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Web Design and Development

Web Design & Development Terms & Conditions

1. Application and Interpretation

1.1 These Web Design & Development Terms & Conditions (“Agreement”) are between Fluid Flow Studios Pty Ltd (ABN 96 145 924 116) (“Fluid Flow Studios”) and you for provision of web design and development and related services described below.

1.2 You acknowledge that you have read, understood and agreed to these Web Design & Development Terms & Conditions, and agree to be bound by them. Your continued receipt or use of the Services indicates your agreement to these Web Design & Development Terms & Conditions, together with the Fluid Flow Studios Master Services Terms & Conditions located at http://fluidflow.com.au/terms-service. If there is any inconsistency between the provisions of these Web Design & Development Terms & Conditions and the Master Services Terms & Conditions, the latter will prevail to the extent of any inconsistency.

1.3 The following definitions shall apply:

Materials: content provided to Fluid Flow Studios by you from time to time for incorporation in the Site.

Site: 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: software for the Site commissioned by you independently of Fluid Flow Studios, (where applicable).

2. Services

2.1 Fluid Flow Studios shall provide web design and development and related services, and perform its obligations, in accordance with your Proposal document (“Services”).

2.2 Fluid Flow Studios shall provide the Services in accordance with your Proposal document and this Agreement and any timeframes set out therein shall be estimates only and time for performance shall not be of the essence.

3. Customer responsibilities

3.1 You shall be responsible for the accuracy and completeness of the Materials.

3.2 Fluid Flow Studios shall not be liable for any delays resulting from your failure to fulfil any of your obligations. Fluid Flow Studios reserves the right to invoice you for any additional expenses reasonably incurred by Fluid Flow Studios as a result of such delays.

3.3 You acknowledges that the ability of Fluid Flow Studios 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, and any other information and data provided by you or on your behalf.

3.4 You shall provide Fluid Flow Studios with access to, and use of, all information, data and documentation reasonably required by Fluid Flow Studios for its performance of its obligations.

4. Charges and payment

4.1 Fluid Flow Studios shall issue invoices in respect of the Charges and frequency set out in your Proposal document. The Charges payable for the Services, whether recurring or not, are set out in your Proposal document.

4.2 The Charges shall be payable in Australian dollars within seven (7) days of the date of the invoice or on such other payment terms set out therein and must be made by one of the methods outlined in the invoices provided by Fluid Flow Studios. All deposits or advanced payments are non-refundable.

4.3 You remain committed to pay us 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) such Services have been changed or cancelled during such invoicing period.

4.4 Unless otherwise stated, all Charges and other amounts payable are exclusive of GST. If GST becomes payable on any supply made or provided, on which GST is not payable at the date of this Agreement, you will pay Fluid Flow Studios an additional amount equal to value of consideration for the supply multiplied by the prevailing GST rate.

4.5 Fluid Flow Studios may set off any amounts due and payable under this Agreement against amounts that may be payable by Fluid Flow Studios to you.

4.6 Fluid Flow Studios reserves right to charge interest on overdue amounts at annual rate of 2% over Reserve Bank of Australia base rate ruling on due date.

4.7 Fluid Flow Studios may by notice to you suspend work, and your use of and access to Services (including public access to your web content), 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.

4.8 Invoices may only be disputed by you by providing Fluid Flow Studios with written details of the dispute within fourteen (14) days of the date of the invoice, failing which the invoice shall be deemed to have been accepted by you. You shall remain liable to make payment of any undisputed portions of an invoice.

4.9 Additional charges shall be payable for out-of-scope work, that is work not otherwise expressly set out in your Proposal document.

5. Variations and Cancellations

5.1 You may change the Services by notifying Fluid Flow Studios in writing. Your new Service will take effect from the date Fluid Flow Studios commences provision of the new Services in accordance with the terms agreed in writing by Fluid Flow Studios. Your next invoice will reflect: (a) Charges applicable to your new Service from the date of the notice; (b) Charges for any remaining invoice period for your previous Service(s) (whether or not such Service(s) are utilised during such remaining invoice period); (c) Charges for amounts then due but unbilled for your previous Service(s); and (d) Charges for costs associated with any Service change or cancellation, where such costs are based on the standard rates of Fluid Flow Studios 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.

5.2 Fluid Flow Studios may change this Agreement by giving you written notice (whether by email, fax or post to designated email address, fax number or postal address, notified by you to Fluid Flow Studios as part of registration process). Where change relates to an increase in Charges, Fluid Flow Studios shall provide you with thirty (30) days; prior written notice.

6. Warranties

6.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform this Agreement.

6.2 Fluid Flow Studios shall perform the Services with reasonable care and skill.

6.3 This Agreement sets out the full extent of Fluid Flow Studios 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.

7. Liability

7.1 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. Fluid Flow Studios 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.

7.2 To extent permitted by law, Fluid Flow Studios, 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; (b), 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 (c) 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.

7.3 This does not affect liability of Fluid Flow Studios 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, Fluid Flow Studios 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.

7.4 Without limiting foregoing, you agree that in no event shall Fluid Flow Studios maximum aggregate liability exceed AUD$5,000.00.

7.5 You shall indemnify Fluid Flow Studios, its directors and representatives from and against all actions, claims, damages, liabilities or costs (including legal costs) arising from, or directly or indirectly related to provision of Materials or Site Software, use of Services or Site by you or anyone else, or otherwise arising as result of this Agreement.

8. Intellectual property rights

8.1 Fluid Flow Studios retains copyright and all other intellectual property rights in: (a) 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 (b) all intellectual property rights existing prior to commencement of such Services (“Fluid Flow Studios IP”). Unless agreed otherwise in writing, Fluid Flow Studios shall be entitled to claim authorship for work which it is responsible.

8.2 Fluid Flow Studios licenses to you the right to access the Fluid Flow Studios IP on a non-exclusive basis to such extent as is necessary to enable you to make reasonable use of the relevant Services for the duration of the Agreement.

8.3 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 8.2 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 Fluid Flow Studios right to access same and its ability to pass on such rights to you.

8.4 In relation to the licence in clause 8.2 and the right to access in clause 8.3: (a) they will both automatically terminate if this Agreement ends; and (b) they do not include the right to replicate, commercialise, adapt, modify, reverse engineer, decompile or disassemble in whole or in part.

8.5 Subject to clauses 8.2, 8.3 and 8.4, you shall retain copyright in the Materials and you grant Fluid Flow Studios a licence to use same to extent required to perform its obligations herein.

8.6 In relation to any data, content, information or material provided by you to us (including Materials and Site Software), you warrant that same will not infringe the rights of any third party nor contravene any law or industry code.

8.7 Save as required by law, you shall not disclose any confidential information relating to Fluid Flow Studios or its affiliates obtained during or arising out of this Agreement, to anyone (except your employees on an as need basis). You shall procure that anyone else receiving benefit of Services, whether employees or otherwise, comply with terms of this clause as if they were a party to Agreement.

9. Site content

9.1 You shall ensure that Materials do not infringe any applicable laws, regulations, industry codes or third party rights (such as material which is obscene, indecent, pornographic, offensive, defamatory, threatening, liable to incite racial hatred or in breach of any third party intellectual property rights) (“Inappropriate Content”).

9.2 You acknowledge that Fluid Flow Studios 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, Fluid Flow Studios reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. Notwithstanding, Fluid Flow Studios shall not be deemed to have any control over the Site or its contents.

9.3 You shall indemnify Fluid Flow Studios against all damages, losses and expenses arising as a result of any action or claim that the Materials or any other material posted to, or linked to, the Site constitutes Inappropriate Content.

9.4 Fluid Flow Studios may include statement “Powered by Fluid Flow Studios” on the home page of the Site, together with a hyperlink to the Fluid Flow Studios website.

10. Term and termination

10.1 This Agreement commences on date Fluid Flow Studios 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.

10.2 Fluid Flow Studios 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.

Should Fluid Flow Studios elect to reinstate such suspended Service you shall be responsible for Fluid Flow Studios’s standard re-activation charge.

10.3 On termination or expiration of this Agreement:

(a) Fluid Flow Studios 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 Fluid Flow Studios 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 Fluid Flow Studios under this Agreement (including those referred to in clauses 8.2 and 8.3) shall terminate immediately.

10.4 Following expiry or termination of this Agreement otherwise than on termination by Fluid Flow Studios pursuant to clause 10.2, Fluid Flow Studios shall:

(a) return to you all Materials, and shall provide to you an electronic copy of the Site (including all content on the Site).

(b) provide such assistance as is reasonably requested by you, subject to payment of Fluid Flow Studios’s expenses reasonably incurred.

11. Force majeure

11.1 The definition in this clause applies in this Agreement. 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).

11.2 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.

12. Notices

12.1 All notices given by Fluid Flow Studios may be given by email to address notified by you to Fluid Flow Studios as part of your registration process. It is your obligation to keep that email address current and correct. You agree that record of Fluid Flow Studios having sent a notice to you by email is, of itself, conclusive proof of receipt.

12.2 Notices given by you must be delivered to Fluid Flow Studios in writing and addressed to: P.O. Box 7191, Mt Annan NSW 2567, Australia (with copy by email to info@fluidflow.com.au).

13. Entire agreement

This Agreement, and documents referred to herein, contains entire understanding between parties as to its subject matter and supersedes and excludes all prior and other discussions, specifications, representations and arrangements relating to Services including, but not limited to, those relating to performance or results that ought be expected from using Services. Any representations (oral or written) given by, or on behalf of, Fluid Flow Studios shall not be relied upon. Notwithstanding, you shall also be bound by policies or guidelines of Fluid Flow Studios, situated at this link, as updated from time to time.

14. 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 New South Wales, Australia and parties submit to the exclusive jurisdiction of that State.

Last updated 21 July 2014