2. Unless otherwise agreed in writing by the parties, the term of this agreement will commence on the date any work begins.
3. Unless specifically stated as a fixed price quote, any cost estimates that are or have been given by My Website Designer Australia are estimates only. Actual time spent and products/services supplied may be used as the basis for billing.
Products & Services
4. My Website Designer Australia may also supply the client with products/Services (as ordered by client and agreed by My Website Designer Australia) from time to time. In the context of this Agreement, "Products” or “Services" means any hardware and/or third party software provided to the client by or on behalf of My Website Designer Australia pursuant to this Agreement.
Reporting and Meetings
5. The client shall make its employee (specified in the agreement or such other person as the client shall nominate in writing) (the "client Contact") available to meet with My Website Designer Australia when reasonably required by My Website Designer Australia for the purposes of discussing the status of the Services. My Website Designer Australia will meet regularly with the client Contact (by remote communication facility if necessary) and report to the client on the status of the Services.
Consulting Rates & Other Expenses
6. My Website Designer Australia will provide Services to the client and will be entitled to charge the client for such Services at the appropriate rates or the rate specified in the agreement.
7. My Website Designer Australia shall be entitled to provide the Services remotely from its own premises and will not be required to attend the client's premises. If My Website Designer Australia is required to attend the client's premises for any reason pursuant to this Agreement, the client will reimburse My Website Designer Australia for reasonable transport and/or accommodation expenses incurred by My Website Designer Australia in doing so. However this does not include transport or accommodation expenses where the client's premises are located within 10kms of My Website Designer Australia’s office.
8. The client authorizes My Website Designer Australia to obtain access to the client's computing facilities using the remote means of access & subject to any Restrictions on Access set out in the agreement, for the purposes of providing the client with Services.
9. My Website Designer Australia will not use the Means of Access (or any other methods of remote access) to access the Facilities for any purpose other than to provide the Services. However, My Website Designer Australia shall be permitted to gain remote access to the Facilities for lawful purposes using any publicly available means (such as the World Wide Web), which do not require special authorization.
10. My Website Designer Australia will take the following steps to ensure the security of the Facilities (insofar as the use of My Website Designer Australia's systems and the Means of Access are concerned):
a) ensuring that no passwords are stored in easily recognizable form on My Website Designer Australia's own systems in circumstances where a breach of My Website Designer Australia's own internal security may reveal them;
b) ensuring that only those employees and contractors of My Website Designer Australia who are required to access the Facilities using My Website Designer Australia's systems and the Means of Access are able to do so;
c) ensuring that the Facilities are not capable of being accessed by a system or user, which transits My Website Designer Australia's own systems, except as permitted by this Agreement.
11. The client indemnifies My Website Designer Australia against any loss or damage arising directly or indirectly from any unauthorized use of the Facilities to which My Website Designer Australia has been granted remote access, provided that such unauthorized use has not arisen as the result of any material breach by My Website Designer Australia of its own obligations under Clause 10 of this Agreement.
12. The client will also reimburse My Website Designer Australia for all expenses incurred by My Website Designer Australia on the client's behalf or in carrying out its obligations under this Agreement.
13. The client will pay My Website Designer Australia for the cost of any Products (including any licensing that My Website Designer Australia is required to pay to obtain a sub-license in favour of the client for any third party software) together with My Website Designer Australia's own charge that it levies for handling and/or obtaining any relevant sub-licenses.
Payment of Invoices
14. My Website Designer Australia will be entitled to invoice the client on an interim basis at least monthly for progress payments for any Services performed or Products supplied during the previous month (or during any earlier period which has not previously been invoiced) together with such expenses as the client is required to reimburse My Website Designer Australia.
15. All invoices rendered by My Website Designer Australia are payable within fourteen (14) days from the date of invoice. The client agrees to pay My Website Designer Australia in full within this time period.
16. If the client fails to pay any invoice by the due date for payment, then without prejudice to My Website Designer Australia's rights under this Agreement, the client accounts may be suspended & clients will also be required to pay My Website Designer Australia interest on the outstanding amount at the rate of 5% per month. We also reserve the right to cancel any discounts on overdue invoices & will reissue the invoice to the client with the full amount owed.
Confidentiality
17. My Website Designer Australia will not disclose to any third party or use other than for the purposes of this Agreement any knowledge or information imparted to or obtained by it during or in connection with the fulfillment of this Agreement which is of a secret or confidential nature relating to the business, equipment, processes relating to the equipment, the products, services, process or business strategies offered or employed by the client. This obligation of confidence will cease to apply in relation to information that My Website Designer Australia is required to disclose by any law, or which becomes part of the public domain other than as the result of a breach by My Website Designer Australia of its obligations of confidence under this Agreement.
Intellectual Property
18. Unless otherwise agreed in writing by My Website Designer Australia, the copyright and all other rights relating to any software provided to the client by or on behalf of My Website Designer Australia pursuant to this Agreement (the "Intellectual Property") will remain the property of My Website Designer Australia or where applicable its licensors.
19. Upon payment in full for the Services provided by or on behalf of My Website Designer Australia pursuant to this Agreement, My Website Designer Australia grants the client a non-exclusive and non-transferable perpetual license to use the Intellectual Property for the client's own business purposes. In the case of the third party software or licenses, My Website Designer Australia will obtain a sub-license in favour of the client or server where the software is located.
20. My Website Designer Australia warrants to the client that to the best of its knowledge, it has the right to grant the licenses referred to in this Agreement and the use by the client of any software provided by My Website Designer Australia will not infringe the rights of any third party. This may also include licenses that are ONLY valid on My Website Designer Australia’s servers.
21. My Website Designer Australia also grants the client the right to copy the Intellectual Property for the purposes of staff and subcontractor education and system backups. However, the client must not copy any of the Intellectual Property for any other purposes including transferring the Intellectual Property to a 3rd party without prior written consent from My Website Designer Australia.
22. The client must not de-compile, disassemble, decrypt, extract or otherwise reverse engineer any part of any software that is provided to the client by My Website Designer Australia without My Website Designer Australia's prior written consent.
23. The client must hold any software (in source and/or in object code) and other materials provided to the client by My Website Designer Australia confidential. The client must not disclose any of those materials to any third party without My Website Designer Australia's prior written consent. The client must also take all reasonable steps within its power to protect the Intellectual Property of My Website Designer Australia & its contactors.
High Risk Activities
24. None of the software or the Products provided pursuant to this Agreement is designed or intended to be fault-tolerant or designed or intended for use as or for use where their failure or malfunction could lead to death, personal injury, or economic, physical or environmental damage ("High Risk Activities"). The term "High Risk Activities" includes but is not limited to on-line control equipment in hazardous environments requiring fail-safe performance (such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, direct life support machines, weapons systems, banking or financial control or reporting systems, or security systems). The client warrants that it will not use, distribute or resell any of the Products or the software for any High Risk Activities and that it will ensure that permitted end-users of such Products or software are provided with a notice in the form set out in this Clause. The client will indemnify My Website Designer Australia for any loss, cost, damage or third party claim arising from the client's use of any of the Products in High Risk Activities or from any breach by the client of this clause.
Liability
25. Except for express undertakings to indemnify and any warranties set out in this Agreement:
a) To the extent permitted by the law, My Website Designer Australia expressly excludes all conditions and warranties whether express or implied.
b) Notwithstanding any other provision in this Agreement, in no event will My Website Designer Australia be liable to any party including the client for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of this Agreement (including for loss of profits, use, data, or other economic advantage), however it arises, whether for breach of this Agreement or in tort, and even if My Website Designer Australia has been previously advised of the possibility of such damage. Further, liability for such damages shall be excluded, even if inclusive remedies provided hereunder fail their essential purpose. The client will indemnify My Website Designer Australia and keep it indemnified from and against any claims by any third party for or in respect of such damages.
26. Certain provisions relating to the trading of goods and services and other statutes, rules and regulations in Australia may imply certain non-excludable warranties or conditions. To the extent that they are not permitted to be excluded, My Website Designer Australia's liability for breach of such conditions or warranties and the client's sole and exclusive remedy in relation to such breaches shall be limited to:
a) in the case of Products or software or other goods supplied by My Website Designer Australia, at My Website Designer Australia's option:
i) the replacement or repair of those Products or software or goods, or the supply of equivalent goods.
b) in the case of Services, at My Website Designer Australia's option:
i) supplying the Services again; or
ii) the supply of equivalent services.
27. The client is solely responsible for the proper backup and protection of all of its software and data, as well as the implementation and maintenance of firewalls and security measures (including proper virus control) in relation to the Facilities.
Assistance and Facilities
28. The client will provide My Website Designer Australia with all reasonable assistance and facilities free of charge (including without limitation of the Means of Access and the other Items referred to in the agreement, office facilities, and liaison with the necessary officers and employees of the client) in order to permit My Website Designer Australia to efficiently provide the Services.
No Poaching
29. The client undertakes to My Website Designer Australia that it will not for a period of two years from the termination of this Agreement entice away or endeavour to entice away from My Website Designer Australia any employee of My Website Designer Australia. The client acknowledges that the prohibition and restriction contained in this clause are reasonable in the circumstances and necessary to protect the business of My Website Designer Australia.
Agreement Non-exclusive
30. The client acknowledges that My Website Designer Australia is providing Services to the client on a non-exclusive basis and that My Website Designer Australia may provide services of the same or a similar nature as the Services to any other party.
Termination
31. This Agreement may be terminated in the following circumstances:
a) By either party by giving the other party thirty (30) days notice in writing to that effect;
b) Immediately by My Website Designer Australia by notice in writing if the client fails to remedy a breach of this Agreement (including any provision as to payment) within fourteen (14) days of receipt of a notice from My Website Designer Australia of such breach requiring it to do so; or
c) By either party immediately by notice in writing if the other party takes any corporate action or other steps are taken or legal proceedings are started (and are not withdrawn, discontinued or struck out within twenty-one days) for its winding up, liquidation or dissolution (other than for the purposes of reconstruction) or the appointment of an administrator, receiver, receiver and manager, official manager, Liquidator, provisional Liquidator, trustee or similar office of it or of any or all of its revenues and assets ("Insolvency Event"), and such Insolvency Event remains in existence in respect of such party as the time of service of the Notice.
32. On termination of this Agreement however occurring, all moneys unpaid by the client pursuant to this Agreement will immediately become due and payable. If such moneys remain unpaid for a period of thirty days then (without prejudice to any other rights that My Website Designer Australia may have for breach of this Agreement or otherwise) My Website Designer Australia will be entitled to retake possession of the Products and to disable any software provided pursuant to this Agreement (including by remote means).
33. The client's obligations (including any obligations to indemnify) under clauses 11, 18 to 23 inclusive (Intellectual Property), 24 (High Risk Activities), 25 to 27 inclusive (Liability), and My Website Designer Australia's obligations under clause 17 (Confidentiality) shall survive the termination of this Agreement for whatever reason.
General
34. Any notice required or contemplated by this Agreement shall be deemed to have been duly given if it is in writing, properly addressed and delivered personally or mailed by registered or certified mail, postage prepaid addressed or by fax or electronic mail to the client or My Website Designer Australia at the address set out in the agreement or this Agreement or such other address nominated by a party in writing.
35. The client may not assign any of its obligations under this Agreement without the prior written consent of My Website Designer Australia. However My Website Designer Australia may arrange for subcontractors to perform any of My Website Designer Australia's obligations under this Agreement.
36. My Website Designer Australia will not be liable to the client or to any third party for any non-performance or delay in the performance of its obligations under this Agreement, if events or conditions beyond its reasonable control cause the non-performance or delay and My Website Designer Australia gives the client prompt notice thereof. In no event will this provision affect client's obligation to make payments to My Website Designer Australia under this Agreement except in respect of Services that are unable to be performed by My Website Designer Australia, until they can be performed.
37. A failure, delay, relaxation or indulgence by either Party in exercising any right, power or privilege conferred on the Party by this Agreement shall not operate as a waiver of the power or right. A single or partial exercise of any right, power or privilege hereunder does not preclude the further exercise of the same right or the exercise of any other right hereunder. A waiver of a breach does not operate as a waiver of any other breach.
38. If any part of this Agreement is held by a court of competent jurisdiction to be invalid, then;
a) Where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result; and
b) In any case the offending provision must be severed from this Agreement the remainder of this Agreement shall continue in full force and effect unless such reading down or severance affects the basic nature of this Agreement.
39. This Agreement shall be governed by and must be construed in accordance with the laws of Victoria, Australia, and the client irrevocably submits to the non-exclusive jurisdiction of the courts of that State.
Backup information:
40. It is the client’s responsibility for all backups of software, websites & databases unless stated in writing by My Website designer Australia.
41. My Website designer Australia can for an additional fee provide clients with a backup copy of software & websites on a CD/DVD if required.