These terms and conditions (Terms & Conditions) shall govern the provision of all goods and/or services by RedWeb.
1. TERMS OF AGREEMENT
- An Agreement in respect of any Work or proposed Work shall constitute the entire agreement between RedWeb and the Client in respect of such Work or proposed Work and shall supersede any prior written or oral agreements, arrangements or understanding between the parties relating to such Work or proposed Work.
- In the event of any inconsistency in an Agreement between these Terms & Conditions and a relevant Proposal, the terms of the Proposal shall prevail to the extent of the inconsistency.
- In the event of any inconsistency between these Terms & Conditions and any terms of trade or ordering customarily adopted by the Client (including the terms of any order form used by the Client) these Terms & Conditions shall prevail.
- Any amendment to any part of these Terms & Conditions or a Proposal must be made in writing.
- Unless otherwise stated in writing, prices for Work or proposed Work contained in any Proposal or Work Instructions are exclusive of GST.
- Prices for Work or proposed Work contained in any Proposal or Work Instructions shall be taken to be an estimate unless they are stated to be an quotation.
- Prices contained in quotations are valid for 90 days; however RedWeb may amend a quotation prior to acceptance in the event of any increase in the cost of relevant products or services supplied by third parties.
- In the event of any increase in the cost of relevant goods or services supplied by third parties after acceptance of a quotation by the Client RedWeb may pass that increase on to the Client.
- Where a Work Instruction has been given verbally, RedWeb will use its best endeavours to produce Work Product in accordance with that instruction. However RedWeb shall not be responsible for any changes required by the Client to such Work Product and such changes shall be deemed to be Variations and chargeable as such.
- RedWeb may outsource to third party suppliers the supply of certain goods or services (for example: photography, printing, advertising and manufacturing). The price charged by RedWeb to the Client in relation to these goods and/or services may exceed the price of supply negotiated by RedWeb with the original manufacturer or supplier of the products and/or services.
3. INVOICING AND PAYMENT
- Unless otherwise agreed in writing in a relevant Proposal or Work Instruction, RedWeb may issue invoices to the Client: (a) fortnightly; (b) upon the completion of a milestone; and/or (c) at its discretion in the event the value of the Work then undertaken exceeds the credit limit.
- The Client shall be responsible for all legal and collection costs of RedWeb incurred in relation to overdue invoices.
4. TITLE, POSSESSION, DELIVERY AND RISK
- Ownership of and title in Work Product remains with RedWeb until RedWeb receives payment of all amounts due in respect of that Product (notwithstanding any earlier delivery to, or possession by, the Client of such Work Product).
- Unless otherwise specified in writing in a relevant Proposal or Work Instruction, or unless RedWeb has agreed to grant credit terms to a relevant Client, RedWeb may retain possession of any Work Product until it has received payment in full for such Work Product.
- Subject to clause 4.2, in respect of Work Product which does not comprise tangible goods, RedWeb may notify the Client that such Work Product is complete and available for transmission and/or handover to the Client by appropriate means.
- Delivery of any item of Work Product will be deemed to have occurred in the event that clause
- applies, upon the date upon which the notice is given.
- Risk in respect of any item of Work Product passes upon delivery or deemed delivery in accordance with clause
5. TIME FOR DELIVERY
- Delivery of Work Product shall be made in accordance with any relevant provision in any Proposal or Work Instruction or, if there is no such provision, within a reasonable time.
- RedWeb shall not be responsible for delivery delays resulting from Variations or payment delays by the Client.
- Any claim by the Client relating to the quality or any other aspect of any Work Product must (subject to any contrary right given to a consumer by the Australian Consumer Law) be made in writing within 7 days of collection of the Work Product by, or actual delivery of the Work Product to, the Client.
- Any claim by the Client relating to the amount of any invoice or part thereof must be made in writing within 14 days of the invoice date.
7. INTELLECTUAL PROPERTY
- The Client warrants that no text or imagery supplied by the Client to RedWeb for the purposes of Work or proposed Work will breach any law (written or unwritten) or infringe any intellectual property right of any third party or result in RedWeb otherwise becoming liable to any third party.
- Where the Client has informed RedWeb of the intended use of Work Product, the Client warrants the accuracy of such information.
- RedWeb will not, in the creation or production of Work Product for the Client, knowingly infringe any other person’s intellectual property rights. However RedWeb does not warrant that anything that it utilizes in the creation or production of Work Product for a client, or embodied in the Work Product created or produced for a Client, does not infringe any other person’s intellectual property rights.
- If Work involves photographs being created by RedWeb on behalf of the Client, then the Client will own full usage rights for such photographs upon receipt of payment in full for the Work Product in which the photographs were used. If Work involves photographs being commissioned from third parties, then usage rights for such photographs shall be governed by the terms under which those photographs are supplied by the third parties.
- Unless otherwise disagreed in writing, the Client grants to RedWeb standard authorship acknowledgement and permission to use its Work Product to promote its services. In relation to digital presentations and web-based systems or sites designed or developed by RedWeb, the authorship acknowledgement includes hyperlink(s) to RedWeb’s designated website.
8. WEBSITES AND WEB-BASED SYSTEMS
- Unless otherwise stated in a relevant Agreement, websites and related systems designed by RedWeb are transportable and may be moved to another hosting provider upon receipt of full payment for the relevant Work Product. To enable the Client to copy or move a website RedWeb shall, upon request by the Client, provide in a timely manner either: a digital copy of the complete website; or FTP access details for the host-server to enable the Client to arrange copying or moving the website.
- RedWeb will make reasonable efforts to propose a hosting plan that is appropriate to the Client’s needs as communicated to RedWeb by the Client in writing. However, it is the Client’s responsibility to ensure that any proposed hosting plan is acceptable and appropriate to its needs. RedWeb is unable to predict exact disk space needs or potential data transfer generated by a website.
- Where RedWeb provides hosting services for a Client, those services are subject to RedWeb’s hosting terms and conditions and acceptable use policy, available on request. Those terms and conditions and policy shall, to the extent of any inconsistency, prevail over these Terms & Conditions.
- The Client acknowledges and agrees that RedWeb is in the business of designing and hosting websites and that RedWeb will have the right to provide to third parties services which are the same or similar to services provided to the Client and to use or otherwise exploit any Author Materials in providing such services.
- Unless otherwise stated in a website proposal, pricing only includes bug-fixes and support for up to 1 months (30 days) after the site is live. Any further fixes or support after this time will be charged on an hourly basis. All fixes required as a result of client edits/errors in the CMS will be chargeable.
9. MATERIALS SUPPLIED BY CLIENTS
- All materials (logos, images, text or other material) supplied by the Client must be of a quality and to the specifications required by RedWeb. Additional costs apply for any additional Work required to be performed to attain such quality or specifications.
- RedWeb and the Client must agree on deadlines for delivery of materials to be supplied by the Client. The Client will be responsible for all costs incurred by RedWeb in the loss of production time due to such deadlines not being met by the Client or due to the materials supplied not being of a quality or to the specifications required by RedWeb.
- RedWeb accepts no responsibility for imperfect work caused by defects in or the unsuitability of materials supplied by the Client.
10. WARRANTIES AND LIMITS OF LIABILITY
- Subject to clause 10.3 and to the maximum extent permissible by law, RedWeb excludes: (a) all conditions, warranties, duties and rights implied by statute relating to the supply of any goods and services under or in respect of an Agreement or otherwise; and (b) all liability to the Client for any acts or omissions of RedWeb in tort (including negligence), contract or otherwise resulting in costs, losses, liabilities or damage suffered by the Client.
- RedWeb gives no representation, warranty or guarantee whatsoever as to the success or effectiveness of, or the results that may be achieved by Work Product, including, but not limited to, any branding, marketing, advertising material or web-based solutions that RedWeb develops for the Client. The Client acknowledges that it is responsible for the content of all Work Product and ensuring that the Work Product and any solutions developed by RedWeb are adequate and appropriate for its needs.
- In the event that the supply of goods and/or services to the Client is a supply of goods or services to a consumer as defined in the Australian Consumer Law, nothing contained in these Terms & Conditions excludes, restricts or modifies in relation to such services the consumer guarantees provided therein provided that to the extent that the Australian Consumer Law permits RedWeb to limit its liability for a breach of a consumer guarantee, then RedWeb’s liability for such breach will be limited to: (a) in the case of the supply of goods: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; and/or (iv) the payment of the cost of having the goods repaired; and (b) in the case of the supply of services: (i) the supplying of the services again; or (ii) the payment of the cost having the services supplied again.
- The exclusions and releases in these Terms & Conditions extend, to the maximum extent permissible by law, to loss of profits or anticipated proceeds from sales or marketing or any other indirect or consequential damage and to economic loss and even if RedWeb knows such loss or damage is possible or foreseeable.
11. FORCE MAJEURE
Work may be suspended or cancelled by RedWeb in the event of any strike, lockout, trade dispute, fire, tempest, breakdown, riot, theft, crime, civic disturbances, war, legislation, Act of God or any other cause beyond the control of RedWeb and no responsibility will be attached to RedWeb for any delay, loss or damage occasioned thereby.
12. ELECTRONIC STORAGE
- Unless otherwise agreed in writing, RedWeb shall have no responsibility to archive, store or otherwise maintain a record of Work Product once that Work Product has been delivered to the Client. In the event that, notwithstanding the above, RedWeb is asked to search for and, if found, re-supply such a record to the Client, RedWeb will have the right to charge for such services.
- If RedWeb is provided with data on storage devices by the Client, RedWeb will assume that such storage devices contain duplicate copies of material stored elsewhere and shall accept no responsibility for the loss of data which may occur during the handling of such storage devices.
The Client shall indemnify and hold RedWeb harmless from and against, all costs, losses, charges, expenses, liabilities, damages, fees and disbursements (including all reasonable legal costs) paid or incurred by RedWeb in respect of or incidental to: (a) any claim, action, demand or proceeding by any third party in connection with Work undertaken or Work Product created or produced for the Client, including without limitation any alleged infringement of intellectual property rights arising from such Work or Work Product ; and (b) the recovery of amounts owed to RedWeb by the Client. This indemnity survives termination of this Agreement.
14. NO WAIVER
A waiver by RedWeb of any provision of these Terms & Conditions shall not operate as a waiver of any other provision of these Terms & Conditions.
If any provision in these Terms & Conditions, or if the application of any such provision to any person or circumstances, is invalid or unenforceable, the remaining provisions of these Terms & Conditions are not affected and each such remaining provision is valid and enforceable to the fullest extent permitted by law.
16. GOVERNING LAW
This Agreement is governed by the laws of Western Australia. The Client submits to the nonexclusive jurisdiction of the courts of Western Australia and any courts which may hear appeals from those courts in respect of any proceedings in connection with this Agreement.