Website Design Services Terms & Conditions
These terms and conditions were last updated on 28 April 2022.
Website means a fully functional website which meets the specifications set forth in the applicable Scope of Work (or as otherwise agreed in writing between the Company and the Customer).
Website Design Services means the design, creation, testing and delivery of a Website.
Website Design Services Terms and Conditions mean the terms and conditions set out below.
Unless the context requires otherwise, terms defined in the agreement between the Customer and the Company apply in these Website Design Services Terms and Conditions
These Website Design Services Terms and Conditions apply where the Company provides any Website Design Services to the Customer.
3. Creation of Website
3.1 Delivery Responsibilities of the Customer
(a) Within five business days of the date of the Commencement Date or such other date as agreed in writing between the parties, the Customer must deliver each of the items listed in Part B of the relevant SOW for the customer to provide which may include (but is not limited to) copy, textual materials, logos, photographs, sound files, databases, video files and other Website content required to be included in the Website (Customer Content).
(b) The Customer must deliver the Customer Content to the Company via email or Dropbox (unless otherwise agreed) and in the format and to the specifications required by the Company.
(c) Any delays in the provision of the Customer Content to the Company or failure to provide the Customer Content in accordance with the specified requirements will impact the delivery schedule for the Website Design Services.
(d) The Company may claim a day-for-day extension to the timetable for delivery of the relevant Website Design Services for each day that the Customer fails to deliver the Customer Content to the Company in excess of the five business days permitted by clause 2.1(a) of these Website Design Services Terms and Conditions.
3.2 Amendment of Customer Content
The Customer may amend the Customer Content at any time, subject to the Company being entitled to either further cost and / or an extension of time to process the amendments.
3.3 Company Created Content
(a) The Company must create the Company Website Content as specified in Part C of the relevant SOW.
(b) The Company must ensure that any of its Personnel who perform any part of the CEMOH Services are suitably qualified and possess appropriate skills and experience to perform the CEMOH Services to an acceptable standard.
3.4 Site Plan and Site Mock-up
(a) The Company must develop and design the Website in substantial conformity with the design concept agreed between the Customer and the Company prior to development of the site and as set out the relevant SOW.
(b) If, during the development process, the Company identifies any material issue which may impact its ability to develop the Website in accordance with the agreed design concept, it must notify the Customer and seek to resolve the design issues and agree on any amendments to the design concept and extensions for the delivery of the final website.
(c) Any agreed changes to the design concept must be made in writing and will be binding upon the Customer and the Company.
(d) If the parties are unable to reach agreement and the Company considers, acting reasonably, that it will not be able to develop and design the Website in accordance with the agreed design concept, it may issue the Customer with a notice and either party may then terminate the relevant Website Design Services.
3.5 Placement of Site During Development
(a) The Company must make the Website available for review by the Customer, periodically throughout the development stages.
(b) The Company must notify the Customer of the location of the Website and the method for gaining access to the Website.
3.6 Stages of Completion
(a) Subject to clause 2.6(b) of these Website Design Services Terms and Conditions, the Company must use its reasonable efforts to meet the completion schedule set out in the relevant SOW for the delivery of the Website.
(b) The Customer acknowledges and agrees that:
(i) any changes or deviations in the specifications, site plan, mockups, graphics, or any other element of the Website as provided in the relevant SOW; or
(ii) any Customer delays in fulfilling the Customer’s responsibilities, including delivering Customer Content or promptly reviewing and commenting on completed work,
may lead to delays in the completion schedule and the right of the Company to determine, in its discretion (acting reasonably) any extension to the timetable for delivery of the final Website.
(c) Subject to clause 3.3 of these Website Design Services Terms and Conditions, at any time prior to the final Website being provided in accordance with clause 2.8 of these Website Design Services Terms and Conditions, the Customer may suspend or terminate the Website Design Services by notice to the Company.
3.7 Form of Delivery
(a) The final Website will be uploaded by the Company to the Customer’s server.
(b) A copy of the Website can be downloaded from the server.
3.8 Acceptance and testing
(a) The Customer shall have a period of thirty days following delivery of the final Website (Test Period) to test the Website.
(b) The Customer must notify the Company in writing within the Test Period that it:
(i) accepts the Website, without further amendment (Acceptance Notice); or
(ii) does not accept the Website and requires aspects of the Website that do not conform to agreed specifications as outlined in the relevant SOW (as may be amended in accordance with this agreement) to be amended so as to conform with the specifications (Rectification Notice).
(c) Any Rectification Notice must include sufficient details of the non-conforming aspects of the Website as against the agreed specifications to enable the Company to clearly understand the non-conforming aspects.
(d) If the Customer does not issue an Acceptance Notice or a Rectification Notice within the Test Period, the Customer shall be deemed to have accepted the Website in all respects.
(e) Following acceptance (or any deemed accepted) of the Website any updates/changes/development to the Website will incur additional costs as may be agreed in a separate scope of work.
3.9 Correction of Deviations From Specification
(a) Where the Customer issues a Rectification Notice the Company shall have a period of at least seven days following receipt of that notice to correct the specified non-conforming aspects so that they are then in conformance with the specifications and to deliver such corrected items to the Customer.
(b) If the Company considers that any relevant aspect set out in the Rectification Notice conforms to the required specifications without any amendment or alteration, it must notify the Customer and set out reasons for its position.
(c) The Customer shall have a period of seven days after delivery of the revisions to notify the Company of any further non-conformance with the specifications.
(d) The Company shall have a period of seven days after receipt of this notification to make corrections.
(e) The parties may repeat the process set out in clause 2.9(a) to (d) of these Website Design Services Terms and Conditions inclusive twice without the Customer incurring any additional cost.
(f) Further revisions will be at the Customer’s additional cost in accordance with the Company’s standard costs.
3.10 Back-Up Copy of Website
(a) The Company shall retain a backup of the final accepted Website files for a period of 40 days following acceptance (or deemed acceptance) by the Customer.
(b) After this 40 day period:
(i) the Customer is responsible for arranging a back-up copy of their Website; and
(ii) the Company may destroy all copies of the Customer’s Website, unless the Company is providing hosting of the Customer’s Website pursuant to a separate hosting agreement.
4. Compensation For Company Services
4.1 Development Fee
In consideration for the provision of the relevant Website Design Services the Customer must pay to the Company the development fee specified in the relevant SOW (Development Fee)
4.2 Initial Payment
(a) The Customer must pay to the Company an amount equal to 50% of the Development Fee (Initial Payment) on or before the Commencement Date.
(b) If the Customer does not pay the Initial Payment when required by clause 9.2(a) of these Website Design Services Terms and Conditions, the Company will have no obligation to commence the relevant Website Design Services unless and until it has received the Initial Payment.
(c) The remainder of the Development Fee shall be paid to the Company at the times described in the Payment Schedule as set forth in the relevant SOW.
4.3 Early Termination
(a) If this agreement or SOW (as applicable) is terminated or the Website Design Services are suspended in accordance with the terms of this agreement, the Customer must pay to the Company a fee for the work completed up to the date of that termination or suspension (Early Termination Fee).
(b) The Company must, acting reasonably, determine the amount of the Early Termination Fee based on the percentage of work that has been completed up to the point of termination or suspension multiplied by the Development Fee and notify the amount to the Customer.
(c) The Company may include any third-party costs it has incurred on or before the date of termination of suspension in the Early Termination Fee.
(d) The Customer must pay the Early Termination Fee within 3 business days of receiving notice under clause 3.3(b) of these Website Design Services Terms and Conditions.
(d) Upon receipt of the Early Termination Fee, the Company must deliver all partially completed work to the Customer.
5. Proprietary Rights to Website
5.1 Creation of Website As A Work For Hire
(a) Subject to this clause 5 of these Website Design Services Terms and Conditions and this agreement, the Company hereby agrees that all materials that are part of the Website including the Customer Content and the Company Website Content shall be considered “works for hire.”
(b) Subject to the receipt of the full amount of the Development Fee, the Customer shall be considered the exclusive owner of all proprietary rights, including but not limited to Federal Copyrights, in and to the Website.
(c) For purposes hereof, the term “work for hire” shall have the meaning defined in the Australian Copyright Act. The Company acknowledges and agrees that subject to receipt of the full amount of the Development Fee the Customer shall have all exclusive rights in and to the Website that are available to the author or owner of a copyright.
(d) Subject to receipt by the Company of the full amount of the Development Fee and all other amounts payable by the Customer the Company acknowledges and agrees that the Customer shall have all exclusive rights in and to the Website that are available to the author or owner of a copyright.
5.2 Confirmatory Documents and Acts
At the reasonable request of the Customer, subject to receipt of the full amount of the Development Fee and all other amounts payable by the Customer, the Company will execute further documents and take additional actions necessary to confirm or perfect the rights of the Customer in and to the Website content including executing assignments of rights, assisting in the registration of copyrights and other proprietary rights, executing waivers and certificates of originality, and any other reasonable action requested by the Customer.
The Company may subcontract any part of the Website Design Services.