintenance service will be as agreed between i dezine and the Client in the Options; 4(c) The timing of any alterations covered by the terms of maintenance agreed to pursuant to Clause 4(b) to web pages, web forms, databases and/or websites will be as agreed between i dezine and the Client in the Options; 4(d) In relation to existing web pages, web forms, databases and/or websites, all and any additional alterations made during the life of a maintenance service period which are not covered by the terms of maintenance agreed to pursuant to Clause 4(b), including, but not limited to- any changes to text, navigation, artwork, designs, logos, photos, music, sound, custom coding or scripts, images, and graphics, are billed at $85.00 per hour, in thirty (30) minute increments; 4(e) All and any alterations to existing web pages, web forms, databases and/or websites are subject to Clauses 2(f), 2(g), 2(h) and 2(i); 4(f) The base cost for adding extra web pages to the Client's website during the life period of a maintenance service is $120.00 per page, with any extra costs being payable by the Client as per written agreement between i dezine and the Client; 4(g) The base cost for adding extra web forms to the Client's website during the life period of a maintenance service is $150.00 per page, with any extra costs being payable by the Client as per written agreement between i dezine and the Client. 5: Intellectual Property 5(a) The copyright in- (i) any text, artwork, logos, photos, music, sound, images, graphics, and any other material supplied by the Client to i dezine for the purposes of construction, reconstruction, uploading, or reproduction; (ii) the design of web pages, web forms, databases and/or websites that have been supplied by the Client for the purposes of uploading and maintenance by i dezine, but which were not originally constructed by i dezine; (iii) any text supplied by the Client that needs to be retyped or reformatted by i dezine; (iv) the content of any database, irrespective of whether or not it was constructed by i dezine, remains the property of the Client and/or appropriate third party, as the case may be; 5(b) Where i dezine constructs or partially constructs original web pages, web forms, databases and/or websites, the copyright in relation to the design of those web pages, web forms, databases and/or websites remains the property of i dezine; 5(c) Except where sub-Clause 5(a)(ii) applies, the stipulations in Clause 5(b) apply where i dezine constructs or partially constructs web pages, web forms, databases and/or websites in accordance with a design format, layout or specification supplied by the Client to i dezine; 5(d) Notwithstanding the existence of any third party interests in any of the following things, the copyright in any text, artwork, designs, logos, photos, music, sound, custom coding or scripts, images, graphics, and/or any other material supplied by i dezine for the purposes of construction and reconstruction of web pages, web forms, databases and/or websites, remains the property of i dezine and/or appropriate third party, as the case may be; 5(e) Where i dezine reconstructs or partially reconstructs web pages, web forms, databases and/or websites that- (i) were not originally constructed by i dezine, the copyright in relation to the design of those web pages, web forms, databases and/or websites remains the property of the Client and/or appropriate third party, as the case may be; (ii) were originally constructed by i dezine, the copyright in relation to the design of those web pages, web forms, databases and/or websites remains the property of i dezine; (iii) the stipulation in sub-Clause 5(e)(ii) applies where web pages, web forms, databases and/or websites were originally constructed by i dezine in accordance with a design format, layout or specification supplied by the Client. 5(f) It is a condition of this Contract that the Client or any related third party must not infringe i dezine's copyright interests at any time without written permission; 5(g) Where i dezine provides a maintenance service in relation to web pages, web forms, databases and/or websites that are covered by Clauses 5(b), 5(c) and 5(d) and/or sub-Clauses 5(e)(ii) and 5(e)(iii), i dezine warrants that the Client may use those web pages, web forms, databases and/or websites without prejudice to i dezine's copyright interests, provided that the Client abides by the Contract and refrains from infringing i dezine's copyright interests at any time without written permission; 5(h) Subject to the exclusions in Clause 5(i), in the event that an existing contractual agreement between i dezine and the Client is terminated, the Client may use web pages, web forms, databases and/or websites that are covered by Clauses 5(b), 5(c) and/or 5(d) and/or sub-Clauses 5(e)(ii) and 5(e)(iii) without prejudice to i dezine's copyright interests, provided that the Client or any related third party refrains from infringing i dezine's copyright interests at any time without written permission; 5(i) Clause 5(h) does not apply, that is, no licence will be granted to use i dezine's designs, where: (i) the Client or a related third party is infringing i dezine's copyright interests at the time of termination or has infringed i dezine's copyright interests prior to termination; (ii) the rights reserved to i dezine in Clause 8(g) have become exercisable because of the Client's non-payment of any account in accordance with this Contract; 5(j) All trademarks, service marks, logos and trade names remain the property of their respective owners; 5(k) All domain names remain subject to the licensing rules of the domain name registration services through which the names were registered; 5(l) It is a condition of this Contract that the supply by the Client, for any purpose or purposes covered by this Contract, of any text, artwork, designs, logos, photos, music, sound, custom coding or scripts, images, graphics, and/or any other material is lawful and does not infringe any statutory or general law rights; 5(m) It is a condition of this Contract that the Client indemnifies i dezine to the fullest extent legally permissible in relation to all and any costs and fines arising from legal proceedings involving third party intellectual property, trade practices or general law claims because of- (i) the Client's unlawful supply of materials of the types referred to in Clause 5(l), and/or i dezine's subsequent use of those materials for any purpose or purposes covered by this Contract; (ii) any other act or omission of the Client for which i dezine is or may be liable; (iii) this Clause extends to web pages, web forms, databases and/or websites that were not constructed or reconstructed by i dezine; 5(n) i dezine reserves absolutely the right to terminate any and all contractual relations with the Client where the Client infringes i dezine's copyright interests without authorization and subsequently to recover in arbitral proceedings and court proceedings as per Clauses 11(e), 11(f) and 11(g) or in court proceedings alone as per Clause 11(g) any outstanding accounts and seek all remedies including damages to which it may be entitled at law. 6: Content 6(a) It is a condition of this Contract that the content of any text, artwork, designs, logos, photos, music, images, graphics, and any other material supplied by the Client for any purpose or purposes covered by this Contract is lawful, and complies with- (i) the Broadcasting Services Amendment (Online Services) Act 1999, and relevant federal, State and Territory criminal and censorship provisions; (ii) the Trade Practices Act 1974, and relevant State and Territory consumer protection provisions; (iii) any other law, including the general law; 6(b) In relation to Clause 6(a), it is a condition of this Contract that the Client indemnifies i dezine to the fullest extent legally permissible in relation to all and any costs and fines arising from legal proceedings involving third party claims, because of- (i) the Client's unlawful supply of materials of the types referred to in Clause 6(a), and/or i dezine's subsequent use of those materials for any purpose or purposes covered by this Contract; (ii) any other act or omission of the Client for which i dezine is or may be liable; (iii) this Clause extends to web pages, web forms, databases and/or websites that were not constructed or reconstructed by i dezine. 7: Product attributes 7(a) The Client warrants that any goods, services, software, and/or other things supplied through its website or websites are legal, and, where relevant, comply with Australian product specifications; 7(b) Where a Client's website or websites are maintained by i dezine, it is a condition of this Contract that the Client indemnifies i dezine to the fullest extent legally permissible in relation to all and any costs and fines arising from legal proceedings involving all and any claims relating to the Client's supply of any goods, services, software or other things through its website or websites. 8: Billing and Payment 8(a) All prices quoted in this Contract are ex GST; 8(b) All applicable taxes are payable by the Client; 8(c) It is a condition of this contract that all payments must be made at the times and/or places agreed in writing between i dezine and the Client in the Options; 8(d) All maintenance services- (i) are payable on a quarterly basis in advance; or (ii) by arrangement, may be payable in advance on a half-yearly or yearly basis; 8(e) All invoices must be paid on or before seven (7) days of their issue date; 8(f) In relation to methods of payment- (i) all cheques and money orders must be made out to i dezine; (ii) other methods of payment may be negotiated; 8(g) In relation to overdue accounts, that is, accounts that have not been paid by their due date- (i) i dezine reserves the right to remove or make unattainable, without notice to the Client, any web pages, web forms, databases and/or websites that are covered by this Contract, or any part thereof, until full payment is received; (ii) where an account is not paid in full within thirty (30) days of the due date for payment, i dezine reserves, in addition to the right given in sub-Clause 8(g)(i), the right to terminate by written notice to the Client all and any existing contractual arrangements between i dezine and the Client, and subsequently, to recover the overdue account in arbitral proceedings and court proceedings as per Clauses 11(e), 11(f) and 11(g) or in court proceedings alone as per Clause 11(g) and to seek all remedies including damages to which i dezine may be entitled at law. 9: Warranties, exclusions, limitation of damages and indemnity 9(a) Except as otherwise provided for in the federal Trade Practices Act 1974 and/or other statutory trade practices regimes, i dezine's liability for any breach of warranties statutorily implied under relevant trade practices laws is limited to re-supplying any of the services covered by this Contract and the Options, or paying the cost of having another party re-supply the services covered by this Contract and the Options; 9(b) i dezine does not accept any liability whatsoever, including liability in negligence, for any loss or damage caused by or incidental to technical and network errors or failures, corruption of data, unauthorised access to and use of confidential information in the control of i dezine, or failures in the provision of services by i dezine which are, in i dezine's opinion, caused by circumstances beyond its control; 9(c) i dezine does not accept any liability whatsoever, including liability in negligence, for any loss or damage caused to the Client's computers, computer networks, software or data by viruses or other electronic hazards that may be transmitted through i dezine's website, electronic documents, software or computer media including but not limited to floppy disks or CD-ROMs; 9(d) i dezine does not accept any liability whatsoever, including liability in negligence, for any loss or damage caused by or incidental to any loss or damage suffered by the Client as a consequence of or incidental to any acts or omissions of or representations made by third parties including but not limited to · independent contractors who may perform services for or on behalf of i dezine; · persons who purport to be acting as agents of i dezine; · Internet Service Providers; · web hosting services; and/or · domain name registration services. 9(e) Except as otherwise provided for in the federal Trade Practices Act 1974 and/or other laws under which i dezine may be held liable, in any event where i dezine is found to be liable for any loss or damage suffered by the Client, i dezine's total liability, whether in negligence or otherwise, for that loss or damage will not exceed one hundred dollars ($100.00); 9(f) It is a condition of this Contract that the Client will indemnify i dezine from and against any liability, damage or loss that i dezine incurs or suffers as a result of any act or omission of or representation made by the Client. 10: Confidentiality 10(a) In relation to all and any confidential information of the Client's to which i dezine has access to or knowledge of, i dezine must not disclose or use such information without the Client's express written consent; 10(b) i dezine must use reasonable security measures to protect all and any confidential information that it holds or controls access to with the Client's permission. 11: Dispute resolution and governing law 11(a) The terms and conditions in this Contract and in the Options are governed exclusively by the law of the State of Queensland, Australia; 11(b) Except where otherwise provided for in this Contract, all disputes or differences arising out of or in connection with any contractual relationship between i dezine and the Client which incorporates this Contract must be resolved in accordance with the following provisions; 11(c) In relation to a dispute or difference within Clause 11(b)- (i) the parties must first attempt to resolve the dispute or difference by negotiation; (ii) the negotiation process commences when either party provides a written notice, either electronically or otherwise, detailing the dispute or difference and requiring its resolution by negotiation; 11(d) In the event that i dezine and the Client are unable to resolve a dispute or difference by negotiation within fourteen (14) days after the written notice required under sub-Clause 11(c)(iii)- (i) the parties must then refer the dispute or difference to conciliation by a Queensland Law Society Approved Conciliator appointed by the parties or failing agreement within seven (7) days, by the President of the Queensland Law Society in accordance with the alternative dispute resolution rules approved by the Queensland Law Society; (ii) the conciliation process commences when either party gives written notice to the other specifying the dispute or difference and requiring its resolution under this Clause; 11(e) If the dispute or difference is not resolved within twenty-one (21) days (unless such period is extended by the written agreement of the parties) of the commencement of the conciliation process referred to in Clause 11(d), either party may then but not earlier- (i) submit the dispute or difference to arbitration in accordance with the Institute of Arbitrators and Mediators Australia Rules for the Conduct of Commercial Arbitrations; (ii) for disputes in which the quantum is less than $50,000, arbitration shall take place using the submission of documents alone unless both parties agree otherwise; (iii) the arbitration must be conducted by a single arbitrator appointed by the parties or failing such appointment within seven (7) days, by the President of the Queensland Law Society; (iv) any arbitrator so appointed must not be the same person as any conciliator appointed under Clause 11(d); 11(f) All proceedings under Clauses 11(d) and 11(e) must be held at the offices of the Queensland Law Society, unless the parties otherwise agree; 11(g) If the dispute or difference is not resolved within thirty (30) days (unless such period is extended by the written agreement of the parties) of the commencement of arbitration under Clause 11(e), either party may then but not earlier commence proceedings in any court of competent jurisdiction exclusively within the State of Queensland, Australia; 11(h) Any information or documents obtained through or as part of the dispute resolution process outlined in Clauses 11(c)-11(f) inclusive must not be used for any purpose other than the settlement of the dispute or difference; 11(i) The dispute resolution process outlined in Clauses 11(c)-11(f) inclusive does not apply- (i) where either of the rights of termination granted in sub-Clause 8(g)(ii) and Clause 5(n) has become exercisable unless i dezine waives that right in writing and submits to the dispute resolution process in this Contract; (ii) where a dispute or difference relates to the use of a domain name, and the dispute or difference falls within the ambit of any mandatory dispute resolution procedure of the domain name registration service through which the name was registered; 11(j) Each party must continue to perform its contractual obligations, notwithstanding the existence of a dispute or difference and/or any proceedings under Clauses 11(d), 11(e), or 11(g). 12: Variation of terms, severance of terms and entire agreement 12(a) To the fullest extent permitted by law, i dezine reserves absolutely the right to vary the terms and conditions of this Contract from time to time; 12(b) Where i dezine exercise the right in Clause 12(a), any variations will take legal effect fourteen (14) days after written notice has been given to the Client; 12(c) The notice required in Clause 12(b) may be given electronically; 12(d) If any provision in this Contract is unlawful, void or for any reason is unenforceable, then that provision shall be deemed severable from this Contract and shall not affect the validity and enforceability of any of the remaining provisions in the Contract; 12(e) This Contract represents the entire agreement between i dezine and the Client relating to the subject matters herein, unless otherwise agreed in writing between i dezine and the Client. |
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