1. Application and Interpretation
1.1 These Web Development Terms & Conditions ("Agreement") are between Digital Node and you for provision of web related services as described below.
1.2 You acknowledge that you have read, understood and agreed to these Web Development Terms & Conditions, and agree to be bound by them. Your continued receipt or use of the services indicates your agreement to these Web Development Terms & Conditions.
The following definitions shall apply:
Materials: Any content, digital or otherwise provided by you to Digital Node to be used in the work carried out.
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 Digital Node, (where applicable).
2. Services
2.1 Digital Node shall provide design and development related services, and perform its obligations, in accordance with your supplied quote.
2.2 Digital Node shall provide the services in accordance with your quote and this Agreement and any time-frames set out therein shall be considered estimates only.
3. Customer responsibilities
3.1 You shall be responsible for the accuracy and completeness of the Materials.
3.2 Digital Node shall not be liable for any delays resulting from your failure to fulfil any of your obligations. Digital Node reserves the right to invoice you for any additional expenses reasonably incurred by Digital Node as a result of such delays.
3.3 You acknowledge that the ability of Digital Node 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 Digital Node with access to, and use of, all information, data and documentation reasonably required by Digital Node for its performance of its obligations.
4. Charges and payment
4.1 Digital Node shall issue invoices in respect of the charges and frequency set out in your quotation. The charges payable for the services, whether recurring or not, are set out in your quotation.
4.2 The Charges shall be payable in Australian dollars within 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 Digital Node. 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 quotation), 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 Digital Node an additional amount equal to value of consideration for the supply multiplied by the prevailing GST rate.
4.5 Digital Node may set off any amounts due and payable under this Agreement against amounts that may be payable by Digital Node to you.
4.6 Digital Node reserves right to charge interest on overdue amounts at annual rate of 5% over Reserve Bank of Australia base rate ruling on due date.
4.7 Digital Node 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 Digital Node 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 quotation.
5. Variations and Cancellations
5.1 You may change the Services by notifying Digital Node in writing. Your new Service will take effect from the date Digital Node commences provision of the new Services in accordance with the terms agreed in writing by Digital Node. 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 Digital Node 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 Digital Node 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 Digital Node as part of registration process). Where change relates to an increase in Charges, Digital Node 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 Digital Node shall perform the Services with reasonable care and skill.
6.3 This Agreement sets out the full extent of Digital Node'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.
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. Digital Node 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, Digital Node 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 Digital Node 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, and in Australia, to extent permitted by Trade Practices Act 1974 (Cth), Digital Node'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.
7.4 Without limiting foregoing, you agree that in no event shall Digital Node's maximum aggregate liability exceed AUD$10,000.00.
7.5 You shall indemnify Digital Node, its employees 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.
7.6 You acknowledge that the service provided is of such a nature that service can be interrupted for many reasons other than the negligence of the company and that damages resulting from any interruption of service are difficult to ascertain. Therefore, you agree that the company shall not be liable for any damages arising from such causes beyond the direct and exclusive control of the company. You further acknowledge that the company's liability for its own negligence may not in any event exceed an amount equivalent to charges payable by you for services during the period damages occurred. In no event shall the company be liable for any special or consequential damages, loss or injury.
8. Intellectual property rights
8.1 Digital Node 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 ("Digital Node IP"). Unless agreed otherwise in writing, Digital Node shall be entitled to claim authorship for work which it is responsible.
8.2 Digital Node licenses to you the right to access the Digital Node 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 Digital Node's 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 Digital Node 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 Digital Node 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 Digital Node 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, Digital Node reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. Notwithstanding, Digital Node shall not be deemed to have any control over the Site or its contents.
9.3 You shall indemnify Digital Node 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 Digital Node may include statement "Powered by Digital Node" on the home page of the Site, together with a hyperlink to the Digital Node website.
10. Term and termination
10.1 This Agreement commences on date Digital Node 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 quotation, unless the parties agree in writing to extend the term of this Agreement.
10.2 Digital Node 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 Digital Node elect to reinstate such suspended Service you shall be responsible for Digital Node's standard re-activation charge.
10.3 On termination or expiration of this Agreement:
(a) Digital Node 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 Digital Node 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 Digital Node 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 Digital Node pursuant to clause 10.2, Digital Node shall:
(a) Upon your request, 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 Digital Node'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 Digital Node may be given by email to address notified by you to Digital Node as part of your registration process. It is your obligation to keep that email address current and correct. You agree that record of Digital Node 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 Digital Node by email ryan@digitalnode.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, Digital Node shall not be relied upon. Notwithstanding, you shall also be bound by policies or guidelines of Digital Node, 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 Queensland, Australia and parties submit to the exclusive jurisdiction of that State.