QUANTUM WEB SOLUTIONS PTY LIMITED ACN 149 024 466 is a website design and build company located at Suite 1C, 55 Mentmore Ave, Rosebery, NSW, 2018 (QWS). QWS provides website design, development and digital marketing services to the Client on the following terms and conditions.
Last updated: 18th October 2026
1.1 The Agreement between QWS and the Client is comprised of the Quote, these Terms & Conditions, any service-specific terms that apply to the Services, and, where one is in place, the Data Processing Agreement.
1.2 The Client wishes to obtain Services provided by QWS as set out in the Quote. In consideration of the Client complying with these Terms & Conditions QWS agrees to provide the Services to the Client.
1.3 QWS reserves the right to use the services of third party providers in the delivery of the Services.
1.4 Where QWS issues or publishes terms specific to a particular service, including digital marketing services, those terms form part of the Agreement for that service and apply in addition to these Terms. To the extent of any inconsistency, the following order of precedence applies: the Data Processing Agreement (on matters relating to the handling of Personal Information), then the Quote (as to scope, fees, payment and timing), then service-specific terms, then these Terms. This clause does not apply to the policies and statements described in clause 23.16.
Agreement means these Terms & Conditions, the Quote, any service-specific terms that apply to the Services, and where one is in place, the Data Processing Agreement.
Approval means the Client’s approval given in accordance with clause 8.
Business Days means any day being a Monday, Tuesday, Wednesday, Thursday or Friday excluding public holidays in the State of New South Wales.
Claim means any claim, action, demand, suit, proceeding, liability, compensation, damages, remedy, reimbursement or costs, whether at common law, in equity or under statute.
Client means the person or entity named as the client in the Quote.
Client Materials means any Materials supplied to QWS by the Client or on the Client’s behalf, including under clause 3.
Client’s Personnel means the Client’s officers, employees, agents and contractors, and any third party engaged by the Client in connection with the Services.
Commencement Date means the date on which the Client accepts the Quote or QWS begins providing the Services, whichever is earlier.
Confidential Information means all information that is confidential or proprietary or relates to the business or assets of the parties and is not generally known by the public.
Content Management System (CMS) means a computer software program which is used to organise text, images, data and files for the Website from a central interface. CMSs are often used to run websites containing blogs, news, and shopping. CMSs typically aim to avoid the need for hand coding but may support it for specific elements or entire pages.
AI Tools means any artificial intelligence or machine learning model, system, service or application used by QWS in performing the Services or the Managed Services, whether operated by QWS or by a third party.
AI Services means services performed by QWS using AI Tools, including AI-assisted content generation, analysis, automation, development and data processing.
Deposit means the deposit specified in the Quote, being not less than 50% of the total value of the Services unless the Quote provides otherwise.
Data Processing Agreement means QWS’s data processing agreement with the Client, as agreed between the parties from time to time.
Personal Information has the meaning given in the Privacy Act 1988 (Cth).
Intellectual Property Rights means copyright, trade mark, design, patent, semiconductor or circuit layout rights relevant to, inter alia:
(a) the design, layout and graphical material displayed on the Website;
(b) the user interface of the Website, including but not limited to screens, organisation, and operation or control features; and
(c) all computer software associated with the Website.
Force Majeure means a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to:
(a) acts of God, lightning strikes, earthquakes, floods, storms, explosions, epidemics, pandemics, fires and any natural disaster;
(b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution;
(c) strikes, lockouts or other industrial disputes; and
(d) failure or interruption of a third party platform, telecommunications service or power supply, other than where caused by the party claiming Force Majeure.
Insolvency Administration, in relation to a party, means any of the following events:
(a) the party ceases to (or is unable to) pay its creditors (or any class of them) in the ordinary course of business, or announces its intention to do so;
(b) a receiver, receiver and manager, administrator, liquidator or similar officer is appointed to that party;
(c) such party enters into, or resolves to enter into, a scheme of arrangement, compromise or composition with any class of creditors;
(d) a resolution is passed or an application to a court is taken for the winding up, dissolution, official management or administration of that party; or
(e) anything having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction.
Managed Services means an engagement in which QWS hosts, manages, configures or administers infrastructure for the Client, or processes Client data on an ongoing basis, whether that infrastructure is operated by QWS, by the Client or by a third party. Clause 27 applies to Managed Services engagements.
Materials means any textual, graphical, audio or like materials together with any information, data, computer programs, computer software, applications, hardware, and any materials required by QWS to provide the Services to the Client.
Project Brief means the information the Client provides to QWS in the form required by QWS, including specifications and details of the Services and the completed brief form provided under clause 6.
Party means QWS or the Client, and Parties means both of them.
QWS Tools means the proprietary computer software tools used by QWS to supply the Services under this Agreement.
Quote means the quote, proposal, statement of work or services agreement issued by QWS to the Client for the Services and accepted by the Client, whatever it is titled, together with any replacement or revised version agreed under clause 7.
Services means the services related to the design, development and limited maintenance of the Website, and any digital marketing services, provided to the Client in accordance with the Project Brief, but does not include Web Hosting or creation or maintenance of a CMS. Where a Managed Services engagement is in place, references to the Services in clauses 14 to 20 and 25 include the Managed Services.
User means a person other than the parties who seeks access to the Website over the internet.
Website Design means the design, layout and artistic and graphical material displayed on the Website.
Web Hosting means the provision of services, hardware and software for websites, including the storage and maintenance of site files on a server.
Website means the website created by QWS for the Client under this Agreement.
3.1 The Client will provide information and make available any Materials that QWS may reasonably require in a form suitable for QWS to perform the Services.
3.2 QWS shall not be liable for any delay in the performance of the Services if caused by the Client’s delay in providing Materials as requested by QWS.
3.3 The Client will discuss, meet with or be available for consultation with QWS on a regular basis in relation to the provision of the Services.
3.4 Where the provision of Services is conditional on the Client providing the Materials, instructions or approvals within specified timeframes and if the Client does not provide the Materials, instructions or approvals within those specified timeframes or changes or updates Materials or instructions after QWS has used them (including incorporating website content, text and images into the Client’s website), QWS reserves the right to revise costs and to submit a new Quote to the Client for approval.
4.1 The prices set out in the Quote are valid for acceptance within 30 days from the date specified in the Quote. The Quote may be amended unless it is accepted and the Deposit paid by the Client before the end of the 30 day period.
4.2 The Client agrees that the fees set out in the Quote are valid for 6 months after the date it is accepted by the Client. The Client acknowledges that, after those 6 months, QWS may review the fees and the fees charged for the Services may increase.
4.3 Unless the Quote provides otherwise, upon entering into this Agreement the Client must pay to QWS a deposit of at least 50% of the total value of Services as set out in the Quote.
4.3A The Deposit is non-refundable. By paying the Deposit, the Client acknowledges and agrees that:
a. the Deposit secures QWS’s commitment to perform the Services and reserves capacity in QWS’s schedule for the Client’s project;
b. subject to paragraph c, QWS will retain the Deposit in full on termination, suspension, cancellation, discontinuance or delay of the Services by the Client (whether under clause 14.2 or otherwise), or on termination by QWS under clause 14.1, regardless of the value of work performed by QWS at the time;
c. where the value of Fees, Incidentals and committed costs payable under clause 14.3 exceeds the Deposit, the Client remains liable to pay the balance to QWS;
d. where the value of Fees, Incidentals and committed costs payable under clause 14.3 is less than the Deposit, QWS is not required to refund any part of the Deposit to the Client; and
e. the Deposit represents a genuine pre-estimate of QWS’s loss and a reasonable compensation for QWS’s commitment of resources and capacity to the Client’s project, and is not a penalty.
4.3B The Client acknowledges that, on acceptance of a Quote and payment of the Deposit:
a. QWS allocates time, personnel and capacity in its schedule to perform the Services for the Client;
b. that allocation prevents QWS from accepting, scheduling or performing other work that would otherwise occupy that time and capacity;
c. if the Services are subsequently cancelled, terminated, suspended, delayed or reduced in scope by the Client, the allocated time and capacity cannot reasonably be backfilled with replacement work on short notice, and QWS will suffer a loss of opportunity and revenue as a result; and
d. the non-refundability of the Deposit under clause 4.3A reflects, in part, compensation for this loss of opportunity and the disruption to QWS’s scheduling and resource planning.
4.4 Unless the Quote provides otherwise, and without limiting any other provision in this Agreement:
a. a further 30% of the total value of Services as set out in the Quote and any changes, variations or amendments is payable on the Client’s Approval of the draft Website Design, and
b. the balance of the total amount payable under the Quote, plus the costs of any variations or amendments and other charges under these Terms & Conditions is due and must be paid in full before delivery of the Website (including the final Website Design in any form) and before the uploading of live sites.
4.5 The Quote pricing includes fees for the Services only. Any and all other costs incurred in connection with the provision of the Services including but not limited to courier fees, photographers costs and fees, equipment hire, licenses to use access and use images or artwork or music, purchase of third party Materials, travel expenses and other incidental costs of providing the Services will be payable by the Client at the time any such costs are incurred.
4.6 Notwithstanding the above provisions, QWS reserves the right to render an invoice to the Client at any time for amounts payable pursuant to:
a. clause 7 of this Agreement for Changes or Substantial Changes requested by the Client, or
b. clause 14.3 for work done prior to suspension or termination of the Services.
4.7 The Client agrees that any payments outstanding will incur interest calculated at the then RBA Cash rate plus 4% calculated daily and accumulating until payment is received in full by QWS.
4.8 If action, including legal proceedings, is necessary to enforce payment under this Agreement, the Client agrees it will pay all QWS’s costs and expenses of and incidental to the recovery of monies due to QWS.
5.1 The prices set out in the Quote, unless otherwise stated, do not include Goods and Services Tax, which must be added to the price and paid by the Client as part of the fee.
6.1 QWS will provide the Client with a brief form within five Business Days of the date of this Agreement. QWS may provide the brief form in any reasonable manner, including by email or as an online form.
6.2 The Client must complete and return the brief form within 21 Business Days of receiving it. The information the Client provides must be sufficiently detailed to allow QWS to commence work on the Services.
6.3 Where the completed brief form is not sufficiently detailed, QWS may request further information or clarification from the Client, and the Client must provide it within a reasonable time.
6.4 If the Client does not comply with clause 6.2 or 6.3, QWS reserves the right to review the fees in the Quote. If a revised Quote is provided to the Client, work will not commence on the Services until QWS receives the revised Quote signed by the Client.
7.1 The Client agrees it will pay additional fees for changes requested by the Client which are outside the scope of the Quote or Project Brief (Changes) on a time and materials basis. Such fees will be payable in addition to all other amounts payable under the Quote.
7.2 QWS may require the Client to complete a Quote Change Request Form before QWS will commence work on any of the Changes.
7.3 QWS may extend or modify any delivery schedule or deadlines advised to the Client as may be required by the Changes.
7.4 If the Client requests or instructs QWS to make Changes that amount to a revision in excess of thirty-five percent of the time required to provide any Service listed in the Quote as determined by QWS at its complete discretion (Substantial Change), QWS may submit a new Quote and delivery schedule to the Client for approval. Work will not commence on the revised services until a revised Quote is signed by the Client and provided to QWS. If agreement cannot be reached in respect of a new Quote, the parties may continue to use the most recent agreed version of the Quote or resolve the disagreement in accordance with clause 21.
7.5 If the Client’s Project Brief or specifications change or the Client provides Materials after work has commenced on the Services that require additional functionality or cause QWS to redo or substantially change work already completed, it will be considered to be a Change or Substantial Change, as the case may be.
7.6 If a new Quote is agreed between the Parties, then any earlier agreed Quote will be severed from this Agreement, the new Quote will form part of this Agreement and will have no effect on the validity and enforceability of these Terms & Conditions.
7.7 The Client must notify QWS in writing, prior to accepting the Quote, of any internal policies, regulatory requirements or other constraints that restrict or prohibit the use of particular AI Tools or AI Services in connection with the Services.
7.8 If, after the Client has accepted the Quote, the Client:
a. introduces new restrictions on the use of AI Tools or AI Services;
b. requires QWS to avoid or cease using particular AI Tools or providers; or
c. otherwise changes its requirements in relation to AI,
then this will constitute a Change or Substantial Change (as applicable) and QWS may revise the fees, delivery schedule and/or approach in accordance with clause 7.3 and 7.4.
8.1 Where QWS gives a Website Design or Website or other Materials to the Client for review, testing or approval, the Client will within five Business Days notify QWS in writing of any failure of the Website Design or Website or other Materials to meet the specifications under this Agreement or of any defects, issues or matters of concern to the Client. Any such written notice shall be sufficient to clearly identify any objection, correction, change or amendment. In the absence of such written notice from the Client, the relevant Website Design, Website or Material shall be deemed to have been accepted by the Client.
9.1 QWS retains all rights and title in and to artwork, images and photos created or photographed or produced by QWS including all rights to display, use or sell such artwork, images and photos.
9.2 The Client grants to QWS a non-exclusive, non-transferable licence to use any and all images, photos, artwork and trademarks provided by the Client to QWS to perform the services. The Client will at the time of providing those materials to QWS, inform QWS in writing of any restrictions that apply to the use of those materials.
9.3 Images will be used in the form they are provided to QWS. If the Client requests images, photos, artwork or filenames to be edited, amended or changed, such work will be charged to the Client on a time and materials basis.
10.1 QWS will inform the Client of all third party Materials that may be required to perform the Services and of any need to licence at the Client’s expense. If the Client instructs QWS to use third party Materials, the Client will obtain the necessary licences to permit the Client and QWS to use the third party Materials consistent with the usage rights so granted. If requested by QWS, the Client will provide evidence of the licences to QWS prior to third party Materials being used.
10.2 The Client agrees that if QWS is required to modify any third party Materials to provide the Services, the Client will pay for the modifications on a time and materials basis.
11.1 The Client or its agent will permit QWS FTP access and all other administration access to the Website including hosting, control panel and CMS admin access.
11.2 No files will be uploaded to live sites or will be delivered to the Client until all amounts payable under this Agreement have been received by QWS. Delivery includes supply of the final website in any form, on a disk, by email or uploaded to a nominated hosting company.
11.3 QWS accepts no responsibility for delays or down time, breakdown or data loss caused by any Web Hosting company and/or internet service providers.
12.1 If the Services include the acquisition of a domain name, ownership of the domain name will not be transferred to the Client until all amounts payable under this Agreement have been received by QWS.
12.2 The Client acknowledges a domain name fee is payable to QWS from time to time and may vary on its renewal date. The Client further acknowledges the domain will automatically suspend if the domain name fee is not received by QWS no later than five Business Days before any renewal date.
12.3 QWS accepts no responsibility for any downtime or any other consequential loss resulting from the suspension of the services as result of problems arising from the availability or otherwise of the domain name.
13.1 The Client agrees to QWS including in the website design a 'website by Quantum' (or similar) statement and a link to QWS’s website (QWS Information) and the Client further agrees to retain the QWS Information on the website for the life of the website, unless otherwise agreed in writing by both QWS and the Client.
13.2 QWS reserves the right to request removal of QWS Information from the Website at any time and, if such a request is made, the Client must remove the QWS Information no later than 30 days after receipt of such request.
14.1 Without prejudice to any other rights QWS may have under this Agreement or at law, QWS may suspend or terminate the Services by giving notice in writing if the Client fails to comply with the terms of this Agreement, including the making of any payment or if the Client becomes or threatens to become or is in jeopardy of becoming subject to any form of Insolvency Administration.
14.2 Subject to clause 27.1(e) and to any notice period specified in service-specific terms under clause 1.4, the Client may terminate this Agreement on 30 days’ written notice to QWS.
14.3 If this Agreement is terminated by the Client under clause 14.2 prior to the completion of the Services or the Services are:
a. suspended or discontinued by the Client for any reason,
b. suspended or terminated by QWS pursuant to clause 14.1 of this Agreement, or
c. delayed by the Client for 30 or more days whether with or without notice to QWS,
the Client must pay QWS for all work done on any and all of the Services calculated on a time basis (Fees) plus the cost of any variations, changes, Materials and third party charges (including domain name registration and web hosting fees if applicable) plus any reasonable additional costs in connection with the Services necessarily incurred or committed by QWS (Incidentals) to the effective date of the termination, suspension or discontinuance.
14.4 The Client acknowledges that QWS may work concurrently on various components of the Services including design, coding, image editing and any other work required to deliver the Services. Work may therefore commence on later Services (such as website coding) before the completion of earlier Services (such as website design) upon which they rely. All work done will be taken into account in calculating Fees and Incidentals pursuant to clause 14.3.
14.5 The amount payable under clause 14.3 will be reduced by any amounts already paid by the Client, subject to clause 4.3A. Where the amount payable under clause 14.3 is less than the Deposit, clause 4.3A(d) applies and no amount is refundable to the Client.
14.6 Where the Services are suspended for 30 or more days for any reason, QWS reserves the right to revise costs and to submit a new Quote to the Client for approval.
14.7 On termination of this Agreement howsoever caused, QWS may delete or destroy any documents or Materials created for or received from the Client by QWS during the performance of this Agreement and the Client warrants that it will not rely upon QWS as a document storage facility post termination of this Agreement.
15.0 Nothing in this clause 15 excludes, restricts or modifies any guarantee, right or remedy conferred on the Client by the Australian Consumer Law or by any other law, to the extent it cannot lawfully be excluded, restricted or modified. Where QWS’s liability under such a law may lawfully be limited, it is limited at QWS’s option to resupplying the relevant services or paying the cost of having them resupplied.
15.1 Subject to clauses 15.0 and 15.1A, QWS is not liable for any damages of any type (including loss of data, revenue, profits, opportunity, future earnings, use or other economic advantage) arising out of or in any way connected with:
a. the Services;
b. Client Materials;
c. modifications, alterations or changes made to the Website by the Client or any third party;
d. the interaction of the Website with third party applications;
e. a third party Material provided or specified by QWS;
f. the functionality of the third party applications;
g. errors or defects in the Website;
h. the security of the Client’s Website;
i. suspension or termination of Web Hosting services for any reason;
j. any interruption, inaccuracy, error or omission, regardless of the cause whether such damages arise in contract, in tort, in equity, under statute, at law or otherwise; or
k. the use of any AI Tools or AI Services in connection with the Services, including any inaccuracy, error, omission or delay in any AI-generated or AI-assisted output, or any claim that such output infringes the Intellectual Property Rights of any third party.
15.1A Clause 15.1 does not exclude QWS’s liability for QWS’s breach of the Data Processing Agreement, including the loss, corruption or destruction of Client data caused by that breach. The reasonable costs of restoring or reconstituting that data from the most recent available backup are recoverable as direct loss. This clause is subject to the limits in clause 15.2 or 15.2A as applicable.
15.2 Subject to clauses 15.0, 15.1 and 15.2A, QWS’s aggregate liability to the Client for any Claims arising out of or in connection with this Agreement (whether based in contract, tort or under statute) is limited in the aggregate to the amount paid by the Client to QWS in the 12 months immediately preceding the event giving rise to the Claim.
15.2A Where the Services include a Managed Services engagement under clause 27, QWS’s aggregate liability to the Client for any Claims arising out of or in connection with that engagement is limited to the greater of:
(a) the amount paid or payable by the Client to QWS under that engagement in the 12 months immediately preceding the event giving rise to the Claim; and
(b) the amount actually recovered by QWS under the insurance it is required to maintain under the Data Processing Agreement in respect of that Claim.
This clause applies in place of clause 15.2 for Managed Services engagements.
16.1 Except for the express representations and warranties stated in this Agreement, QWS makes no warranties and explicitly disclaims any other representation, warranty or guarantee, express, implied, statutory (to the extent permitted by law) or otherwise that:
a. the Website(s) will be 100% error free in its or their construction;
b. the use of Services will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, computer program, system or data;
c. any data stored will be accurate or reliable;
d. errors or defects can be corrected;
e. the Services or the server(s) that make the Services available are free of viruses or other harmful components;
f. the Website will not be hacked;
g. any AI Tools or AI Services will be accurate, complete, free from bias, up to date, or suitable for any particular purpose; or
h. any AI-generated or AI-assisted output is original, unique, capable of protection by copyright, or free from the Intellectual Property Rights of any third party.
16.2 The Client acknowledges that a failure in the Website, other than a complete failure of consideration, does not constitute a reason to terminate this Agreement.
16.3 The Client acknowledges that AI Tools may generate outputs that are incorrect, incomplete, outdated or inconsistent, and that QWS’s role is to apply reasonable skill, care and human judgement to such outputs as part of the Services. The Client agrees that it will not rely solely on AI-generated outputs without appropriate internal review.
16.4 The Client warrants:
a. it holds the rights to use all Materials it provides to QWS and that it is compliant with all third party intellectual property rights of images, content, design and Materials it provides to QWS for the provision of Services under this Agreement, including where such Materials are used with any AI Tools or AI Services; and
b. it is compliant with the Privacy Act 1988, and all Materials provided to QWS including images and content in whatever format provided to QWS by the Client do not breach any privacy law in any jurisdiction, including when such Materials are used by QWS with AI Tools or AI Services in the course of providing the Services.
17.1 The Client agrees to release, indemnify (and keep indemnified) and hold harmless QWS, its related entities, directors, employees, agents, contractors and third party providers (Those Indemnified) against any and all Claims, liabilities, loss, costs, damages, fees or expenses (including reasonable solicitors costs) arising from or in any way related to:
a. the use of any and all third party Materials for the provision of Services under this Agreement;
b. the use of any and all images, photos and artwork provided by the Client for the provision of Services under this Agreement;
c. a breach of this Agreement by the Client including outstanding payments and breach of intellectual property;
d. any Material provided by the Client;
e. any delay in the delivery of the Services;
f. any variation, modification, change or addition to the Website by the Client or any third party;
g. the use or misuse of the Website Design or Website;
h. any disruption to the Client due to the non-availability of the Website;
i. any online payment facility on the Website;
j. any infringement or alleged infringement by any of Those Indemnified of any third party Intellectual Property Rights arising out of the use by Those Indemnified of any Material supplied to them by the Client or the Client's Personnel;
k. the use of any Materials provided by the Client with AI Tools or AI Services at the Client’s request or as reasonably necessary for QWS to perform the Services; or
l. any claim that AI-generated or AI-assisted output incorporated into the Website following the Client’s Approval under clause 8 infringes the Intellectual Property Rights of a third party.
17.2 The Client’s liability to indemnify QWS under this clause 17 will be reduced proportionally to the extent that any fault on QWS’s part contributed to the relevant loss, damage, expense, or liability.
17.3 QWS’s right to be indemnified under this clause 17 is in addition to, and not exclusive of, any other right, power, or remedy provided by law.
18.1 The Client acknowledges that website and technology security is a continuing challenge and that no system can be made wholly secure. Subject to clause 18.1A, QWS makes no representation, warranty or guarantee as to the security of the Website.
18.1A Clause 18.1 does not limit the security measures QWS has agreed to implement and maintain under the Data Processing Agreement.
18.2 The Client acknowledges it is responsible for maintaining the technology sitting behind its website and to update and comply with current security protocols for its computer systems. The Client further acknowledges that changes in technology may require the Client to upgrade the technology at its own cost.
18.3 If the Website poses a security risk, the Client authorises QWS to direct the Web Hosting provider to immediately shut down the website. QWS will not be liable for any damages of any type (including loss of data, revenue, profits, use or other economic advantage) arising out of or in any way connected with the shut down.
18.4 The Client acknowledges that QWS may, acting reasonably, select or change third party hosting, software and AI Tool providers used in connection with the Services, including declining to use particular providers where QWS considers that such use would present an unacceptable security, privacy or compliance risk.
19.1 Unless specified in the Quote, QWS retains no copyright in the Website.
19.2 Upon completion of the Services and expressly subject to the receipt by QWS of amounts payable under this Agreement and any additional fees and charges incurred, QWS will hand over the Website for the Client to use in accordance with clause 19.6, excluding any associated intellectual property or copyright that may belong to assets used on the Website, including but not limited to the platform and any stock images.
19.3 The Client agrees that QWS may display the Website Design and elements of the design in any format or location at its absolute discretion for any purpose whatsoever including marketing and promoting QWS’s services and the designer’s work, unless otherwise agreed to in writing.
19.4 [Not used]
19.5 Each party acknowledges that there is no assignment to the other party of Intellectual Property Rights in:
a. any material existing prior to the Commencement Date (including but not limited to logos, graphics, software, documentation, templates and data of either party or their clients) which is incorporated into or which has been used in the course of developing the Website or which is exchanged between the parties; or
b. QWS Tools.
19.6 On receipt by QWS of all payments under this Agreement and any additional fees and charges incurred, QWS grants the Client an irrevocable right to modify and use the Website but excluding any right to duplicate the Website or host it on another domain without the express written consent of QWS.
19.7 The Client acknowledges and agrees QWS will be entitled to use any ideas, concepts, know-how or techniques acquired in the construction of the Website for any purpose whatsoever.
19.8 Source code may or may not be available depending on the platform being open source, and whether the components of the platform are proprietary or open source.
19.9 There is no assignment to the Client of the Intellectual Property Rights of the source code, QWS Tools, all design and source files owned by QWS or any other 3rd party.
19.10 For avoidance of doubt, nothing in the above clauses 19.1 to 19.9 is intended to assign, licence or vest title, right or interest in any Intellectual Property Rights of third parties, which remain the property of their respective owners.
19.11 Where the Services include assets generated using AI Tools (including images, graphics, text or code), the Client acknowledges that:
(a) such assets may not attract copyright protection and QWS is unable to assign or warrant any exclusive right in them;
(b) identical or similar assets may be generated for other parties;
(c) QWS gives no warranty that such assets do not infringe the Intellectual Property Rights of any third party, including copyright, trade mark or the rights of any identifiable person; and
(d) the Client is responsible for satisfying itself as to the suitability of such assets. The Client's Approval under clause 8 constitutes acceptance of any AI-generated assets incorporated in the Website Design or Website.
20.1 The Parties may not use or disclose any Confidential Information of the other party except as required for the performance of this Agreement or as compelled by law.
21.1 Subject to clause 21.2, both Parties agree not to commence any legal proceedings in respect of any dispute arising under this Agreement, which cannot be resolved by informal discussion, until the procedure provided by clause 21.2 has been utilised.
21.2 Both Parties agree that any dispute arising during the course of these Terms & Conditions is dealt with as follows:
a. the Party claiming that there is a dispute will send the other a written notice clearly setting out the nature of the dispute and what action is required to settle the dispute;
b. the Party receiving the complaint will reply in writing within ten Business Days of receipt of the notice of the complaint;
c. the Parties will both attempt in good faith to resolve the dispute fairly through direct negotiation by persons who they have given authority to resolve the dispute;
d. the Parties have five Business Days, or such time as agreed, from the receipt of the reply to reach a resolution or to agree that the dispute is to be submitted to mediation or some alternative dispute resolution procedure; and
e. if:
i. there is no resolution of the dispute;
ii. there is no agreement on submission of the dispute to mediation or some alternative dispute resolution procedure; or
iii. there is a submission to mediation or some other form of alternative dispute resolution procedure, but there is no resolution within 15 Business Days of the submission, or such extended time as the Parties may agree in writing before the expiration of the 15 Business Days,
then, either Party may commence legal proceedings.
22.1 Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.
22.2 The party affected by a Force Majeure event must notify the other party as soon as practical of any anticipated delays.
22.3 If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended. Both parties must agree to a reasonable extension of the time to complete the Services, or failing agreement, determine an appropriate extension of time by the dispute resolution procedure set out in clause 21.
22.4 If a delay or failure by a party to perform its obligations due to Force Majeure exceeds 30 days, either party may immediately rescind the Agreement on providing notice in writing to the other party.
22.5 If this Agreement is rescinded pursuant to clause 22.4, each party releases the other party from:
(a) any further obligation to perform this Agreement (with the exception of any obligation on the Client to pay outstanding fees); and
(b) any new claim of loss or damage with respect to this Agreement at law or statute that is not subsisting at the time of rescission.
Entire Agreement
23.1 The entire Agreement comprises the provisions contained in the Quote, these Terms & Conditions, any service-specific terms that apply to the Services, and, where one is in place, the Data Processing Agreement, and supersedes all prior understandings, agreements and documentation relating to such subject matter.
23.2 Modifications, changes and amendments to this Agreement are enforceable only if they are in writing and are signed by both parties.
Severability
23.3 Any provision, or the application of any provision (or part thereof), of this Agreement which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
23.4 Any provision of, or the application of any provision of, this Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.
23.5 If a clause is wholly or partly void, illegal or unenforceable, it may be wholly or partly severed (as appropriate) without affecting the enforceability of the remaining part of the clause, or any other clause in this Agreement.
Waiver
23.6 A failure or delay by a party at any time to exercise any right it holds under this Agreement will not operate as a waiver of that right. A waiver by either party of a breach of any provision must not be held to be a waiver of any succeeding breach of the provision or a waiver of the provision itself.
23.7 A single or partial exercise by a party of any right it holds under this Agreement will not prevent that party from exercising that right again or exercising that right to the extent it has not already been exercised. In this clause, the word “right” means a right or remedy provided by this Agreement or at law.
Other
23.8 Each Party must upon demand by the other party, return any documents or Material supplied in connection with this Agreement.
23.9 Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the Parties. The Parties acknowledge QWS shall perform its obligations under this Agreement as an independent contractor.
23.10 Any reference to “include” or “includes” or “including” must be construed without limitation.
23.11 Words importing the singular include the plural and vice versa.
23.12 The operation of clauses 4, 14, 15, 17, 19, 20, 21, 23.13, 26 and 27 survives the expiration or earlier termination of these Terms & Conditions.
23.13 These Terms & Conditions are governed by and are to be construed in accordance with the laws of New South Wales. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales and of the courts competent to hear appeals from them, and waives any right to object to proceedings being brought in those courts on the ground of venue or that the proceedings have been brought in an inconvenient forum.
23.14 This Agreement may be executed in any number of counterparts and all counterparts taken together will constitute one instrument.
23.15 By executing this agreement each signatory represents that he or she is authorised to sign on behalf of QWS and the Client as the case may be.
23.16 QWS may publish policies and statements on its website from time to time, including an AI Use & Transparency Statement. Such materials are for information purposes only and do not form part of this Agreement, except where expressly incorporated by these Terms. To the extent of any inconsistency between those materials and this Agreement, this Agreement prevails.
24.1 The Client will provide revisions for the development version of the project in one document or through one round of feedback, using the feedback tool provided. Any additional revisions requested after the first round of feedback will be subject to additional charges.
24.2 Feedback: Feedback must be provided in a clear and concise manner and should include specific instructions for the revisions requested. QWS will not be responsible for any misunderstandings or errors resulting from unclear or ambiguous feedback.
24.3 Timeline: QWS will action revisions in one go, once feedback has been received. QWS will make every effort to complete revisions within the agreed-upon timeframe, but will not be liable for any delays caused by unclear or ambiguous feedback.
24.4 Indemnification: The Client agrees to indemnify and hold QWS harmless from any loss, liability, claim or demand, including reasonable legal costs, made by any third party due to or arising out of any errors or omissions in revisions made as a result of unclear or ambiguous feedback provided by the Client.
24.5 The Client acknowledges that various factors in the Client’s business may affect the timely provision of feedback on the project by QWS.
24.6 QWS reserves the right to charge additional fees in the event that delays in feedback result in additional costs, as set out in clause 24.7.
24.7 In the event that feedback is not provided within 21 days of the requested date, the Client will be charged an additional fee of $398 per delay for simple website projects. For custom website development projects, where additional logic, testing, and project management oversight are required, a fee ranging from $597 up to $995 per delay will apply. These charges reflect the increased costs incurred by QWS in managing delays for more complex development work. These fees may be evaluated on a case-by-case basis, and will appear in the Quote should there be any variations.
24.8 [Not used]
24.9 QWS will take into account the Client's timelines for the project and will dedicate an appropriate amount of time and focus to deliver a quality product.
24.10 QWS will also consider any new insights, feedback, changes to the Client's business, or other influencing factors that may affect the project's original brief and may result in changes to the project.
24.11 It is acknowledged that any changes made to the platforms used in the project may also increase the time required to complete the project by QWS.
24.12 QWS will not be held responsible for any such delays.
25.1 The Client acknowledges and agrees that QWS may use AI Tools and AI Services in connection with the performance of the Services, as further described in QWS’s AI Use & Transparency Statement published on its website, and updated from time to time.
25.2 The AI Use & Transparency Statement is provided for information only and does not form part of this Agreement. To the extent of any inconsistency between that statement and this Agreement, this Agreement prevails.
25.3 The Client acknowledges that AI Tools have known limitations, including the potential to generate information that may be inaccurate, incomplete, outdated or biased. QWS will exercise reasonable skill and care and will apply human review to AI-assisted outputs before they are relied upon or provided to the Client as part of the Services.
25.4 QWS may, acting reasonably, decide not to use particular AI Tools or providers where it considers that the use of those tools would present an unacceptable security, privacy, ethical or compliance risk. Nothing in this Agreement requires QWS to use any specific AI Tool or provider requested by the Client.
26.1 Where QWS stores, accesses or otherwise processes Personal Information on the Client’s behalf in providing the Services, the parties will enter into the Data Processing Agreement, which forms part of this Agreement. On matters relating to the handling of Personal Information, the Data Processing Agreement prevails over any inconsistent term of these Terms. Except where the Data Processing Agreement expressly provides for recovery up to the amount actually recovered by QWS under the insurance it is required to maintain under that agreement, nothing in the Data Processing Agreement increases QWS's aggregate liability beyond the cap in clause 15 (Limitation of Liability).
26.2 For Managed Services engagements, QWS stores and processes Client data within Australia, as further described in the Data Processing Agreement.
26.3 Where QWS processes Personal Information on the Client’s behalf, QWS will notify the Client of any new sub-processor of that Personal Information, and the Client may object on reasonable data-protection grounds, as set out in the Data Processing Agreement.
27.1 Managed Services. Where QWS provides Managed Services to the Client, the following apply in addition to these Terms:
(a) QWS will host and process Client data in Australia;
(b) QWS may engage the sub-processors notified to the Client, including Amazon Web Services;
(c) the Data Processing Agreement applies;
(d) Managed Services fees are recurring and set out in the relevant Quote;
(e) either party may end a Managed Services engagement on 60 days’ written notice, after which Client data is returned or deleted under the Data Processing Agreement;
(f) the exclusion of Web Hosting and CMS work from the definition of Services does not apply to a Managed Services engagement, but clauses 11.3 and 15.1(i) continue to apply;
(g) QWS will maintain the insurance required under the Data Processing Agreement for the term of the Managed Services engagement, and will provide a certificate of currency on the Client’s reasonable request; and
(h) QWS is not responsible for the acts or omissions of any supplier, contractor or other third party engaged by the Client, or for any act or omission of a party with access to the Client’s own environment whom QWS does not control, except to the extent QWS has expressly agreed in writing to supervise or manage that party.