FireworkS WEBSITES Pty Ltd – General Terms and Conditions
This document forms part of The Agreement. It needs to be read in addition the Scope and / or Quote.
1.1. “Supplier” or “us” shall mean Fireworks Websites Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Fireworks Websites Pty Ltd.
1.2. “Client” or “you” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by the Supplier to the Client.
1.3. “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4. “Services” shall mean all Services supplied by the Supplier to the Client as specified in the Quote or Proposal.
1.5. “Price” shall mean the price payable for the Services as agreed between the Supplier and the Client in accordance with clause 3 of this Agreement.
1.6. “Asset” shall mean any software, application, intellectual property, code, design or website developed by the Supplier.
1.7 “Agreement” includes documents titled Proposal, Quote and / or Scope approved by the Client, plus General Terms and Conditions of Trade.
1.8 “Quote” or “Proposal” sets out the Services being provided, the price or fees, the time frames and other conditions applying to the Agreement.
1.9 “Scope” shall mean a document created by the Supplier or the Client that sets out the client’s requirements in regards to software, websites, applications, systems, design etc.
2.1. Any instructions or project deposit received by the Supplier from the Client for the supply of Services and/or the Client’s acceptance of Services supplied by the Supplier shall constitute acceptance of the Agreement.
2.2. Where more than one Client has entered into this Agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3. Upon acceptance of these terms and conditions by the Client, the Agreement is binding and can only be amended with the written consent of the Supplier.
2.4. The Client shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of control of the Client. The Supplier has the right to terminate this Agreement if the Client does not notify the Supplier of the proposed change of control.
2.5. Services are supplied by the Supplier only on these terms and conditions of the Agreement herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
2.6. The Client agrees that the Services do not include any services carried out by other professions such as legal or accounting and if other such professional services are required the Client shall obtain these services at the Client’s own cost.
2.7. The Supplier will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the Services which is attributable to incorrect information or specifications provided by the Client.
3. Price and Payment
3.1. At the Supplier’s sole discretion the Price shall be either:
- As indicated on invoices provided by the Supplier to the Client in respect of Services supplied; or
- The Supplier’s quoted price (subject to clause 3.2) which shall be binding upon the Supplier provided that the client shall accept the Supplier’s quote in writing within thirty (30) days.
3.2. The Supplier reserves the right to change the Price in the event of a variation to the Services described in the Proposal, Quote or Scope.
3.3. At the Supplier’s sole discretion a deposit may be required.
3.4. At the Supplier’s sole discretion:
- Payment shall be due on delivery of the Services; or
- Payment shall be due before delivery of the Services; or
- Payment for approved Clients shall be made by instalments in accordance with the Supplier’s payment schedule.
3.5. Time for payment for the Services shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
3.6. Payment will be made by direct credit, credit card, Paypal or by any other method as agreed to between the Client and the Supplier.
3.7. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4. Delivery of Services
4.1. The failure of the Supplier to deliver the Service (or any part of them) shall not entitle either party to treat this Agreement as repudiated.
4.2. The Supplier shall not be liable for any loss or damage whatever due to failure by the Supplier to deliver the Services (or any part of them) promptly or at all, when due to circumstances beyond the control of the Supplier.
5.1. If the Supplier retains ownership of the Services nonetheless, all risk for the Services passes to the Client on delivery.
5.2. All third-party software (including, but not limited to, open-source software) is provided at the Client’s own risk and is not in any way warranted by the Supplier, nor shall the Supplier be in any way responsible for the implementation or effects of any ‘patches’, ‘updates’, or ‘fixes’ offered by the manufacturer of the software.
5.3. The Client acknowledges that once the Services have been provided by the Supplier and the project is signed-off, it is the sole responsibility of the Client to maintain the Asset unless an on-going maintenance schedule has been agreed upon in writing by both parties. The Supplier shall not be liable for any loss or damage caused by the Client making any changes to the Asset, and the Client acknowledges that they do so at their own risk.
5.4. The Supplier shall not be liable whatsoever for any loss or damage incurred by the Client as a result of:
- The Client failing to comply with any part of this agreement;
- Any equipment failure (including, but not limited to, service provider power and telephone networks);
- Computer hackers.
- Changes or upgrades made by third parties (including, but not limited to, Google, WordPress, Joomla, PHP, MySQL, Linux, Cpanel)
6.1. The Supplier and the Client agree that ownership of the Services shall not pass until the client has:
- Paid the Supplier all amounts owing for the particular Services and for default (Clause 11); and
- Met all other obligations due by the Client to the Supplier in respect of all Agreements between the Supplier and the Client.
6.2. Receipt by the Supplier of any form of payment shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised. Until then the Supplier’s ownership or rights in respect of the Services shall continue.
7. Errors and Omissions
7.1. The Client shall inspect the Services on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Supplier of any alleged defect, errors, omissions, or failure to comply with the description or Quote. The Client shall afford the Supplier an opportunity to inspect the Services within a reasonable time following delivery if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect.
7.2. For defective Services, which the Supplier has agreed in writing that the Client is entitled to reject, the Supplier’s liability is limited to either (at the Supplier’s discretion) replacing the Services or correcting the Services, except where the Client has acquired Services as a consumer within the meaning of the Competition and Consumer Act 2010 (Cth) (CCA) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion, either a refund of the purchase price of the Services, or repair of the Services, or replacement of the Services.
8. Limitation of Liability
8.1. If the Client is a consumer within the meaning of section 3 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) (CCA) (Consumer), when the Supplier supplies the Services, the Client will have the benefit and protection of the consumer guarantees in the CCA.
8.2. If the Client is not a Consumer, all guarantees in the CCA and any other implied statutory conditions or warranties are excluded to the fullest extent permitted by law and the Supplier’s only obligation resulting from a breach by the Supplier of any guarantee, condition or warranty is limited, at the Supplier’s option to:
- Supplying the Services again; or
- Paying the cost of having the Services supplied again.
8.3. Nothing in this Agreement is intended to exclude, restrict or modify any rights that exist under the CCA or any other applicable legislation which may not be excluded, restricted or modified by agreement.
8.4. Notwithstanding any other provision of this Agreement, the liability of The Supplier under this Agreement for any loss or damage suffered by the Client due to any act or omission of The Supplier is limited to the total Price paid by the Client under this Agreement.
8.5. Notwithstanding any other provision of this Agreement, and to the fullest extent permitted by law, The Supplier will not be liable to the Client for consequential, indirect or special losses or damages or any kind (including, without limitation, loss of profit, loss of corruption or data, business interruption or indirect costs) suffered by the Client as a result of any act or omission whatsoever of The Supplier or its representatives.
9. Client Content
9.1. Client Materials means the models, software (including source code and object code versions), information, design concepts, audio, video, drawings, diagrams, charts, specifications, records, concepts, plans, formulae, designs in any medium, methods and processes, including all copies of and extracts from them and data stored by any means which is prepared or required to be prepared, delivered or required to be delivered on behalf of the Client to enable the Supplier to perform the Services.
9.2. The Client warrants that all Client Materials provided to the Supplier:
- Be true and correct in every particular; and
- Be owned by the Client or have the legal right to use the Intellectual Property; and
- Not breach any third-party copyright; and
- Not be, nor contain, anything that is defamatory of any person or is indecent or obscene; and
- Not breach any industry standards, regulations, legislation or guidelines; and
- Not contain nor constitute a statement that is misleading or deceptive or likely to deceive or to mislead or which is otherwise in breach of a provision of the Trade Practices Act of 1974.
9.3. The Client must:
- As soon as practical after commencement of this Agreement provide the Client Materials to the supplier.
- Without delay, provide the Supplier with such materials, data, information and assistance reasonably requested (including access to facilities and equipment where necessary) for the purpose of performing the Services.
- Promptly and fully respond to all communications from the supplier.
9.4. The Client indemnifies the Supplier and their representatives against any and all claims, demands, losses, damages and costs that the Supplier incurs or may incur as a result of, or arising in connection with:
- A breach by the Client of any of the Client’s warranties under Clause 9.2;
- The failure of the Client to comply with Clause 9.3;
- Any, or any alleged, infringement or violation by the Supplier or its representatives any of any third party’s intellectual property rights arising as a result of or in connection with the delivery of the Services under this Agreement and any use of the Client Materials, the intellectual property rights in the Client Materials, or the Software, by or on behalf of the Supplier.
9.5. The Supplier reserves the right to refuse to accept, or withdraw from display at any time, any material submitted by the Client that does comply with this clause. This includes any material which:
- Is unlawful or inappropriate
- Contains a virus or hostile program
- Constitutes harassment, racism, violence, obscenity, harmful intent or spamming
- Constitutes a criminal offence, infringes privacy or copyright
- Is of questionable intent or source (at Firework’s discretion).
10. Intellectual Property
10.1. All Intellectual Property Rights in the Software vest in the Supplier immediately on creation.
10.2. The Supplier retains all right and title in the background intellectual property. The Supplier grants to the Client a non-exclusive, perpetual, irrevocable, world-wide, royalty-free licence to use, reproduce, modify, publish, communicate, adapt and exploit the background intellectual property to the extent necessary to fully exercise the rights granted to it under clauses 10.3 and 10.5.
10.3. The Supplier will irrevocably and unconditionally assign to the Client, including by way of an assignment of future Intellectual Property Rights, all of its intellectual property rights in the Software other than Background Intellectual Property when the Services have been paid in full. Whilst the Client is in default of payment or any other terms of this Agreement, the Client shall have no right to use the materials referred to in this Agreement.
10.4. The Client grants the Supplier a non-exclusive, royalty free licence for the Term to use, reproduce, modify and adapt the Software solely for the purpose of providing the Services to the Client.
10.5. The Client retains all right and title in the Client Materials. The Client grants to the Supplier a non-exclusive, perpetual, irrevocable, world-wide, royalty-free licence to use, reproduce, modify, publish, communicate, adapt and exploit the Client Materials to the extent necessary to perform the Services.
10.6. The Client shall use any third-party software supplied by the Supplier, and identified as such, strictly in terms of the licence under which it is supplied.
11. Default & Consequences of Default
11.1. If the Client defaults in payment of any invoice when due, the Client shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in pursuing the debt including legal costs on a solicitor and own client basis and the Supplier’s collection agency costs.
11.2. Without prejudice to any other remedies the Supplier may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Supplier may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. The Supplier will not be liable to the Client for any loss or damage the Client suffers because the Supplier has exercised its rights under this clause.
11.3. If any account remains overdue after thirty (30) days then an amount of the greater of thirty five dollars ($35.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($400.00)) shall be levied for administration fees which sum shall become immediately due and payable.
11.4 Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable in the event that:
- Any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Client will be unable to meet its payments as they fall due; or
- The Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
- A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in espect of the Client or any asset of the Client.
11.5 If the Client in default has any information or files on the Supplier’s web space, The Supplier can, at its discretion, remove all such material, or withhold access from its web space. The Supplier is not responsible for any loss of data incurred due to the removal of the service. Removal of such material does not relieve the Client of the obligation to pay any outstanding charges assessed to the Client’s account.
12. Security and Charge
12.1. Despite anything to the contrary contained herein or any other rights which the Supplier may have howsoever:
- Where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Supplier or the Supplier’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that the Supplier (or the Supplier’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
- Should the Supplier elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis.
- The Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Supplier or the Supplier’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 12.1.
13.1. Either party may terminate this Agreement by written notice if the other party commits a breach of this Agreement:
- And the breach is incapable of remedy; or
- The breach is capable of remedy but the other party fails to rectify the breach within 30 days of a request to do so from the non-defaulting party.
13.2. Either party may terminate this Agreement immediately by giving notice to the other party if the other party suffers an Insolvency Event.
13.3. On termination of this Agreement:
- The Client must pay to the Supplier all Fees due and payable under this Agreement as at the date of termination within 30 days, unless the Agreement is terminated by the Supplier under clauses 13.1 or 13.2, in which case the Client must pay to the Supplier all of the Fees whether due at date of termination or not; and
- The parties must return all confidential information and any other property of the other party.
13.4. Cancelation occurs when either party terminates the Agreement at any time, for any other reason other than as set out in 13.1 or 13.2.
- The Supplier may cancel the Agreement or cancel delivery of Services at any time before the Services are delivered by giving written notice to the Client. On giving such notice the Supplier shall repay to the Client any sums paid in respect of the Price, less the value of time spent by the Supplier. The Supplier shall not be liable for any loss or damage whatever arising from such cancellation.
- The Supplier reserves the right to cancel the Agreement if the Client does not reasonably respond to requests for necessary information, or provide the necessary information for a period of more than 2 months. In such cases the Supplier is in no obligation to refund any monies paid by the Client.
- In the event that the Client cancels the Services or Agreement, the Client shall be liable for the Price due under this Agreement as at the date of cancellation plus any loss incurred by the Supplier (including, but not limited to, any loss of profits) up to the time of cancellation.
- The Supplier is under no obligation whatsoever to accept the cancellation of the services/orders, nor make refunds.
14. Privacy Act 1988
14.1. The Client and/or the Guarantor/s agree for the Supplier to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by the Supplier.
14.2. The Client and/or the Guarantor/s agree that the Supplier may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
- To assess an application by the Client; and/or
- To notify other credit providers of a default by the Client; and/or
- To exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
- To assess the credit worthiness of Client and/or Guarantor/s.
14.3. The Client consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
14.4. The Client agrees that personal credit information provided may be used and retained by the Supplier for the following purposes and for other purposes as shall be agreed between the Client and Supplier or required by law from time to time:
- Provision of Services; and/or
- Analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Services; and/or
- The collection of amounts outstanding in the Client’s account in relation to the Services, including the processing of any payment instructions, direct debit facilities and/or credit facilities.
14.5. The Supplier may give information about the Client to a credit reporting agency for the following purposes:
- To obtain a consumer credit report about the Client; and/or
- Allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
All confidential information, including all trade secrets, processes, proprietary data, and any pricing or product information disclosed under the Agreement will remain the exclusive and confidential property of the disclosing party except as required by law. The receiving party will not disclose the confidential information of the disclosing party and will use at least the same degree of care, discretion and diligence in protecting the confidential information of the disclosing party as it uses with respect to its own confidential information. The receiving party will limit access to Confidential Information to its representatives on a ‘need to know’ basis and will instruct its representatives to keep the information confidential. This clause will survive termination or expiry of this Agreement.
16. Dispute Resolution
16.1 A party must not start court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of this Agreement unless that party has complied with this clause 16.
16.2 A party claiming that a dispute has arisen in respect of this Agreement must notify the other party’s key contact.
16.3 During the 10 day period after notice is given under clause 16.2 (or such longer period as agreed to in writing by the key contacts) the parties must use all reasonable endeavours to resolve the dispute.
16.4 A party who has complied with clause16.3 may terminate the dispute resolution process by giving notice to the other party, and on such termination, may institute such legal proceedings as the party deems appropriate.
16.5 The Supplier will assume the client contact for notices is the person who signs acceptance to the Agreement.
16.6 The Client should address notices to the General Manager, at the Suppliers registered address.
17.1. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2. These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria and are subject to the jurisdiction of the courts of Victoria.
17.3. The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by the Supplier.
17.4. The Supplier may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.5. The Supplier reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Supplier notifies the Client of such change.
17.6. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
17.7. The failure by the Supplier to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Supplier’s right to subsequently enforce that provision.