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 specified in this Agreement. In no event shall ARPASTART be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by ARPASTART even if ARPASTART has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy. Nothing in this agreement is intended to exclude or limit any implied warranties or rights the Client may have under the Australian Consumer Law.
16. NO SOFTWARE WARRANTIES
16.1 To the extent permitted by law, all software, technical solutions and systems are provided “as is” without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. ARPASTART makes extensive use of third-party solutions and cannot warranty systems that we have no control over.
16.2 If warranties are required, ARPASTART will attempt to source warranted services. In this context, any warranty would be provided by a third party and will ARPASTART will assume no liability.
17. PURCHASED THEMES AND OTHER SOFTWARE
ARPASTART takes no responsibility for the quality of purchased or leased themes, plugins and other software (defined as purchased software), assumed to be of a professional quality. If software is supplied with bugs and defects, ARPASTART will not be liable for fixing them.
18.1 Either party may terminate this Agreement by giving written notice to the other of such termination. In the event that work is postponed or terminated at the request of the Client, ARPASTART shall have the right to bill pro rata for work completed through to the date of that request, while reserving all rights under this Agreement.
18.2 If additional payment is due, this shall be payable within seven days of ARPASTART delivering an invoice to the Client after notification by the Client to stop work. In the event of termination, the Client shall also pay any expenses reasonably incurred by ARPASTART pursuant to this Agreement.
Part or all of any provision of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining provisions of this Agreement continue in force.
Neither party may assign this Agreement or any rights under this Agreement without the prior written consent of the other party. Consent must not be unreasonably withheld.
21. GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of the State of Victoria within the Commonwealth of Australia and each party submits to the non-exclusive jurisdiction of the courts of that State.
22. DATA, SECURITY AND ONGOING MANAGEMENT
22.1 Upon the end of this Agreement, the Client is free to transfer their website management to another service provider. ARPASTART will supply the last backup of the site and associated data where permitted by software licences. ARPASTART will take all reasonable actions to transfer the Client’s domain name to a new registrar.
22.2 Ongoing Management may be specified in a Statement of Work
22.3 If the Client does not proceed with an additional or Ongoing Management agreement, the Client is responsible for Ongoing Management of the website and indemnifies ARPASTART against any loss or damage arising directly or indirectly from website downtime or security breaches.
23. CLIENT RESPONSIBILITIES
If the Client or their agent or contractor employed by the Client other than ARPASTART attempts to update, edit or alter the site’s pages, infrastructure, source files or hosting management in a way that causes damage to individual pages or the site’s architecture, time to repair web pages will be assessed as an additional cost above the costs outlined in this Agreement and at our professional or overtime rates.
24. DOMAIN NAMES
24.1 All domain names are legally owned by the Client. All domain name registrations are subject to availability and registration rules. The Client manages their domain(s) and payment of fees unless the Client requests in writing that ARPASTART manage the domain name(s) on behalf of the Client, in which case ARPASTART will invoice the Client when fees are due. 24.2 ARPASTART uses Dreamscape Networks FZ-LLC Reseller Account (referred to as REGISTRAR) to manage our Clients’ domain names. The Client is bound by the REGISTRAR’s “General Terms” which are found on their website: crazydomains.com.au 24.3 The Client indemnifies ARPASTART against any loss or damage arising directly or indirectly from any failure of services provided by the REGISTRAR.
25.1 Hosting services provided by ARPASTART are covered by our Hosting Provider’sTerms of Service.
25.2 Where a third party hosting service is used by the Client, the Client is responsible for contacting the chosen host for support relating to hosting matters. ARPASTART will charge for costs incurred liaising with the hosting company and supporting the Client with hosting related issues.
25.3 The Client acknowledges and agrees that ARPASTART will charge for costs incurred by ARPASTART working with third-party hosting environment if installation and management exceed standard time frames. This includes delays caused by limited access permissions, provision by Client of incorrect account details, slow server speeds and incompatibility with hosting environments.
25.4 In the event of any inconsistencies between ARPASTART’s our Hosting Provider’s Terms of Service and these General Terms and Conditions, the Hosting terms and conditions will prevail in relation to hosting services to the extent of any inconsistency.
26. BROWSER VARIANCE
ARPASTART test websites against the browsers and devices outlined in Schedule 2: Website Testing. Support for additional browsers or devices will be quoted by request.
Website visitors use different monitors with different settings. Colours, layout and image quality of the website including graphics and photography may change between computers and monitors.
28. TESTING AND ACCEPTANCE OF THE WEBSITE
Once the project has, in the opinion of ARPASTART been completed, ARPASTART will notify the Client verbally and in writing, and provide the Client with an opportunity to test and review the website. If the Client determines that the website does not comply with the Project Components agreed to in this document, ARPASTART agrees to carry out any necessary and reasonable modifications by mutual agreement without extra charge.
29. ERRORS AND OMISSIONS
29.1 ARPASTART is not liable for content errors or omissions.
29.2 The Client indemnifies ARPASTART against any loss or damage arising directly or indirectly from any errors and omissions.
All text must be supplied in digital format (TXT, RTF, HTML, MS Word, Open Office).
Graphics and photographs are to be supplied in digital format to ARPASTART. Photographs must not exceed a file size of 5mb each (unless by prior arrangement). Larger files will incur an extra cost due to increased time in processing.
All logos and branding must be provided in an industry standard vector format (preferences are: EPS, PDF, .AI).
If the Client cannot meet any of the set-up assumptions specified in a Statement of Work, the Client must set up these tools and systems themselves, commission an external supplier or commission ARPASTART (at additional fees) to assist them in setting up these tools and processes. ARPASTART will advise where additional set-up fees are required and the Client acknowledges that if set-up is not performed the balance of the Services may not be able to be performed.
Due to the vast variance of devices and browsers, testing has become very complex. ARPASTART provides simple testing using browser-based emulators to test websites. ARPASTART will not (unless specified otherwise in a Statement of Work) test using physical devices and setups. ARPASTART will test on the latest versions of browsers on the latest operating systems at the date of publishing the website. Stats are referenced from w3schools.com:
Laptop – Windows 7/OSX – Chrome
Laptop – Windows 7/OSX – Firefox
Laptop – Windows 7- Internet Explorer 11
Laptop – OSX – Safari
Phone – IOS – Safari
Tablet (standard size iPad) – OSX – Safari
Phone – Samsung Galaxy S5 – Android – Chrome
ARPASTART will test and optimise for additional browsers and devices if requested by the Client before commencement of the project for additional fees.
ARPASTART can also test and optimise for additional browsers and devices if requested by the Client upon completion of the project for additional fees. It will likely be more expensive to test for extra browsers upon completion of the project.
The Client is responsible for all content. ARPASTART may be engaged with a separate agreement to produce content on the Client’s behalf.