- Any products, services, or work (work) provided by Harpy Tech Web Agency to our clients (you) are subject to these terms and conditions. Except where expressly stated in these terms and conditions, no terms and conditions contained in or deemed to be incorporated by any document of yours will apply to, override or amend in any way these terms and conditions.
- These terms and conditions, and the applicable proposal for our work for you (Proposal), together form the entire agreement between you and us (agreement).
- If there is any inconsistency between these terms and conditions and the Proposal, the Proposal will prevail to the extent of the inconsistency.
Your acceptance of the Proposal will constitute your acceptance of the agreement. Acceptance may be by written or verbal acceptance, acceptance by conduct (including payment), or providing written or verbal instructions to us to proceed with the work. You warrant that the persons accepting the Proposal and/or providing instructions to us to perform the work are duly authorised by you to do so.
3. Performance of the work
- We agree to perform the work for you as set out in our Proposal in accordance with this agreement.
- We will comply with applicable laws and industry standards and will perform the work with due skill, care, and diligence.
- We will use our best endeavours to perform the work by any relevant dates or timeframes in the Proposal (but you acknowledge and agree that such dates or timeframes are indicative only).
4. Your general obligations
- You agree that you will comply with our reasonable directions and instructions, and will perform any obligations specified in the Proposal to be performed by you.
- You must provide us with all assistance, information, and materials as reasonably required by us to perform the work (including any data, content, and files requested by us). You are responsible for all data, content, and files supplied by you. We not required to check anything you provide in connection with this agreement for any errors, omissions, inconsistencies, ambiguities or discrepancies and will not be liable to you in connection with any such errors, omissions, inconsistencies, ambiguities or discrepancies.
- You must provide us (and our nominated personnel) with reasonable and safe access to your premises and/or system to the extent reasonably required to perform the work.
- If you fail to perform any of your obligations in this agreement after notification from us, and that prevents our progress of the work, we have the right to invoice you for any part or parts of the work already completed.
- You agree to nominate a contact person who shall be available for the purpose of any required consultation between you and us regarding the work.
5. System requirements
- You are responsible for ensuring the suitability and performance of your information technology system, including any required software, hardware, and/or network capabilities, in order to use the website and our work. We are not responsible for any failure or delay in our work to the extent affected by you not properly maintaining or operating your information technology system.
- Without limiting this clause, you must maintain up to date and secure software for use and enjoyment of the work, including downloading and/or installing of any new versions, upgrades, or updates.
- Any assistance that you require from us in this regard will incur additional costs to be agreed.
6. Data security and backup
- We are not responsible for security to your system or website or any unauthorised access to your website, system or data or any unauthorised use of such things (and without limiting this agreement you are responsible for any resulting confidentiality, privacy, or other liability due to any such security breach or unauthorised access).
- It is your responsibility to store and back up all data, content, materials and files supplied by you on your own computer, host, or server.
- Any assistance that you require from us in this regard will incur additional costs to be agreed.
7. Website hosting
- You acknowledge and agree that we are not the original provider of website hosting services, and that we only re-sell website hosting services as part of our work. You agree to comply with any requirements, term, conditions, and recommendations of such original website hosting services in relation to the website.
- Without limiting this agreement, to the extent permitted by law, we are not liable to you for any delay or failure by the original website hosting providers.
8. Acceptable use
- You must ensure that your website complies with all applicable laws. Without limiting this clause, you will ensure that your website and its content is not illegal, misleading or deceptive, defamatory, pornographic, obscene, discriminatory in any way, offensive, or likely to in any way harm any person or entity, and that it does not breach any applicable laws (including regarding privacy, intellectual property rights, or confidentiality obligations).
- You will also ensure that your website is not used for any “spamming” activity or other unethical practice.
- We may immediately upon notice, terminate this agreement if you are in breach of this clause. Upon termination under this clause, we may delete and/or destroy any and all of the content of your website and your information, without liability to you, and we shall be entitled to receive payment of Fees for work completed as at the date of termination as a debt due and payable.
9. Variations to the work
- You may request variations to the scope of work as specified in the Proposal by notice to us in writing. However, any such variations (including any time or cost impact of the variation) need to be agreed in writing before the variation is effective.
- Any additional work due to any agreed variation from the work will be charged at the rate of $130.00 per hour, unless otherwise specified in the Proposal or agreed in writing.
10. Approval of work
- On completion of our work, you will be notified and have the opportunity to review it. You must notify us in writing of any aspects of the work that are not compliant with this agreement within 5 working days of notification by us (Review Period).
- Any work which has not been notified to us as non-compliant in accordance with clause 10(a) will be deemed to have been approved by you.
- If you reject any of the work (acting reasonably) in accordance with clause 10(a) we will re-submit the relevant work for re-approval and clause 10(a) will apply to the re-submitted work. If we, acting reasonably and in good faith, consider that you have been unreasonable in any rejection of the work or that the non-approved work is compliant with this agreement, we may reject your non-approval by:
- notifying you in writing of the reasons; and/or
- terminate this agreement,
upon which the work is deemed to be approved and any outstanding Fees for the work are deemed to be due and payable by you upon this notice (although you may refer the matter to dispute resolution in accordance with this Agreement).
- Upon your approval or deemed approval of the work under this clause 10, you acknowledge that, unless otherwise agreed in writing, we are not obliged to provide ongoing support or services of any kind related to the work after that time.
11. Payment of Fees
- You must pay the fee specified in the Proposal (the Fee) for the work in accordance with clause.
- We may invoice you at any stage that a part of the Fee is stated to be payable under the Proposal or this agreement. If not otherwise stated, you must pay:
- a deposit of 50% of the Fee on the date of acceptance of the Proposal (subject to provision or our invoice); and
- the remaining 50% on the date when the work is approved or deemed to be approved (subject to provision or our invoice).
- If no payment terms are set out in the Proposal, payment of an invoice must be made by you within 14 days of the receipt of an invoice for the work.
- A deposit paid by you is only refundable if you terminate this agreement due to our default, in accordance with clause 17. The deposit is not otherwise refundable.
- In the event you do not make a payment under this agreement by the relevant due date, without limiting any other right, we are entitled to suspend any further performance of work, and/or charge interest on a daily basis at the rate of 10% per annum on the amounts from the due date up to and including the date of payment.
- Unless expressed to the contrary, all prices and amounts are exclusive of GST. If GST is payable in respect of a supply made in relation to this agreement, the recipient must pay to the supplier an amount (GST Amount) equal to the GST payable on the supply. The GST Amount is payable by the recipient in addition to and at the same time as any consideration for the supply, provided the supplier has given the recipient a tax invoice.
- We may set off from any amounts owing by us to you, any amounts due from you under this agreement or otherwise.
12. Title and risk
Risk in the work passes to you upon completion and approval of the work. The work, together with any items, materials or information of whatever nature produced or developed by us in connection with the work, remains our property until you pay in full for the work.
13. Intellectual property rights
- We acknowledge that, as between us, you own all intellectual property rights in all content, images, files, data or any other things you provide us in relation to the Work (Your IP). You grant us a royalty free and non-exclusive licence to use Your IP to the extent reasonably necessary to perform the work.
- You acknowledge that we own all other intellectual property rights whatsoever (other than Your IP) in connection with the work, including copyright, in all things that we provide you with in the course of the work. We grant you a non transferable and revocable licence for you to use such intellectual property rights of ours for the sole purpose of enjoying our work as it was intended to be used.
- Without limiting the terms of our licence to you, you must not use any of our intellectual property rights, including our trade marks, logos or any other signs or marks relating to Blis, without our prior written consent.
- You warrant that Your IP does not infringe any intellectual property rights of any party. You agree to indemnify us and our officers, employees, and agents against any claims against us for any alleged infringement of a third party’s intellectual property rights in connection with our use of any of Your IP.
- You agree that we may use your name and logo for the purpose of identifying you as a client of ours in our marketing material, both print and electronic, and that Blis may place on your website a hyperlink to our website labelled “designed by Harpy Tech Agency” or words to similar effect.
14. Force majeure
- We will not be liable to you for any failure to supply any delay or non-performance, where such failure delay or non-performance is as a result of an event which is unforeseeable, unavoidable or beyond our control, including industrial disputes, public disturbance, action by governmental authorities, lockouts, transport delays, fire, act of God, breakdown of hardware or defects in software, network interruptions or failures, data corruption, viruses, bugs, or other malware or harmful components, shortage of supplies of materials or labour, power or electrical failures or other failures or delays of utility providers, subcontractors or suppliers, natural disasters, or any accidents of any kind (Force Majeure Event).
- We will provide you with any relevant information in relation to the Force Majeure Event included estimated length of duration (if available). So far as it is reasonable and practicable to do so and in good faith, we will adjust obligations to the changed conditions in the context of the relevant Force Majeure Event. If the Force Majeure Event last for 30 days or more, we may terminate the agreement without liability.
You must indemnify and must pay on demand, us and our officers employees, contractors, and agents, for any loss, liability, damage, expense, or claim (including legal costs) that we incur in connection with your use or misuse of our work or the website, any property damage (including to any of our hardware, software, systems, or loss of data) or personal injury, illness or death to the extent contributed to by you or any of your officers, employees, contractors, or agents, or any breach of this agreement and/or any negligent act or omission, by you or any of your officers employees, contractors, or agents.
16. Exclusions and limitations of liability
- To the extent permitted by law, notwithstanding any other clause, all implied warranties, guarantees, and terms in connection with this agreement or the work are excluded (including that the work will be uninterrupted, timely, secure, or error free). To the extent permitted by law, our liability for a breach of any implied warranty, guarantee, or term which by law cannot be excluded, or under any express warranty, is limited, at our option, to:
- in the case of goods, repair or resupply of equivalent goods or refund any amount paid by in relation to those goods; or
- in the case of services, re-performing the relevant services, or refund any amount paid in relation to those services.
- Notwithstanding any other clause, to the extent permitted by law, we are not liable to you under or in connection with this agreement for any consequential or indirect loss, including loss of profit or revenue, loss of use of any data, systems, hardware, software, or website, loss in connection with any late performance or delivery, loss of reputation, loss of business, loss of opportunity arising out of or in connection with the agreement, or loss in connection with breach of third party contracts or arrangements, or loss due to any defects, errors, bugs, viruses, or other harmful components in the work.
- Notwithstanding any other clause, to the extent permitted by law, our aggregate maximum liability to you arising out of or in connection with the agreement (whether under contract, tort, statute, equity, or under any indemnity) is limited to the amount of Fees paid by you for the work under the agreement.
17. Termination and suspension
- We may in our discretion, in addition to any other rights it may have against you, suspend any further work and/or terminate this agreement if you:
- breach a term of this agreement which is incapable of being remedied (in our opinion);
- breach a term of this agreement which is capable of being remedied but which you do not remedy within 14 days of being notified of the breach by us;
- fail or refuses to approve the work (acting reasonably); or
- cease to be able to pay your debts as and when they become due and payable, cease to carry on business, are the subject of any steps taken to enter into any arrangement with your creditors, or are subject of any steps taken to appoint a receiver, receiver and manager, liquidator or provisional liquidator, an administrator or like person of the whole or part of your assets operations or business.
- We reserve the right at our sole discretion to cancel your work and terminate this agreement on written notice. If we choose to do so, you will receive a prorated refund for any Fees paid, but are not otherwise liable to you for any other liability in connection with such a cancellation.
- Termination of this agreement does not limit or prejudice any rights or obligations accrued to the date of termination.
- Unless expressed to the contrary in this agreement, if the day on or by which a party must do something under this agreement is not a business day, the party must do it on or by the next business day.
- Unless provided to the contrary in this agreement, each party must pay its own costs in relation to the negotiation, preparation, execution and performance of this agreement.
- The parties to this agreement consent to the use of electronic communications as a means of communicating about this agreement and the matters contained within it.
- This agreement may only be amended or replaced with the written agreement of all parties.
- You must not assign any of your rights, title or interest in the agreement to any party, except with our prior written consent.
- The laws of South Australia govern this agreement. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in South Australia and waives any right to claim that those courts are an inconvenient forum.
- We are an independent contractor and nothing in this agreement will be construed to characterise us as an agent or representative of you or constitute a partnership or other fiduciary relationship between the parties.
- Should any of the provisions of this agreement become void, invalid or enforceable the validity of the remaining parts of these conditions shall not be affected and shall continue in full force and effect.
- The failure of either party at any time to require performance of a provision of this agreement will in no way affect the right to require such performance at any time thereafter, nor will the failure of either party to exercise a right or remedy for a breach of any provision of this agreement prevent a party from asserting that right or remedy at any time thereafter.
- Any exclusion or limitation of liability, warranty, indemnity, payment obligation or provision that by its nature is intended to survive termination which is contained in this agreement is independent and survives termination of this agreement.
- In this agreement, unless the context requires otherwise:
- the singular includes its plural and vice versa, and words denoting any gender include all genders;
- words such as including or for example do not limit the meaning of the words preceding them;
- nothing in this agreement is to be interpreted against a party solely on the ground that the party or its advisers drafted it; and
- a reference to:
- a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;
- particular day or time is to that day or time in Adelaide, and to dollars or $ is to Australian currency; and
- any agreement (including this agreement) or document is to the agreement or document as amended, supplemented, novated or replaced from time to time.