Terms & Conditions

Our Commitment to you

i) We respect our CLIENT’s confidentiality (Item 7).

ii) We use open source solutions wherever possible. This means no vendor lock-in and software fees are charged at ‘fair and reasonable rates’ or in most cases, fees are not applicable (Item 12.1).

iii) If the CLIENT determines that the agreed deliverables do not comply with the estimate or written agreement to which these terms are attached, Ecoda agrees to carry out any necessary and reasonable modifications without extra charge (Item 19).

iv) If the CLIENT is not happy with our service, the CLIENT is free to move their domain name, website and data in its entirety to another service provider (Item 20.1).

Introduction

This document defines the terms and conditions of our working relationship. Unless otherwise agreed to in writing by both the parties, the terms of this Agreement will commence on the date specified.

All services that The Ecoda Trust trading as Ecoda Pty Ltd (referred to as ECODA) may be contracted to produce or provide for CLIENTS (referred to as CLIENT) will be subject to the following:

Definitions

As used herein and throughout this Agreement:

“Client” refers to the entity that has agreed to the commencement and payment of a project and that is agreeing to the conditions of this document as part of an agreed contract.

“Agreement” means the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule(s), together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.

“Content” means all materials, information, photography, writings and other creative content.

“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.

“Deliverables” means the services and work product specified in the Proposal to be delivered by Ecoda to the CLIENT, in the form and media specified in the Proposal.

“Services” means all services and the work product to be provided to CLIENT by Ecoda as described and otherwise further defined in the Proposal.

“Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables.

“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 license that permits users to study, change, and improve the software.

“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.

General Terms

1. Authorisation

The CLIENT authorises Ecoda to perform the services outlined in this agreement on the CLIENT’S behalf, which may include, but is not limited to, accessing their hosting account and disk space, creating databases and applications, and submitting the project to search engines.

2. Agreement Scope and Period

Services supplied, costs and rates are limited to what is specifically set forth in an estimate or written agreement. Any additional services will require an additional agreement. We reserve the right to adjust our service and rates after this period.

3. Costs and Fees

Changes and additions outside of the scope of an estimate or written agreement will be quoted and invoiced to the CLIENT. The CLIENT will be advised of all costs, changes and additions before commencement of the additional work. Fees for professional services do not include outside purchases such as, but not limited to, software licensing, copyright licensing, printing, photography, color printouts, laminating, illustrations, shipping and handling or courier service. Expenses are itemized on each invoice. Expenses are subject to GST.

4. Production Schedules

Production schedules will be established and adhered to by both the CLIENT and Ecoda. Where production schedules are not adhered to by the CLIENT, final delivery date or dates will be adjusted accordingly.

Additional costs may be charged for CLIENT delays, if the delays result in an increase in time to manage or deliver the services.

5. Overtime

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. Overtime is defined as between 5.00pm – 9.00am Monday to Friday, all day Saturday, Sunday and public holidays, unless otherwise agreed.

6. Payment

6.1 The CLIENT agrees to pay Ecoda in accordance with the terms specified in each proposal/estimate. The CLIENT will be required to pay 50% of the project cost before commencement of work. Unless otherwise specified, all subsequent balances due are

payable within 7 days

of invoice dates for completion of key stages of the project.

6.2 If the CLIENT fails to pay any invoice, Ecoda reserves the right to withdraw the website and associated materials or refuse completion and/or delivery of work until past due balances are paid. All materials or property belonging to the CLIENT, as well as work performed, may be retained as security until all just claims against the CLIENT are satisfied. Ecoda will charge a late payment fee of 15% per month on the outstanding amount. The CLIENT is responsible for any debt collection fees which may come due.

6.3 In the event of cancellation of the project prior to completion, the CLIENT must pay Ecoda a fee for work completed, based on the contract price and the expenses already incurred.

7. Confidentiality

Ecoda 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 fulfillment 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.

This obligation of confidence will cease to apply in relation to information that Ecoda is required to disclose by any law, or which becomes part of the public domain other than as the result of a breach by Ecoda of its obligations of confidence under this Agreement.

8. Subcontractors

Ecoda reserves the right to assign subcontractors or external suppliers. Any subcontractors or external suppliers will be bound to the terms of this agreement.

9. Promotion

Ecoda is confident that the CLIENT’s expectations will be exceeded and as such is notifying the CLIENT that Ecoda reserves the right to use the CLIENT’s website, associated graphics and any unused ideas and development in the promotion of Ecoda services. The CLIENT agrees to allow Ecoda to retain a credit and link from the footer of the website.

Additional fees will apply if the client requests the removal of credit links or changes the credit links to any other details without prior approval by Ecoda.

10. Copyright

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 Ecoda uses for this project. The CLIENT indemnifies Ecoda 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, Ecoda agrees to assign perpetual and unrestricted copyright to use any materials produced by Ecoda as outlined in this agreement to the CLIENT including exclusive usage rights to unique graphics.

11.2 Ecoda reserves all rights over working and source files. The CLIENT does not have the right to resell, reuse or re-purpose any design or content supplied as part of this agreement unless specified.

11.3 Ecoda reserves all rights to licence (open source) and release all software code including website templates developed under this agreement.

12. Open Source Software

12.1 Ecoda makes extensive use of open source software and components to supply websites and services to the CLIENT. Ecoda will not charge additional licencing fees on open source software.

12.2 The CLIENT indemnifies Ecoda against any loss or damage arising directly or indirectly from any failure of software, including but not limited to plugins, themes and development frameworks, supplied to the CLIENT from date of delivery forward.

12.3 All software and components not developed by Ecoda retain the original licence and terms associated with them. Ecoda cannot assign any rights to the CLIENT and the CLIENT agrees to be bound by the original Author’s terms.

12.4 The CLIENT indemnifies Ecoda against any loss or damage arising directly or indirectly caused by a failure to maintain software including but not limited to updating plugins, themes and development frameworks, supplied to the CLIENT from date of delivery forward, except whereby the CLIENT has entered into a separate agreement with ECODA to maintain those softwares on the CLIENT’s behalf.

13. Force Majeure

Ecoda shall not be deemed in breach of this Agreement if Ecoda is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God, death, illness or incapacity of Ecoda or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Ecoda’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Ecoda shall give notice to the CLIENT of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.

14. Limitation of Liability

The services and the work product of Ecoda are sold “as is.” In all circumstances, the maximum liability of its Designers, Directors, Officers, Employees, Contractors, Subcontractors, Design Agents and Affiliates (“Ecoda 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 Ecoda 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 Ecoda even if Ecoda has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.

15. Termination

Either party may terminate this Agreement by giving 30 days written notice to the other of such termination. In the event that work is postponed or terminated at the request of the CLIENT, Ecoda 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.

If additional payment is due, this shall be payable within fourteen days of the CLIENT’s written notification to stop work. In the event of termination, the CLIENT shall also pay any expenses incurred by Ecoda and Ecoda shall own all rights to the work. The CLIENT shall assume responsibility for collection of all legal fees necessitated by default in payment.

16. Domain Names

16.1 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 Ecoda manage the domain name(s) on behalf of the CLIENT. Ecoda will invoice the CLIENT when fees are due.

16.2 Ecoda uses Blue Sky Hosting (referred to as REGISTRAR) to manage our CLIENTS’s domain names. CLIENTS are bound by the REGISTRARS’s “Terms & Conditions” which are found on their website: www.blueskyhosting.com.au

16.3 The CLIENT indemnifies Ecoda against any loss or damage arising directly or indirectly from any failure of services provided by the REGISTRAR.

17. Hosting

17.1 The CLIENT is responsible for contacting the chosen host for support relating to hosting matters. Ecoda will charge for costs incurred liaising with the hosting company and supporting the CLIENT with hosting related issues.

17.2 Ecoda will charge for costs incurred due to differences in hosting environment if installation and management exceeds standard time frames.

18. Browser Variance

18.1 Our websites are optimised for XHTML and/or HTML5 compliant browsers and adjusted to support Internet Explorer (IE). We test using the browsers that are statistically the most commonly used at the time of project commencement.

Layout and aesthetic elements may change or degrade in some browsers. Websites are tested on

  • IE 8 and the Latest version of Internet Explorer (PC)
  • Latest version of Firefox (PC and Mac )
  • Latest version of Safari (PC and Mac )
  • Latest version of Chrome (PC and Mac )

Ecoda will test and optimise for additional browsers and versions if requested by the CLIENT before commencement of the project at an additional cost.

18.2 The CLIENT indemnifies ECODA from loss or damage arising directly or indirectly from display issues that may be caused by browser updates post project launch.

18.3 Additional costs will be incurred to correct display issues caused by browser updates post project launch.

19. Display Devices and Mobile Compatibility

19.1 Our websites are tested for display compatibility upon the following devices

  • Macintosh PC – Mountain Lion and above – screen resolution larger than 1024 x 768
  • Windows PC – Vista and above– screen resolution larger than 1024 x 768

19.2 Unless specified in the original estimate or written agreement ECODA will not verify project display and / or functionality on any other mobile devices, including but not limited to mobile phones, smart phones, tablets, iPads, gaming consoles, refrigerators, car dashboards, televisions or any other internet or wifi enabled device.

19.3 Where specified in the original estimate or written agreement ECODA will verify project display and / or functionality as at time of project commencement on

  • The 2 latest versions of iPhone
  • The 2 latest versions of iPad
  • The latest version of iPad mini

19.4 Additional display protocols can be verified upon supply of the required devices.

20. Testing and Acceptance of the Website

Once the project has, in the opinion of Ecoda been completed, Ecoda will notify the CLIENT either verbally or 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 the original estimate or written agreement, Ecoda agrees to carry out any necessary and reasonable modifications without extra charge.

21. Website, Data and Security

21.1 Upon the end of this agreement, The CLIENT is free to transfer their website management to another service provider. Ecoda will supply the last backup of the site and associated data at a standard export fee as outlined in our regular fee schedule. Ecoda will provide all required information to transfer the CLIENT’S domain name to a new registrar but actual transfer is a separate project and will require a separate agreement.

21.2 Ongoing Management (see definition) is not included in this agreement and will require an additional agreement.

21.3 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 Ecoda against any loss or damage arising directly or indirectly from website downtime or security breaches.

22. CLIENT Responsibilities

If the CLIENT or an agent of The CLIENT other than Ecoda 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 at our STANDARD or OVERTIME hourly rate, and is an additional cost above the costs outlined in this agreement.

23. Errors and Omissions

It is the CLIENT’s responsibility to check carefully for accuracy in all respects, ranging from spelling to technical illustrations. Ecoda is not liable for errors or omissions. The CLIENT indemnifies Ecoda against any loss or damage arising directly or indirectly from any errors and omissions.

24. Revisions

24.1 Ecoda will provide rounds of revisions as outlined in the estimate or written agreement only.

24.2 Revision to supplied content already applied to the website is the responsibility of the CLIENT. This includes but is not limited to images, media, video, audio, approved graphic elements, text updates, colour changes, font changes or any other stylistic change that differ from the approved design.

24.3 Revisions outside the scope of the original estimate or written agreement will be charged.

25. Copy

All text must be supplied in digital format (TXT, RTF, HTML, MS Word, Open Office).

26. Images

Graphics and photographs are to be supplied in digital format to Ecoda. 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.

27. Branding

All logos and branding must be provided in an industry standard vector format (preferences are: EPS, SVG, Illustrator).

28. Fonts and Colours

28.1 Website visitors use different operating systems, browsers, devices and monitors with different settings. The CLIENT acknowledges that fonts, colours and image quality of websites including graphics and photography may shift between computers and monitors and that it is not the responsibility of ECODA to correct in any way.

28.2 Ecoda designers use ‘web-safe’ fonts. If designs supplied by the CLIENT do not use ‘web-safe’ fonts ECODA cannot guarantee that fonts will render on all operating systems, browsers, devices and monitors correctly. It is the responsibility of the CLIENT to ensure all fonts in supplied artwork are ‘web-safe’ prior to supply.

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