TERMS & CONDITIONS
This document defines the terms and conditions of our working relationship. Unless otherwise agreed to in writing by both the parties, the terms of this Agreement will commence on the date specified.
All services that Software Origins Pty Ltd (ACN 066 368 901) t/a Going Square (ABN 78 352 075 191) referred to as Going Square may be contracted to produce or provide for the client (referred to as CLIENT) will be subject to the following:
As used herein and throughout this Agreement:
“Agreement” means the entire content of this Basic Terms and Conditions document, the Written Proposal document(s) (if any), Schedule(s) (if any), together with any other Supplements.
“Content” means all materials, information, photography, writings and other creative content.
“Copyrights” means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Australian and International Copyright Law.
“Final Deliverables” means the services and work product specified in the Written Proposal (if any) to be delivered by Going Square to the Client, in the form and media specified in the written Proposal (if any).
“Services” means all services and the work product to be provided to Client by Going Square as described and otherwise further defined in the Written Proposal (if any).
“Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables.
“Open Source Software” means computer software that is available in source code form for which the source code and certain other rights normally reserved for copyright holders are provided under a software license that permits users to study, change, and improve the software.
“Ongoing Management” means the ongoing work to keep the website functioning and secure. This includes, but is not limited to: data management, backups, maintenance, upgrades and software patches.
1. Confirmation of Project
Before starting a project, Going Square require the customer's written confirmation, by email that they are agreeing to work with Going Square on a Project for their business, and of acceptance of the Proposal. It will be assumed that this confirmation also binds the CLIENT to these Terms and Conditions.
The CLIENT authorises Going Square to perform the services outlined in this agreement on the CLIENTS’ behalf, which may include, but is not limited to, accessing their hosting account and disk space, creating databases and applications, creating email and social network accounts and submitting the project to search engines.
3. Agreement Scope and Period
Services supplied, costs and rates are limited to what is specifically set forth in this agreement. Any additional services will require an additional agreement. We reserve the right to adjust our service and rates after this period.
4. Costs and Fees
Changes and additions outside of the scope of this document will be quoted and invoiced to the CLIENT. The CLIENT will be advised of all costs, changes and additions before commencement of the additional work. Fees for professional services do not include outside purchases such as, but not limited to, software licensing, copyright licensing, printing, photography, colour printouts, laminating, illustrations, shipping and handling or courier service. Expenses are itemised on each invoice. Expenses are subject to GST.
5. Production Schedules
Production schedules will be established and adhered to by both the CLIENT and Going Square. Where production schedules are not adhered to by the CLIENT, final delivery date or dates will be adjusted accordingly. Any projects that lapses for a period greater than 12 weeks due to CLIENT delays will incur a restart fee of $AU300.00 before recommencing.
6. Provision of Service
6.1 Our provision of the Services is subject to you:
- Complying with Your Responsibilities as and when required by us; and
- Paying Fees to us in accordance with the Payment Terms.
Estimates are based on a reasonable time schedule, and may be revised to take into consideration the CLIENT’s requested “Priority Scheduling”. Requested priority schedules that require overtime and weekend work will be subject to 60% mark-up at an hourly rate. Overtime is defined as between 6.00pm – 9.00am ACDT Monday to Friday, all day Saturday, Sunday and public holidays, unless otherwise agreed.
8.1 The CLIENT agrees to pay Going Square in accordance with the terms specified in each proposal/estimate. The CLIENT will be required to pay 20-40% of the project cost before commencement of work. This is detailed in the CLIENT Proposal. Unless otherwise specified, all subsequent balances due are payable upon completion of key stages of the project.
8.2 If the CLIENT fails to pay any invoice, Going Square reserves the right to withdraw the website and associated materials or refuse completion and/or delivery of work until past due balances are paid. All materials or property belonging to the CLIENT, as well as work performed, may be retained as security until all just claims against the CLIENT are satisfied. Going Square will charge a late payment fee of 5% per month on the outstanding amount. The CLIENT is responsible for any debt collection fees which may come due.
8.3 In the event of cancellation of the project prior to completion, the CLIENT must pay Going Square a fee for work completed, based on the contract price and the expenses already incurred.
Going Square 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 fulfilment of this agreement, which is of a secret or confidential nature relating to the business, equipment, processes, products, services or business strategies offered or employed by the CLIENT.
This obligation of confidence will cease to apply in relation to information that Going Square is required to disclose by any law, or which becomes part of the public domain other than as the result of a breach by Going Square of its obligations of confidence under this Agreement.
Going Square reserves the right to assign subcontractors or external suppliers. Any subcontractors or external suppliers will be bound to the terms of this agreement.
Going Square is confident that the CLIENT’s expectations will be exceeded and as such is notifying the CLIENT that Going Square reserves the right to use the CLIENT’s website, associated graphics and any unused ideas and development in the promotion of Going Square services. The CLIENT agrees to allow Going Square to retain a credit and link from the footer of the website.
The CLIENT is responsible for all trademark, service-mark, copyright and patent infringement clearances. The CLIENT is also responsible for arranging, prior to publication, any necessary legal clearance of materials Going Square uses for this project. The CLIENT indemnifies Going Square against any loss or damage arising directly or indirectly from any unauthorised use of photographs, text, or other Intellectual Property not under copyright ownership of the CLIENT.
13. Project Copyright
13.1 After acceptance of the website and payment of all sums due by the CLIENT, Going Square agrees to assign perpetual and unrestricted copyright to use any materials produced by Going Square as outlined in this agreement to the CLIENT including exclusive usage rights to unique graphics.
13.2 Going Square reserves all rights over working and source files. The CLIENT does not have the right to resell, reuse or re-purpose any design or content supplied as part of this agreement unless specified.
13.3 Going Square reserves all rights to licence (open source) and release all software code including website templates developed under this agreement.
14. Open Source Software
14.1 Going Square makes extensive use of open source software and components to supply websites and services to the CLIENT. Going Square will not charge additional licensing fees on open source software.
14.2 The CLIENT indemnifies Going Square against any loss or damage arising directly or indirectly from any failure of software supplied to the CLIENT.
14.3 All software and components not developed by Going Square retain the original licence and terms associated with them. Going Square cannot assign any rights to the CLIENT and the CLIENT agrees to be bound by the original Author’s terms.
15. Force Majeure
Going Square shall not be deemed in breach of this Agreement if Going Square is unable to complete the Services or any portion thereof by reason of fire, earthquake, labour dispute, act of God, death, illness or incapacity of Going Square or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Going Square’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Going Square shall give notice to the CLIENT of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
16. Limitation of Liability
The services and the work product of Going Square are sold “as is.” In all circumstances, the maximum liability of its Designers, Directors, Officers, Employees, Design Agents and Affiliates (“Going Square parties”), to the CLIENT for damages for any and all causes whatsoever, and the CLIENT’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net cost of this project as specified in this Agreement. In no event shall Going Square be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by Going Square even if Going Square has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
Either party may terminate this Agreement by giving 30 days written notice to the other of such termination. In the event that work is postponed or terminated at the request of the CLIENT, Going Square shall have the right to bill pro-rata for work completed through to the date of that request, while reserving all rights under this Agreement.
If additional payment is due, this shall be payable within fourteen days of the CLIENT’s written notification to stop work. In the event of termination, the CLIENT shall also pay any expenses incurred by Going Square and Going Square shall own all rights to the work. The CLIENT shall assume responsibility for collection of all legal fees necessitated by default in payment.
18. Domain Names
18.1 All domain names are legally owned by the CLIENT. All domain name registrations are subject to availability and registration rules. The CLIENT manages their domain(s) and payment of fees unless the CLIENT requests in writing that Going Square manage the domain name(s) on behalf of the CLIENT. Going Square will invoice the CLIENT when fees are due.
18.2 Going Square uses various Domain Name Registration Companies (referred to as REGISTRAR) to manage our CLIENTS’s domain names. CLIENTS are bound by the REGISTRARS’s “Domain name registration terms” which are found on their respective websites
18.3 The CLIENT indemnifies Going Square against any loss or damage arising directly or indirectly from any failure of services provided by the REGISTRAR.
19.1 The CLIENT is responsible for contacting the chosen hosting provider (referred to as HOSTING PROVIDER) for support relating to hosting matters. Going Square will charge for costs incurred liaising with the HOSTING PROVIDER and supporting the CLIENT with hosting related issues.
19.2 Going Square will charge for costs incurred due to differences or changes in hosting environment if installation and management exceeds standard time frames.
20. Browser Variance
20. 1 Our websites are optimised for XHTML compliant browsers and adjusted to support Internet Explorer (IE). We test using the browsers that are statistically the most commonly used. Layout and aesthetic elements may change or degrade in some browsers. Websites are tested on:
- Internet Explorer version 10 (PC)
- Latest version of Firefox (PC)
- Latest version of Safari (PC)
- Latest version of Chrome (PC)
20.2 Going Square will test and optimise for additional browsers and versions if requested by the CLIENT before commencement of the project.
Website visitors use different monitors with different settings. Colours and image quality of the website including graphics and photography will shift between computers and monitors.
22. Testing and Acceptance of the Website
Once the project has, in the opinion of Going Square been completed, Going Square will notify the CLIENT either verbally or in writing, and provide the CLIENT with an opportunity to test and review the website. If the CLIENT determines that the website does not comply with the Project Components agreed to in this document, Going Square agrees to carry out any necessary and reasonable modifications without extra charge as outlined in Revisions.
23. Ongoing Management (see definition)
23.1 Ongoing Management is not included in this agreement and will require an additional agreement.
23.2 If The CLIENT does not proceed with an Ongoing Management agreement, The CLIENT is responsible for Ongoing Management of the website and indemnifies Going Square against any loss or damage arising directly or indirectly from website downtime or security breaches.
24. Client Responsibilities
If the CLIENT or an agent of the CLIENT other than Going Square attempts to update, edit or alter the site’s pages, infrastructure, source files or hosting management in a way that causes damage to individual pages or the site’s architecture, time to repair web pages will be assessed at our STANDARD or OVERTIME hourly rate, and is an additional cost above the costs outlined in this agreement.
25. Errors and Omissions
It is Going Square’s responsibility to check carefully for accuracy in all respects, ranging from spelling to technical illustrations. However Going Square is not liable for errors or omissions. The CLIENT indemnifies Going Square against any loss or damage arising directly or indirectly from any errors and omissions.
Going Square will provide two rounds of revisions of content after the submission of the content, before the website is completed. Extended revisions outside of this scope will be charged at our STANDARD or OVERTIME rates.
All text must be supplied in digital format (either: TXT, RTF, HTML, MS Word, Open Office, InDesign).
Graphics and photographs are to be supplied in digital format to Going Square. Photographs must not exceed a file size of 5mb each (unless by prior arrangement). Larger files will incur an extra cost due to increased time in processing.
All logos and branding must be provided in an industry standard vector format (preferences are: EPS, PDF, Illustrator).