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.
1.1 The Agreement between QWS and the Client is comprised of the Site Quote and these Terms & Conditions.
1.2 The Client wishes to obtain Services provided by QWS as set out in the Site Quote (Services). 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 parties providers in the delivery of the Services.
Agreement means these Terms & Conditions and the Site Quote.
Approval means the provisions set out in 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, proceedings, demands, liability, compensation, damages, remedy, reimbursement and/or costs whether at common law, in equity or statute.
Client Login Page means a webpage interface provided by QWS to the Client to facilitate provision of the Services.
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.
Deposit means 50% of the total value of Services as set out in the Site Quote.
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, patents 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;
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;
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 information provided by the Client to QWS in the form required by QWS including specifications and details of the Services and information provided by the Client at the Client Login Page.
QWS Tools means the proprietary computer software tools used by QWS to supply the Services under this Agreement.
Site Quote means the document entitled “Site Quote” as annexed to this Agreement.
Services means the services related to the design, development and limited maintenance of the Website for the Client in accordance with the Project Brief but does not include Web Hosting or creation or maintenance of a CMS.
Support Services means commercially reasonable technical support to maintain and update the website but shall not include the development of enhancements or training or other services outside the scope of the Site Quote.
Use means to access, install, download, copy or otherwise benefit from using the Services provided in accordance with this Agreement.
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 of the provision of various services, hardware, and software for websites, as storage and maintenance of site files on a server.
Website means the website created by QWS for the Client under this Agreement.
3. Client Assistance and Materials
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 Clients website), QWS reserves the right to revise costs and to submit a new Site Quote to the Client for approval.
4.1 The prices set out in the Site Quote are valid for acceptance within 30 days from the date specified in the Site Quote. The Site 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 Site 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 Upon entering into this Agreement, the Client must pay to QWS a deposit being an amount equal to 50% of the total value of Services as set out in the Site Quote.
4.4 Without limiting any other provision in this Agreement:
a. a further 30% of the total value of Services as set out in the Site 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 Site 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 Site Quote pricing includes fees for the Services only. Any and all other costs incurred in the 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 Site 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 Project Brief
6.1 QWS will provide the Client with a login and password to their Client Login Page within five business days of the date of this Agreement (Client Login).
6.2 The Client must provide the information requested by QWS at the Client Login Page within 21 business days of receipt of the Client Login. The information provided by the Client must be sufficiently detailed to allow QWS to commence work on the Services.
6.3 If the Client does not comply with the previous clause 6.2, QWS reserves the right to review the fees in the Site Quote. If a revised Site Quote is provided to the client, work will not commence on the Services until QWS receives the revised Site 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 Site 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 Site Quote.
7.2 QWS may require the Client to complete “Site 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 Site Quote as determined by QWS at its complete discretion (Substantial Change), QWS may submit a new Site Quote and delivery schedule to the Client for approval. Work will not commence on the revised services until a revised Site Quote is signed by the Client and provided to QWS. If agreement cannot be reached in respect of a new Site Quote, the parties may continue to use the most recent agreed version of the Site 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 Site Quote is agreed between the Parties, then any earlier agreed Site Quote will be severed from this Agreement, the new Site Quote will form part of this Agreement and will have no affect on the validity and enforceability of these Terms & Conditions.
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 Third Party Materials
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 Web Hosting
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 Domain Name
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 working 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 QWS Acknowledgment on Website
13.1 The Client agrees to QWS including in the website design a copyright 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 requested by QWS.
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 QWS’s information no later than 30 days after receipt of such request.
14 Suspension or Termination of Services
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 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, or
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 the 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.
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 Site 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 this it will not rely upon QWS as a document storage facility post termination of this Agreement.
15 Limitation of Liability
15.1 The Client agrees that in no event shall QWS be 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 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, or
j. any interruption, inaccuracy, error or omissions, regardless of the cause whether such damages arise in contract, in tort, in equity, under statute, at law or otherwise.
15.2 Subject to clause 15.1, 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.
16 Warranties and Disclaimer of Warranties
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 Service available are free of viruses or other harmful components, or
f. the Website will not be hacked.
16.2 The Client acknowledges that a failure in the site, other than a complete failure of consideration, does not constitute a reason to terminate this agreement.
16.3 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, 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.
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
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 websites and technology security is a consistent problem and the Client further acknowledges that QWS makes no representation, warranty or guarantee as to the security of the Website.
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.
19 Intellectual Property
19.1 Copyright of the Website Design remains the property of QWS.
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 grant to the Client the right to use the Website Design as a website.
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.
19.4 Subject to clause 19.5, QWS owns the Intellectual Property Rights in the Website.
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’s 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 The, source code, QWS Tools and back end development of the Website is proprietary to QWS.
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.
Third Party Materials
19.11 For avoidance of doubt, nothing in the above clauses 19.1 to 19.10 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.
20 Confidential Information
20.1 The Parties may not use or disclose any Confidential Information of the other party except as required for the performance this Agreement or as compelled by law.
21 Dispute Resolution
No Legal Proceedings
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.
Dispute Resolution Procedure
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
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 Force Majeure
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.
23 General Provisions
23.1 The entire Agreement comprises the provisions contained in the Site Quote and these Terms & Conditions and supersedes all prior understandings, agreements and documentation relation 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.
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.
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.
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 these clauses 20 survives the expiration or earlier termination of these Terms & Conditions.
23.13 These Terms & Conditions are to be construed in accordance with the laws of New South Wales.
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.