THIS WEBSITE DEVELOPMENT AGREEMENT (this “Agreement”) dated the date as stated in Item 1.0 of Schedule 1 hereof, is made between the party as stated in Item 2.0 of Schedule 1 hereof (the “Client”) and the party as stated in Item 3 of Schedule 1 hereof (the “Service Provider”) of the Statement(s) of Work (the “Statement(s) of Work”).
A. The Client is as stated in item 2.0 of Schedule 1 hereof the Statement(s) of Work (the “Statement(s) of Work”).
B. The Service Provider is in the business of providing WordPress Website Development and Internet Marketing Services.
C. The Client is desirous of engaging the Service Provider to provide Website Development Services for the Client and the Service Provider agrees to perform such services mentioned herein, on the terms and subject to the conditions set forth herein the Statement(s) of Work (the “Statement(s) of Work”).
D. The Service Provider and the Client agree that this Agreement shall apply to the provisions of all and any other executed Statement(s) of Work between the parties.
NOW THEREFORE IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
In this Agreement, unless inconsistent with the subject or the context, the following words and expressions shall have the following meanings:
“Agreement” means this Agreement including all schedules and appendices, and includes any variation, amendments or supplement as mutually agreed by the parties from time to time;
“Confidential Information” means any and all information, whether in oral, written, graphic or electronic form, provided to the receiving party hereto, including but not limited to patent applications, ideas, samples, media, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, algorithms, website source documents, and formulae related to the current, future, and proposed products and services of such party, information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, customers lists, pricing, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans, information the disclosing party provides regarding third parties and any third party proprietary information rightfully held and disclosed by the disclosing party or information by its nature or circumstances surrounding its disclosure should be reasonably regarded as confidential;
“Client” means the party as stated in item 2.0 of Schedule 1 hereof the Statement(s) of Work (the “Statement(s) of Work”) and shall include its permitted assigns and successors in title;
“Client’s Representative” means the person or body corporate authorized from time to time by the Client for the purpose of or in connection with this Agreement and notified in writing to the Service Provider;
“Deliverables” means any deliverables produced in conjunction with this Agreement and any Statement(s) of Work by the Service Provider, including without limitation, the website, documentation, source code, and modifications to the foregoing, and all portions thereof;
“Fees” means the fees payable as stated in item 12.0 of Schedule 1 hereof the Statement(s) of Work (the “Statement(s) of Work”) in AU dollars payable to the Service Provider for the Services rendered as stipulated in the Statement(s) of Work;
“Service Provider” means the party as stated in item 3.0 of Schedule 1 hereof the Statement(s) of Work (the “Statement(s) of Work”) and shall include its permitted assigns and successors in title;
“Services” means the services to be rendered by the Service Provider as described in the Statement(s) of Work;
“Statement(s) of Work” means the statement(s) of work substantially in the form as set out in Appendix A hereof the Statement(s) of Work (the “Statement(s) of Work”) which upon acceptance as stated in item 15.0 of Schedule 1 hereof the Statement(s) of Work (the “Statement(s) of Work”) by The Client shall form an integral part of this Agreement and may include one (1) or more of such Statement(s) of Work (the “Statement(s) of Work”); and
“Term” means the term of this Agreement, commencing and expiring on the dates as stated in Item 11.0 of Schedule 1 hereof the Statement(s) of Work (the “Statement(s) of Work”), unless earlier terminated in accordance with the provisions of this Agreement.
In this Agreement, unless there is something in the subject or context inconsistent with such construction or unless it is otherwise expressly provided:-
(a) words importing the masculine gender shall include the feminine and neuter genders and vice versa;
(b) words in the singular number shall include the plural number and vice versa;
(c) references to Clauses are to be construed as references to Clauses of this Agreement;
(d) references to the provisions of any legislation shall include references to any statutory modification and re-enactment thereof;
(e) words applicable to natural persons shall include any body of persons, company, corporation, firm or partnership corporate or unincorporate and vice versa;
(f) the schedules and appendices annexed hereto and executed Statements of Work shall form an integral part of this Agreement;
(g) the headings of each of the provisions herein contained are inserted merely for convenience of reference and shall be ignored in the interpretation of the provisions herein; and
(h) any reference to “approval”, “consent” or “notice” shall mean approval, consent or notice in writing.
2. APPOINTMENT AND SCOPE OF AGREEMENT
The Client hereby appoints the Service Provider and the Service Provider hereby agrees to perform the Services for the Client as described in one or more Statement(s) of Work (the “Statement(s) of Work”), the form of which is attached hereto as Appendix A (the “Services”). The Statement(s) of Work shall be executed by the parties at least one (1) month before commencement of the provision of the Services stated therein unless agreed otherwise by the parties.
2.2 Provision of Services
The Service Provider shall provide the Services as an independent contractor in a proper and businesslike manner, and to the best advantage and in the best interests of the Client.
2.3 Conflict with Statement(s) of Work
In the event of any conflict or inconsistency between the provisions of this Agreement and any executed Statement(s) of Work, the executed Statement(s) of Works shall prevail and shall be deemed to be the basis of any authorisation by the Client.
This Agreement shall commence and expire on the dates as stated in Item 11.0 of Schedule 1 hereof, unless otherwise extended by mutual agreement of the parties hereto or terminated in accordance with the terms set forth in this Agreement.
In consideration of the Services rendered to the Client by the Service Provider, the Client shall pay the Service Provider fees in AU dollars at the rate stated in Item 12.0 of Schedule 1 hereof the Statement(s) of Work (the “Fees”). Provided Always that the total Fees payable to the Service Provider shall not exceed the sum in the Statement(s) of Work executed by the parties.
4.2.1 The Service Provider shall submit invoices to the Client in respect of the payment by the Client for the Services rendered pursuant to each Statement of Work upon completion of the Services in accordance with the particular milestone or a predefined period as stipulated in The Payment Schedule as stated in Item 13.0 of Section 1 therein the Statement(s) of Work (the “Payment Schedule”).
4.2.2 If the Client wishes to dispute or query any invoice from the Service Provider, notice of such a dispute must be given to the Service Provider, specifying details of the dispute or query, within fifteen (15) days after the date of receipt of the relevant invoice failing which the Client shall be deemed to have agreed with the fees stated in the invoice.
4.2.3 The Fees shall be inclusive of all disbursements incurred by the Service Provider in the provision of the Services pursuant to the Statement(s) of Work.
4.3.1 All sums payable under this Agreement are exclusive of any GST or withholding tax and all other taxes (including personal income tax), duties and levies payable under the laws of Australia or other relevant law and shall be made subject to deduction or withholding of such taxes, if applicable.
4.3.2 For the avoidance of doubt, all withholding tax and all other taxes (including personal income tax), duties and levies arising from this Agreement shall be borne by the appropriate parties.
5. UNDERTAKINGS OF THE SERVICE PROVIDER
The Service Provider warrants and undertakes that throughout the term of this Agreement:-
(a) it is authorised to enter into this Agreement and to perform its obligations hereunder, and that its performance hereunder shall not conflict with, be limited by, or be contrary to any other agreement, regulations or laws;
(b) it shall perform the Services in a professional manner with reasonable care and skill and shall depute resources that are qualified and experienced professional personnel and it shall adopt standards of sound principles and techniques in the information technology industry;
(c) the disclosure and delivery of any information, documents, website and other materials, and use thereof, as contemplated by this Agreement, will not infringe or violate any proprietary right of any third party, including, without limitation, any copyright, patent or trade secret right.
5.2 Mock-Ups & Change Requests
The Service Provider shall prepare and submit progress development versions to the Client in accordance within a predefined period as stipulated in The “Mock-ups and Change Requests” Item 9.0 of Section 1 therein the Statement(s) of Work (the “Mock-ups and Change Requests”). In addition, the Client shall be entitled to unlimited change requests of V1.0.0, V1.1.0 and V1.1.1 prior to the final development version 1.1.1 being “Tested” and “Rolled Out” into production by the Service Provider to the Client.
6. UNDERTAKINGS OF THE CLIENT
6.1.1 The Client shall provide reasonable assistance to the Service Provider in the performance of its obligations under this Agreement as stipulated in the “Project Start” Item 7.0 of Schedule 1 therein the Statement(s) of Work (the “Project Start”).
6.1.2 The Client shall provide content by way of Completing The Service Providers Launch Form, Locking down The Service Providers Statement(s) of Work Order and by Submitting Content (such as Images and Website Copy) by no later than the “Due Date” as stipulated in “The Project Start” Item(s) 7.0 to 7.3 of Schedule 1 therein the Statement(s) of Work (the “Project Start”) as may be reasonably required by the Service Provider to facilitate the Fulfillment of their Website Development Service.
6.2 Client’s Representative
6.2.1 The Client shall make available to the Service Provider a Project Manager (the “Client’s Representative”) as per Item 15.1 Schedule 1 for each Statement(s) of Work (“Acceptance”) who shall be notified to the Service Provider by the Client in writing as stipulated within the Statement(s) of Work (“Acceptance”) Item 15.0 Schedule 1 therein the Statement(s) of Work.
6.2.2 The Client’s Representative shall seek the necessary authorisations of the Client in relation to the Service Provider’s performance of the Agreement and shall be authorised to review all copy, images and other documents or files submitted by the Service Provider, request necessary corrections, and approve such documents or files; provide requested information and data; and advise the Service Provider of the Client’s change requests.
6.2.3 The Client understands that the Service Provider shall rely upon the Client’s Representative as having the authority specified in this Clause and that all communications from the Service Provider to Client shall be addressed to the Client’s Representative.
7. INTELLECTUAL PROPERTY
The entire right, title and interest in and to any deliverables produced in conjunction with this Agreement and any applicable Statement(s) of Work, including without limitation, the website, documentation, source code, and modifications to the foregoing, and all portions thereof (the “Deliverables”), together with all proprietary rights relating thereto, including, without limitation, all copyrights, patent and trade secret rights is owned by the Client. The Service Provider will make one set of the website application developed and deliver the same to the client for safe retention. All subsequent changes/development will be immediately reflected in the copy retained by the Client.
7.2 The Client’s Right
The Service Provider will fully indemnify the Client against all claims, demands and liabilities incurred by the Client if the Deliverables or any part thereof infringes the copyright, trade secrets, patent, trademarks and other intellectual property rights of any third party provided that the Client:
(a) notifies the Service Provider in writing as soon as practicable of any infringement, suspected infringement or alleged infringement upon the Client becoming aware of such infringement;
(b) gives the Service Provider the option to conduct the defence of such claim, including negotiations for settlement or compromise prior to the institution of any legal proceedings thereof at the expense of the Service Provider;
(c) provides the Service Provider with reasonable assistance in conducting the defence of such claim;
(d) permits the Service Provider to modify, alter or replace any component or parts thereof of the Deliverables, at its own expense, to remedy the infringement; and
(e) authorises the Service Provider to procure for the Client the authority to continue to use and possess such parts of the Deliverables found to be infringing any third party’s rights.
8.1 Settlement by Project Manager
The parties agree that any disputes or claim between the parties shall be settled amicably through negotiation.
8.2 Independent Expert
If the parties fail to reach an amicable resolution within fourteen (14) days of such other period as the parties may mutually agree, such dispute or claims shall be referred to a single Arbitrator to be agreed upon by the parties hereto in accordance with and subject to the provision of the Arbitration Act of Queensland 2013 or any statutory modification or re-enactment thereof for the time being in force who shall conduct arbitration proceedings in the English Language according to the arbitration rules of the International Chamber of Commerce. During such arbitration, both parties may be represented by a duly qualified legal practitioner.
8.3 Decision Final And Binding
The decision and award of the independent expert (in the absence of manifest error) shall be final and binding and the award so rendered may be entered in any court having jurisdiction thereof. The independent expert will have no authority to award punitive or other non-compensatory damages to either party. Nothing herein contained shall bar the right of either party to obtain equitable relief from a court of law or equity with regard to a claim under Clause 11 (Confidentiality Information). The cost of the application to the independent expert shall be borne by the party to the application against whom the independent expert finds or in such other proportion as the independent expert may determine.
8.4 No Waiver
The reference of any matter, dispute or claim to an independent expert shall in no way operate as a waiver of the obligations of the Parties to perform their other respective obligations under this Agreement.
Either party may forthwith terminate this Agreement or any Statement(s) of Work if the other party:-
(a) shall have an order made against it or a resolution is passed for its winding up except for the purposes of reconstruction or amalgamation not involving the realisation of assets in which the interest of creditors are protected; or
(b) goes into liquidation or a receiver is appointed over its assets or the other party makes an assignment for the benefit of or enters into an arrangement or composition with its creditors or stops payment or is unable to pay its debts; or
(c) execution is levied against a substantial portion of its assets, unless it has instituted proceedings in good faith to set aside such execution.
9.2 Cooling Off Period
Either party may terminate this Agreement or any Statement(s) of Work prior to “The Cooling off Period End Date” as stipulated in “The Cooling off Period End Date” Item 8.0 of Schedule 1 therein the Statement(s) of Work (the “The Cooling off Period”). Should The Agreement or Statement(s) of Work be terminated prior “The Cooling off Period End Date” the Client is entitled to a refund of “Fees Paid” as per Item 13.1 of Section 1 therein the Statement(s) of Work (the “Payment Schedule”).
In the absence of any breach of the terms or provisions of this Agreement or any Statement(s) of Works, either party may terminate this Agreement prior to “The Cooling off Period End Date” as stipulated in “The Cooling off Period End Date” Item 8.0 of Schedule 1 therein the Statement(s) of Work (the “The Cooling off Period”). Notice of termination to be sent via email to the nominated email address as set out in Item’s 2.2 and 3.3 of Schedule 1 of the Statement(s) of Work (the “The Client & The Service Provider”).
9.4 Consequences of Termination by the Client
In the event that this Agreement or any Statement(s) of Work is terminated by the Client “AFTER” “The Cooling off Period End Date” as stipulated in “The Cooling off Period End Date” Item 8.0 of Schedule 1:-
(a) the Client shall pay to the Service Provider all amounts owed to the Service Provider as stipulated in “Fee’s Payable” Item 12.0 of Schedule 1 therein the Statement(s) of Work (the “Fee’s Payable”) as per the “Payment Schedule” Item 13.0 of Schedule 1 therein the Statement(s) of Work (the “Payment Schedule”);
(b) the Service Provider shall immediately cease providing the Services;
(c) the Service Provider shall hand-over to the Client any Deliverables produced in conjunction with this Agreement and as stipulated in “Project Start” Item 7.0 of Schedule 1 therein the Statement(s) of Work (the “Project Start”);
9.5 Consequences of Termination by the Service Provider
In the event that this Agreement or any Statement(s) of Work is terminated by the Service Provider AFTER “The Cooling off Period End Date” as stipulated in “The Cooling off Period End Date” Item 8.0 of Schedule 1, the Service Provider shall:-
(a) not be entitled to “Outstanding Fees” as stipulated in the “Payment Schedule” Item 13.2 of Schedule 1 therein the Statement(s) of Work (the “Payment Schedule”);
(b) immediately cease providing the Services; and
(c) hand-over to the Client any Deliverables produced in conjunction with this Agreement and any applicable Statement(s) of Work and the Client shall be entitled to utilise the Completed Deliverables in any manner whatsoever for its own benefit.
9.6 Consequences of Termination by Notice
In the event that this Agreement or any Statement(s) of Work is terminated by either party by notice in accordance with Clause 9.3 (Notice), the following shall apply:-
(a) the Client shall immediately forfeit Fees already paid as set out in Item 13.1 of Schedule 1 Statement(s) of Work (the “Payment Schedule”); and
(b) the Service Provider shall hand-over to the Client any partially completed Deliverables produced in conjunction with this Agreement and any applicable Statement(s) of Work and the Client shall be entitled to utilize the Deliverables in any manner whatsoever for its own benefit, and neither party shall have any claims against the other save an except for antecedent breaches.
The Service Provider shall be liable for and shall indemnify the Client against any liability, damage, loss, claim or proceedings howsoever arising in respect of personal injury or death to any person whomsoever, whether an employee of the Client or otherwise, or in respect of injury or damage to any moveable or immovable property, whether owned by the Client or otherwise, which occurs during the provision of the Services due to any failure, negligence, omission, default or willful misconduct of the Service Provider, its employees, agents or contractors.
11. CONFIDENTIAL INFORMATION
11.1 Duty of Confidentiality
Each party undertakes in respect of Confidential Information for which it is the recipient:-
(a) to treat such Confidential Information and any analyses, compilations, studies or other documents prepared by the recipient party on the basis of or derived from the Confidential Information as confidential;
(b) not without the disclosing party’s prior written approval to communicate or disclose any part of such Confidential Information to any person except only to those employees, agents, sub-contractors, suppliers and other persons on a need to know basis who are directly involved in the provision of the Services;
(c) to ensure that all persons and bodies mentioned in the above are made aware, prior to disclosure of the confidential nature of the Confidential Information and that they owe a duty of confidence to the disclosing party and to use all reasonable endeavors to ensure that such persons and bodies comply with the provisions of this Clause; and
(d) not to use or circulate such Confidential Information within its own organisation except to the extent necessary for the purposes of providing the Services to the Client.
11.2 Not Applicable
The obligations in this Clause will not apply to any Confidential Information:-
(a) in the recipient’s possession (with full right to disclose) before receiving it from the disclosing party; or
(b) which is or becomes public knowledge other than by breach of this Clause; or
(c) is independently developed by the recipient without access to or use of the Confidential Information; or
(d) is lawfully received from a third party (with full right to disclose).
11.3 Authorized Disclosure
It is hereby agreed that notwithstanding the provisions of this Clause, the parties are permitted to disclose the contents of this Agreement to the extent required by law and /or any announcement or disclosures that it is required to comply with under any applicable law or requirement of any regulatory body including any relevant stock exchange on which the equity shares of such party or its holding company are listed.
11.4 Return of Confidential Information
Upon completion or earlier termination of this Agreement or any of the Statement(s) of Work or at any time upon request of the disclosing party, the recipient party shall promptly cease all use of and destroy or return all Confidential Information to the disclosing party together with all copies, reproductions, abstracts or portions thereof and/or any analyses, compilations, studies or other documents prepared by the recipient party on the basis of or derived there from. If required, the recipient party will provide the disclosing party with written confirmation that all Confidential Information and any copies, reproductions, abstracts or portions thereof and/or any analyses, compilations, studies or other documents prepared by the recipient party on the basis of or derived therefrom have been destroyed or returned to the disclosing party and that no Confidential Information and/or any copies or reproductions thereof and/or any analyses, compilations, studies or other documents prepared by the recipient party on the basis of or derived therefrom have been retained by the recipient party.
11.5 Injunctive Relief
Each party acknowledges the confidential nature of the Confidential Information and that damage could result to the disclosing party if any part of the Confidential Information is disclosed to any third party or used by the recipient party in breach of the obligations contained herein. Each party further acknowledges that damages alone would not be an adequate remedy for any breach of this Clause and that the disclosing party shall be entitled to equitable relief including injunction in the event of any breach of the provisions of this Clause and the recipient party shall not oppose the granting of such relief.
11.6 Continuous Effect
This Clause will continue in force notwithstanding the expiry or termination of this Agreement or any of the Statement(s) of Work for any reason.
12. GENERAL PROVISIONS
Any notice, approval, consent, request or other communication required or permitted to be given or made under this Agreement shall be by email in the English language and delivered to the nominated email address of the Client or the Service Provider, as the case may be, as stated in Item 1 and Item 2 respectively of Schedule 1 hereof, or to any such other email addresses as any party may have notified the other party and shall be deemed to be duly given or made, in the case of delivery to an email address, when delivered to the recipient at a nominated email address which is duly tracked, opened and acknowledged.
12.2 Force Majeure
Neither party shall be responsible for any failure to perform or delay in performing any of its obligations under this Agreement where and to the extent that such a failure or delay results from causes outside the control of such party. Such causes shall include, without limitation, acts of God or of the public enemy, acts of the government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, freight embargoes, strikes, civil commotion, or the like.
Each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. The invalidity or unenforceability of any provision of this Agreement shall in no way affect the validity or enforceability of any other provision hereof. Any invalid or unenforceable provision shall be deemed severed from this Agreement and the remaining provisions of this Agreement shall be construed and enforced as if this Agreement did not contain the particular provision held to be invalid or unenforceable.
The waiver of a breach of this Agreement or the failure of a party to exercise any right under this Agreement shall in no event constitute a waiver as to any other breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement.
The Client recognizes that the Service Provider providing Services to the Client under this Agreement may perform similar services from time to time for other organisations, and this Agreement shall not prevent the Service Provider from performing similar services for such other organisations Provided Always that the provision of such similar services will not affect in any way the obligations of the Service Provider under this Agreement and the Statement(s) of Work.
12.6 Independent Contractor
For all purposes hereof and in the performance of its obligations under this Agreement, the Service Provider is and shall remain an independent contractor and nothing in this Agreement or any of the Statement(s) of Work shall be deemed or construed to create an employer/employee, joint venture or partnership relationship between the Service Provider and the Client. Nothing herein shall be deemed or construed to create an employment relationship between the Client and any employee, servant, agent or independent contractor of the Service Provider. Neither party shall have any authority to insure any obligations on behalf of the other party or to make any promise, representation or contract of any nature on behalf of the other party.
During the term of this Agreement and for a period of one (1) year thereafter, neither party shall (either directly or indirectly through a third party) solicit for employment, employ, contract with, nor engage the services of, or solicit business from, or otherwise retain, any employees or sub-contractors of the other party who have been directly involved in the activities covered by this Agreement, without the written consent of the other party.
12.8 Provision of Documents
The Client or the Service Provider as the case may be, shall promptly provide the other with all documents reasonably requested for the purposes of or in connection with the provision of the Services.
No modification, variation or amendment of this Agreement, the Schedules or the Appendices hereof shall have any legal effect and force unless such modification, variation or amendment is in writing and executed by the Parties.
12.10 Time is of the Essence
The parties hereto agree that time, whenever mentioned, shall be of the essence of this Agreement.
12.11 Costs and Stamp Duties
All legal costs towards the preparation and completion of this Agreement shall be borne by each party. In addition the Service Provider shall bear any costs of stamp duties payable on this Agreement.
Neither party shall be entitled to assign, sub-contract, sub-license or otherwise transfer its rights or obligations hereunder without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed) except that either party shall be entitled to assign the benefit of this Agreement for the purpose of solvent amalgamation or re-organisation of its business.
12.13 Successors Bound
This Agreement shall be binding upon each of the parties hereto and their respective successors in title and permitted assigns.
12.14 Governing Law
This Agreement shall be subject to the laws of Queensland, Australia.
12.15 Entire Agreement
This Agreement and the Statement(s) of Work supersedes all prior oral or written representations, communications, or agreements between the parties and, together with any appendices, constitutes the final and entire understanding of the parties regarding the subject matter of this Agreement. Neither party has relied on any such prior oral or written representations, communications, or agreements.
The Client agrees this Agreement may be executed by “Clickwrap Acceptance” (also known as a “Clickthrough” Agreement or “Clickwrap License”) acceptance. All of such counterparts taken together shall be deemed to constitute one and the same instrument, and (if by “Clickwrap” acceptance) shall have the same force and effect as if a hand signed signature on an original Agreement. The Service Provider requires The Client to manifest his or her assent by clicking an “OK” or “AGREE” button on a dialog box or pop-up window before purchasing the service. The Client can indicate a rejection by “CLOSING THE BROWSER” when asked to click “OK” or “AGREE” before making “The Payment”.