As used throughout these General Terms and Conditions:
Agreement means the entire content of this Terms and Conditions document, the Statement of Works, Schedule(s), together with any other attached documents.
Project means the scope and purpose of the Client’s identified usage of the work product as described in the Statement of Works.
Services means all services and the work product to be provided to the Client by ARPASTART as described and otherwise further defined as the Deliverables in the Statement of Works.
Open Source Software means computer software that is available in source code form for which the source code and certain other rights normally reserved for copyright holders are provided under a software licence that permits users to study, change, and improve the software.
Deliverables means the services and work product specified in the Statement of Works to be delivered by ARPASTART to the Client, in the form and media specified in the Statement of Works.
Content means all materials, information, photography, writings and other creative content provided by the Client used in preparing or creating the deliverables.
Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Australian and International Copyright Law.
Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the final Deliverables.
Ongoing Management means the ongoing work to keep the website functioning and secure. This includes, but is not limited to: data management, backups, maintenance, upgrades and software patches.
1. ORDER OF SERVICES AND AUTHORISATION
1.1 Orders for the Services may be made from time to time by the Client agreeing to a Statement of Works with ARPASTART. Each Statement of Works:
shall constitute a separate agreement between the Client and ARPASTART;
has effect on and from the date of its execution and continues until the Expiry Date (as specified in that Statement of Work) or its earlier termination in accordance with the terms and conditions; and
shall be subject to the terms and conditions
1.2 The Client authorises ARPASTART to perform the Services outlined in the Statement of Works.
2. AGREEMENT SCOPE AND PERIOD
Services supplied are limited to what is set forth in a Statement of Work and this Agreement for the period specified. Any additional services beyond those specified in the Statement of Works will require an additional agreement. We reserve the right to adjust our service and rates after the period specified in the Statement of Works.
3. MEETINGS AND PRODUCTION SCHEDULES
3.1 Production schedules will be established and adhered to by both the Client and ARPASTART. Where production schedules are not adhered to by the Client, final delivery date or dates will be adjusted accordingly. Additional costs may be incurred due to increases in time to manage or deliver the services.
3.2 ARPASTART reserves the right to adjust project milestones during the project.
3.3 The project milestones set do not factor in extensions of time resulting from Client’s internal decision-making/information gathering processes, delays in the Client providing information to ARPASTART, changes requested to the original Statement of Works, delays due to website host companies and absence of the Client.
3.4 Both the Client and ARPASTART are required to provide the other party with 24 hours notice to re-schedule meetings. Meetings that are not re-scheduled and missed by the Client or ARPASTART are charged at $50 for the first, $100 for subsequent missed meetings.
4. COSTS AND FEES
4.1 ARPASTART reserves the right to adjust rates after the period of this Agreement. Small additional tasks are in billed in one-minute increments with a 15-minute minimum charge.
4.2 Fees for professional services do not include outside purchases such as, but not limited to, software licensing, copyright licensing, printing, photography, printing, shipping and handling or courier service. Expenses are itemised on each invoice. Expenses are subject to GST. Outside purchases will be approved by the Client before purchase is made.
5.1 Estimates are based on a reasonable time schedule, and may be revised to take into consideration the Client’s requested “priority scheduling”. Requested priority schedules that require overtime and weekend work will be subject to 60% markup at an hourly rate and need to be agreed to beforehand by both parties.
5.2 Overtime is defined as between 6.00 pm – 9.00 am Monday to Friday, all day Saturday, Sunday and public holidays, unless otherwise agreed.
6.1 The Client is required to pay invoiced amounts within 7 days of invoicing unless otherwise provided in the Statement of Works. ARPASTART reserves the right to pause work after 7 days upon late payment, pending payment or negotiation.
6.2 Websites and commissioned work will be published live on Client approval on:
ARPASTART’s servers subject to payment of hosting fees and continued payment as per payment schedule; or
Transferred to the Clients server upon payment of all project fees.
6.3 In the event of cancellation of the project prior to completion, the Client must pay ARPASTART for all work completed up to the date of termination, based on the contract price and the expenses already incurred. Progress payments are non-refundable.
7. CONFIDENTIALITY AND PRIVACY
7.1 ARPASTART will not disclose to any third party or use, other than for the purposes of this agreement, any knowledge or information imparted to or obtained by it during or in connection with the fulfilment of this Agreement, which is of a secret or confidential nature relating to the business, equipment, processes, products, services or business strategies offered or employed by the Client.
7.2 This obligation of confidence will cease to apply in relation to information that ARPASTART is required to disclose by any law, or which becomes part of the public domain other than as the result of a breach by ARPASTART of its obligations of confidence under this Agreement.
ARPASTART reserves the right to assign subcontractors or external suppliers. Any subcontractors or external suppliers will be bound to the terms of this Agreement. ARPASTART will notify the Client of subcontractors working on this project and their role.
ARPASTART is confident that the Client’s expectations will be exceeded and as such, ARPASTART reserves the right to use the Client’s website, associated graphics and any unused ideas and development in the promotion of ARPASTART’s services. The Client agrees to allow ARPASTART to retain a credit and link from the footer of the website.
The Client is responsible for all trademark, servicemark, copyright and patent infringement clearances. The Client is also responsible for arranging, prior to publication, any necessary legal clearance of materials ARPASTART uses for this project. The Client indemnifies ARPASTART against any loss or damage arising directly or indirectly from any unauthorised use of photographs, text, or other Intellectual Property not under copyright ownership of the Client.
11. PROJECT COPYRIGHT
11.1 After acceptance of the website and payment of all sums due by the Client, ARPASTART agrees to assign perpetual and unrestricted copyright to use any materials produced by ARPASTART in accordance with this Agreement to the Client including exclusive usage rights to unique graphics.
11.2 ARPASTART reserves all rights to licence and release all software code including website templates developed under this Agreement.
12. SOFTWARE LICENCES
12.1 ARPASTART makes extensive use of open source software and components to supply websites and services to the Client. ARPASTART will not charge additional licensing fees on open source software. Installation and modification fees may be applicable.
12.2 All software and components not developed by ARPASTART retain the original licence and terms associated with them. ARPASTART cannot assign any rights to the Client and the Client agrees to be bound by the original Author’s terms.
12.3 ARPASTART uses developers licences for various modules. Should the Client choose to host their website on their own servers, the Client is responsible for the purchase of an individual licence, or the module will be uninstalled prior to the relocation of the website.
13. DISPUTE RESOLUTION
In the event of unresolved disputes between the parties to this Agreement the following dispute resolution procedure will apply:
the party claiming that a dispute has arisen in relation to this Agreement shall give the other party written notice specifying the nature of the dispute;
within 10 Business Days of receipt of that notice the parties must hold discussions and negotiations in good faith in order to amicably resolve the dispute; and,
in the event that the parties cannot resolve the dispute through discussions and negotiations the parties shall refer the dispute to an independent mediator or expert as agreed or, failing agreement, as appointed by the Victorian Small Business Commissioner vsbc.vic.gov.au and will use their best endeavours to resolve the dispute in mediation;
the cost of submission to an independent mediator or expert will be met equally by the parties.
14. FORCE MAJEURE
The Client and ARPASTART shall not be deemed in breach of this Agreement if one party is unable to complete the Services or any portion thereof by reason of fire, labour dispute, Act of God, death, illness or incapacity or any local, state, federal, national or international law, governmental order or regulation or any other event beyond ARPASTART or the Client’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, the party shall give notice to the other party of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
15. LIMITATION OF LIABILITY
To the extent permitted by law, the maximum liability of its Designers, Directors, Officers, Employees, Design Agents and Affiliates (“ARPASTART parties”), to the Client for damages for any and all causes whatsoever, and the Client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net cost of this project as spec