1 PART 1: OUR AGREEMENT WITH YOU 1. AGREEMENT 1.1 Parties This Agreement is made between Cheap Web Designers (ACN ) of Suite 504, 365 Little Collins Street Melbourne VIC 3000 ("CWD") and YOU the client. YOUR full details are set out in the Proposal ("Client") for the provision and delivery of web design and development and the related services described in the Proposal. 1.2 Acceptance of Agreement YOU acknowledge that YOU have read, understood and agreed to these Web Design & Development Terms & Conditions, and agree to be bound by them. 1.3 Once YOU have paid YOUR deposit and WE commence OUR Services WE have accepted YOUR agreement to honour YOUR promises to US under this Agreement. The terms and conditions of this Agreement are located at 1.4 Questions or Concerns Our Agreement with YOU Please read the terms of this Agreement carefully. If you have a question or concerns regarding the this Agreement you should notify US in writing at Suite 504, 365 Little Collins Street Melbourne VIC DEFINITIONS AND INTERPRETATION 2.1 Definitions In this Agreement the following definitions apply unless the context requires otherwise: Materials means all content that YOU are required to provide to CWD from time to time for incorporation in the Site; Site means the website to be designed and developed in accordance with this Agreement, the URL of which is set out in YOUR Proposal document; Site Software means software for the Site commissioned by YOU independently of CWD, (where applicable). Proposal means the proposal associated to this Agreement Quote means the payment amount/s associated with the Proposal. Payment Plan means the payment amount/s and terms that supersedes the payment terms set out in the Proposal and the payment amount set out in the Quote. Services means the services for Web Design & Development as set out in the Proposal; Force Majeure Event any event arising which is beyond reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot, war, internet interruption).
2 2.2 Interpretation For purposes of this Agreement and unless the context otherwise requires the following defined terms apply to this Agreement: (a) "You" Your refers to you, as OUR Client; and (b) "We", "Us" "Our" refers to CWD. 3. SERVICES & DELIVERY 3.1 Engagement YOU engage CWD and CWD agrees to provide the Services, and perform its obligations, in accordance with YOUR Proposal. 3.2 CWD shall provide the Services in accordance with the Proposal and this Agreement and will use its best endeavours to deliver the Services within the timeframe set out in the Proposal and to achieve the outcomes proposed in the Proposal for the provision of the Services. 3.3 Delivery Delivery dates or times indicated by CWD in the Proposal are approximate only and are not a guarantee of delivery on these dates indicated. Time for performance of the Services shall not be of the essence unless WE specifically agree to make it so. PART 2: TRADING TERMS AND PAYMENTS 4. TRADING TERMS AND PAYMENTS 4.1 OUR fee and payment terms are set out on our website. 4.2 CWD shall issue tax invoices in respect of OUR fees and at the frequency set out in chosen item. 4.3 OUR fees are payable in Australian dollars immediately of the date of the tax invoice or on such other payment terms set out in the tax invoice and must be made by one of the methods outlined in the invoices provided by CWD. 4.4 All deposits or advanced payments are non-refundable. 4.5 YOU remain committed to pay CWD for all charges for Services for their full invoicing periods (as selected in YOUR Proposal document), irrespective of whether:- (a) this Agreement has been suspended or terminated during such invoicing period; or (b) the Services have been changed or cancelled during the relevant such invoicing period.
3 4.6 GST Unless otherwise stated, all Charges and other amounts payable are exclusive of GST. 4.7 If GST becomes payable on any supply made or provided, YOU will pay CWD the applicable GST on the consideration for the supply. 4.8 Our Right of Set-Off CWD may set off any amounts that YOU owe to US under this Agreement against amounts that may be payable by CWD to YOU. 4.9 CWD may suspend the Services by notice, and YOUR use of and access to Services (including public access to YOUR web content and client portal), until outstanding invoice(s) and interest are paid in full. Charges shall continue to accrue during such period of suspension. Time for payment shall be of the essence Our Of Scope Works Additional charges shall be payable for out-of-scope work, that is work not otherwise expressly set out in YOUR Proposal document Variations and Cancellations YOU may change the Services by notifying CWD in writing. YOUR new Service will take effect from the date CWD commences provision of the new Services in accordance with the terms agreed in writing by CWD YOUR next tax invoice will reflect: (a) (b) (c) (d) Charges applicable to YOUR new Service from the date of the notice; Charges for any remaining invoice period for YOUR previous Service(s) (whether or not such Service(s) are utilised during such remaining invoice period); Charges for amounts then due but unbilled for YOUR previous Service(s); and Charges for costs associated with any Service change or cancellation, where such costs are based on the standard rates of CWD at the time. Any amounts or deposits already paid by YOU for a changed, cancelled or discontinued Service shall not be refunded in any circumstances CWD may change this Agreement by giving YOU written notice (whether by , fax or post to designated address, fax number or postal address, notified by YOU to CWD as part of registration process). Where change relates to an increase OUR charges, CWD shall provide YOU with thirty (30) days; prior written notice Interest On Overdue Payments YOU agree to pay interest to CWD on any overdue moneys, calculated from the date of the relevant invoice to the date of actual payment in full (inclusive of both dates) at a rate of 2% per calendar month or
4 part thereof (or such lesser amount as CWD may in its discretion specify). 5. CUSTOMER RESPONSIBILITIES 5.1 YOU are responsible for the accuracy and completeness of the Materials that YOU provide to US. 5.2 CWD shall not be liable for any delays resulting from YOUR failure to fulfil any of YOUR obligations to provide US with Materials necessary to complete a stage of the Services. 5.3 CWD reserves the right to invoice YOU for any additional expenses reasonably incurred by CWD as a result of YOUR delays. 5.4 YOU acknowledge that the ability of CWD to provide the Services is dependent upon YOUR full and timely co-operation (which YOU agree to provide), as well as the accuracy and completeness of the design specifications, Materials and any other information, data or content provided by YOU or on YOUR behalf. 5.5 YOU shall provide CWD with access to, and use of, all information, data and documentation reasonably required by CWD for its performance of its obligations. 6. WARRANTIES 6.1 WE promise that WE will perform the Services with reasonable care and skill. 6.2 Extent of Our Liability This Agreement sets out the full extent of CWD s obligations and liabilities in respect of the supply of Services and the Site. All conditions, warranties or other terms concerning the Services or the Site which might otherwise be implied into this Agreement (whether by statute or otherwise) are hereby expressly excluded. 6.3 Exclusion of Warranties Services shall be provided without any guarantees, conditions or warranties as to its accuracy, speed, uptime, completeness, reliability, suitability or currency of Services and they are provided on an "as is where is" basis. CWD does not warrant that the Services or the Site will be uninterrupted or error free, will meet YOUR requirements (such as speed, uptime, performance or reliability), nor will they be free from external intruders (hackers), unauthorised virus or worm dissemination. Any timeframes are provided as a guide or estimate only. 6.4 Indirect Loss To extent permitted by law, CWD, its directors and employees hereby expressly exclude: (a) all conditions, warranties and other terms which might otherwise be implied by statute, common law or equity;
5 (b) (c) any liability for loss of income or revenue; loss or interruption of business; loss of uptime; loss of profits; loss of or damage to software; loss of anticipated savings; loss of data; loss of goodwill; wasted management; or any liability for any direct, indirect or consequential loss or damage incurred by YOU or any end user in connection with Services, or use of Services; and any other loss or damage of any kind, however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable. 6.5 This does not affect any liability of CWD which cannot be excluded or limited at law. Without limiting foregoing, parties acknowledge that laws in certain jurisdictions may imply warranties and conditions which cannot be excluded, restricted or modified except to a limited extent. If any such laws apply, then to extent permitted by law of relevant jurisdiction, CWD's liability is limited to any one or more of the following in its sole discretion: (a) in case of any goods, replacement or repair of goods, or supply of equivalent goods, or payment of cost of repairing or replacing goods or supplying equivalent goods; and (b) in case of any services, supply of services again or payment of cost of having services supplied again.
6 6.6 Limitation of Liability Without limiting foregoing, YOU agree that in no event shall CWD s maximum aggregate liability to YOU exceed the quoted cost of providing the Services under the Proposal. PART 3: INTELLECTUAL PROPERTY RIGHTS ISSUES 7. INTELLECTUAL PROPERTY RIGHTS ISSUES 7.1 Respect and support for copyrights, both yours and those of others YOU cannot request CWD to upload any part of the Materials to the Site that YOU don t own or have permission to reproduce. 7.2 Whether or not YOU have legal permission to reproduce any content is not something WE determine for YOU. 7.3 It is YOUR responsibility to understand the permissions associated with any content or Materials that YOU have asked US to upload. 7.4 If YOU believe any Content uploaded to YOUR Site violates copyright of another person, please notify US in writing. 7.5 Your Content YOU retain copyright in the Materials and YOU grant CWD a licence to use same to extent required to perform its obligations under this Agreement. 7.6 WE will not sell, share, or reproduce YOUR content except as necessary to provide OUR service and complete YOUR Site. 7.7 YOU acknowledge and agree that YOU are responsible for the creation and compilation of YOUR own content, and that neither CWD nor any other party involved with the production of any product incorporating YOUR content assumes that responsibility. 7.8 Our Intellectual Property Rights. YOU hereby acknowledge and agree that as between YOU and CWD, CWD exclusively owns all worldwide right, title and interest in and to all contents, graphics, designs, data, computer codes, ideas, know-how, "look and feel," compilations, magnetic translations, digital conversions and other matters included within the Site and related to the Site collectively "Our Materials", and all modifications and derivative works thereof, and all worldwide copyrights, trademarks, service marks, patents, trade dress, trade secrets,
7 moral rights and other intellectual or industrial property rights related thereto. 7.9 The copying, redistribution, use or publication by YOU of any of Our Materials or any part of the Site, except as otherwise allowed by this Agreement is strictly prohibited Trademarks YOU hereby acknowledge and agree that "CWD" and other CWD marks on the Site are either trademarks or service marks of CWD shall remain the exclusive property of CWD Copyright Policy CWD respects the intellectual property rights of others. WE ask OUR clients to do the same. CWD may terminate this Agreement if it believes YOU may be infringing the copyright or other intellectual property rights of others It is CWD s policy to respond expeditiously to claims of infringement CWD will promptly process and investigate notices of alleged copyright infringement and will take appropriate actions under the Digital Millennium Copyright Act ( DMCA ) and other applicable laws. CWD may terminate access for users and account holders whom it believes to be infringers at its sole discretion Site Software YOU acknowledge and agree that the Site and any Site Software used in connection with the Site contains proprietary and confidential information that is protected by applicable intellectual property and other laws. All such Site Software shall remain the property of the developer of the Site Software YOU also warrant to US that there are no outstanding disputes in connection with the property rights, intellectual property rights or other rights in the content or any parts of the Materials or the Content YOU agree to indemnify, defend and hold harmless CWD and each of their officers, directors, shareholders, employees, partners, sponsors, agents, attorneys, representatives, subsidiaries, affiliates, successors and assigns collectively "Affiliated Parties" from all liabilities, losses, damages, claims and expenses, including reasonable legal fees and costs, whether or not a lawsuit or other proceeding is filed, that in any way arises out of or relates to: (a) YOUR breach or violation of this Agreement; (b) YOUR use of the Site; (c) any transactions or other activities YOU engage in with any third party service providers, third party merchant sites "Merchants" or other third parties who are part of OUR affiliate program or who YOU access by or through this Site; (d) YOUR infringement or violation of the intellectual property or other rights of third parties; and/or
8 (e) YOUR negligence or willful misconduct In the event, YOU fail to promptly indemnify and defend such claims and/or pay CWD s expenses, as provided above, Permission shall have the right to defend itself, and in that case, YOU shall reimburse CWD for all of its reasonable attorney s fees, costs and damages incurred in settling or defending such claims within thirty 30 days of each of CWD s written requests CWD retains copyright and all other intellectual property rights in: (a) (b) all programming modules, code, computer programmes, material, tools, drawings, documents, presentations, specifications, data, designs, know-how and anything else generated, whether as improvements or otherwise, in course of providing (directly or indirectly) Services; and all intellectual property rights existing prior to commencement of such Services ("CWD IP") Unless agreed otherwise in writing, CWD shall be entitled to claim authorship for work which it is responsible YOU acknowledge that CWD has no control over any content or links placed on Site by YOU or anyone else and does not purport to monitor content of the Site. Without limiting the foregoing, CWD reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. Notwithstanding, CWD shall not be deemed to have any control over the Site or its contents YOU acknowledge that Services may include individual third party software or third party intellectual property rights (including, with limitation, content management system and open source software) ("Third Party IP") and licence in clause 7.24 and YOUR rights to use Services is without prejudice to the Third Party IP. Any rights YOU may have to access Third Party IP shall be limited to extent of CWD s right to access same and its ability to pass on such rights to YOU For a period of 2 years after delivering on the Services CWD may include statement "Powered by CWD Labs" on the home page of the Site, together with a hyperlink to the CWD website. 8. TERM AND TERMINATION 8.1 This Agreement commences on date CWD commences providing the Service or such other date agreed by US in writing ("Commencement Date") and terminates on date WE complete the Services or as otherwise set out in YOUR Proposal document, unless the parties agree in writing to extend the term of this Agreement.
9 8.2 Termination CWD may terminate or suspend this Agreement (without any liability): (a) at any time by giving YOU at least 30 days notice; (b) immediately on giving notice to YOU, if YOU breach, including failure to pay the Charges; or (c) YOU become insolvent within the meaning of Corporations Act, are otherwise unable to pay YOUR debts when due or YOU cease to carry on business. 8.3 Should CWD elect to reinstate such suspended Service YOU shall be responsible for CWD s standard reactivation charge. 8.4 When this Agreement for whatever reason: (a) CWD shall invoice YOU for all amounts then due but unbilled and it may delete all data, materials, content, configuration and settings in connection with YOUR Services, whether on a CWD storage media or otherwise. It is YOUR obligation to ensure YOU have retained back-up copies. (b) Any amounts or deposits already paid by YOU shall not be refunded in any circumstances. (c) All licences granted by CWD under this Agreement (including those referred to in clause 7.24 shall terminate immediately. 8.5 Following expiry or termination of this Agreement otherwise than on termination by CWD pursuant to clause 8.2(c) CWD shall: (a) (b) Return to YOU all Materials, and shall provide to YOU an electronic copy of the Site (including all content on the Site). Provide such assistance as is reasonably requested by YOU, subject to payment of CWD's expenses reasonably incurred. 9. OTHER ISSUES 9.1 Disclaimer of Warranties YOU understand and agree that once WE deliver the Site to YOU and complete OUR obligations under this Agreement and the Proposal YOUR use of the Site is at YOUR sole risk. 9.2 Invalidity If any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or rule of law, such provision shall be deemed amended to achieve as nearly as possible the same economic effect
10 as the original provision and the remaining provisions of this Agreement shall in no way be affected or impaired. 9.3 The language in this Agreement shall be interpreted as in accordance with its fair meaning and not strictly for or against either party. 9.4 Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. 9.5 Waiver OUR failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. 9.6 Force majeure A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay will continue. The affected party shall take reasonable steps to mitigate the effect of the Force Majeure Event. 9.7 CWD shall have no liability for any failure or delay resulting from any condition beyond the reasonable control of CWD, including but not limited to governmental action or acts of terrorism, earthquake, fire, flood or other acts of God, labour conditions, power failures and Internet disturbances. 9.8 Notices All notices given by CWD may be given by to address notified by YOU to CWD as part of YOUR registration process. It is YOUR obligation to keep that address current and correct. YOU agree that record of CWD having sent a notice to YOU by is, of itself, conclusive proof of receipt.
11 9.9 Notices given by YOU must be delivered to CWD in writing and addressed to: 504/365 Little Collins Street, Melbourne, 3000, Australia Entire agreement The Agreement constitutes the entire and only agreement between US and YOU, and supersedes all prior or contemporaneous agreements, representations, warranties, and understandings with respect to the content, products or services that CWD has agreed to provide to YOU in accordance with the Proposal Governing law and jurisdiction This Agreement and any dispute or claim arising out of or in connection with same shall be governed by and construed in accordance with the laws of Victoria, Australia and parties submit to the exclusive jurisdiction of that State.