This Terms and Conditions for Services provided by LuxSite to the Client for the performance of the Services described in the Proposal. By accepting the Proposal, the client agrees to be bound by the terms and conditions outlined herein (the “Agreement”).
As used herein and throughout this Agreement:
- Client Content means all materials, information, photography, writings and other creative or technical content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
- Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Australian Copyright Law.
- Deliverables means the services and work product specified in the Proposal to be delivered by LuxSite to Client, in the form and media specified in the Proposal.
- LuxSite Tools means all tools developed and/or utilised by LuxSite in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.
- Final Deliverable means all creative or technical content developed or created by LuxSite, or commissioned by LuxSite, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables as defined in the Proposal.
- Final Deliverables means the final versions of Deliverables provided by LuxSite and accepted by Client.
- Preliminary Works means all artwork and code including, but not limited to, concepts, sketches, visual presentations, web applications or other alternate or preliminary designs and documents developed by LuxSite and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.
- Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
- Services means all services and the work product to be provided to Client by LuxSite as described and otherwise further defined in the Proposal.
- Third Party Materials means proprietary third party materials, which are incorporated into the Final Deliverables, including without limitation stock photography or illustration and plugins.
- PROPOSAL / ESTIMATE / QUOTATION
The terms of the Proposal shall be effective for 30 days after presentation to Client. In the event the Proposal is not approved by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
- Estimate A preliminary projection of cost which is not intended to be binding. Estimates are based upon prevailing wages, the anticipated hours of work, and cost of materials necessary to produce work in accordance with preliminary copy, style, and specifications. An estimate is not binding upon LuxSite unless a firm quotation has been issued.
- Quotation A quotation is a fixed price for producing a given project. A quotation is firm unless otherwise specified. Quotations are subject to acceptance within 30 days and are based on the cost of labour and materials on the date of the quote. If changes occur in the cost of materials, labour, or other costs prior to acceptance, the right is reserved to change the price quotes. Subsequent projects will be subject to price revision if required. Quotations do not include alterations or applicable sales tax unless otherwise specified.
- FEES AND CHARGES
- Fees In consideration of the Services to be performed by LuxSite, Client shall pay to LuxSite fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
Client shall pay LuxSite’s expenses incurred in connection with the Project as follows:
(a) incidental and out-of- pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost plus LuxSite’s standard mark-up of 30%, and, if applicable, a mileage reimbursement at $1.50 per km; and
(b) travel expenses including transportation, meals, and lodging, incurred by LuxSite with Client’s prior approval.
- Additional Costs The Project pricing includes LuxSite’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees, purchase of plugins or other web resources, will be billed to Client unless specifically otherwise provided for in the Proposal.
- Invoices All invoices are payable within 15 days of receipt, unless otherwise specified. An annual 10% interest is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. LuxSite reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes.
- CHANGES AND DELAYS
- General Changes Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at LuxSite’s standard hourly rate. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. LuxSite may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.
- Substantive Changes If Client requests or instructs Changes that amount to a revision of at least 15% of the time required to produce the Deliverables, and or the value or scope of the Services, LuxSite shall be entitled to submit a new and separate Proposal to Client for approval. LuxSite is not obliged to initiate the work on the revised services until a revised Proposal and, if required, any additional retainer fees are received by LuxSite.
- Timing LuxSite will prioritise performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to LuxSite. LuxSite shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that LuxSite’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or LuxSite’s obligations under this Agreement.
- Testing and Acceptance LuxSite will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within 5 business days of receipt of each Deliverable, shall notify LuxSite, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and LuxSite will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
- An additional fee to cover rescheduling costs may be charged by LuxSite if the client delays a Project after commencement.
- Should the Client be unresponsive for more than 30 consecutive days after last correspondence and shows no interest in pursuing the Project any further, the Project shall be considered completed as is. The Client shall cover all the incurred costs and any upfront payments shall not be refunded. The Client may decide to revive the Project at a later stage, in which case a new Proposal shall be presented.
- CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:
(a) coordination of any decision-making with parties other than the LuxSite;
(b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and
(c) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.
(d) client will provide a single point of contact for all amends and changes.
(e) changing and updating all the passwords and login details to all websites and systems where access to LuxSite was provided during the project. LuxSite is not liable for any unauthorised access after project completion.
- ACCREDITATION / PROMOTIONS All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in LuxSite’s name in the form, size and location as incorporated by LuxSite in the Deliverables, or as otherwise directed by LuxSite. LuxSite retains the right to reproduce, publish and display the Deliverables in LuxSite’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. LuxSite has the right to display Client’s Project in any shape or form, including but not limited to showing and explaining the processes involved, photos, videos, screenshots, quotes, mistakes and corrections, descriptions and comments. A link back to LuxSite’s website shall also be included on Client’s website, unless otherwise specifically agreed.
- CONFIDENTIAL INFORMATION Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party (“Confidential Information”). LuxSite may publish Preliminary Works on social media and/or website without any Confidential Information. Each party, its subcontractors and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
- RELATIONSHIP OF THE PARTIES
- Independent Contractor LuxSite is an independent contractor, not an employee of Client or any company affiliated with Client. LuxSite shall provide the Services under the general direction of Client, but LuxSite shall determine, in LuxSite’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorised to act as agent or bind the other party except as expressly stated in this Agreement. LuxSite and the work product or Deliverables prepared by LuxSite shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
- LuxSite’s Subcontractors LuxSite shall be permitted to engage and/or use subcontractors in connection with the Services (“Subcontractors”).
- No Solicitation During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any LuxSite employee or Subcontractor of LuxSite, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that LuxSite shall be entitled to an agency commission to be the greater of, either (a) 25 percent of said person’s starting salary with Client, or (b) 25 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. LuxSite, in the event of non-payment and in connection with this section, shall be entitled to seek all remedies under law and equity.
- No Exclusivity The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by LuxSite, and LuxSite shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by LuxSite.
- WARRANTIES AND REPRESENTATIONS
- By Client
Client represents, warrants and covenants to LuxSite that
(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,
(b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any trademarks in connection with the Project does not and will not violate the rights of any third parties,
(c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and
(d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
- By LuxSite
(a) LuxSite hereby represents, warrants and covenants to Client that LuxSite will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
(b) LuxSite further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of LuxSite. (ii) In the event that the Final Deliverables include the work of independent contractors commissioned for the Project by LuxSite, to the best of LuxSite’s knowledge, the Final Art provided by LuxSite or LuxSite’s Subcontractors does not infringe the rights of any party and is LuxSite’s or Subcontractor’s original work.
(c) Except for the express representations and warranties stated in this agreement, LuxSite makes no warranties whatsoever, LuxSite explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the project.
d) All Final Deliverables shall have a limited 30-day warranty.
e) The Client shall inspect the website or system developed by LuxSite in 30 days after the testing stages that are completed prior to live launch. Should the website or system fail after 30 days, LuxSite reserves the right to charge any maintenance on per hour basis.
- By Client
- INDEMNIFICATION / LIABILITY
- By Client
Client agrees to indemnify, save and hold harmless LuxSite and its Subcontractors from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement, including but not limited to any and all losses, costs, expenses, and damages (including court costs and reasonable attorney fees) on account of any and all manner of claims, demands, actions, and proceedings that may be instituted against LuxSite and their Subcontractors on grounds alleging that LuxSite or their Subcontractors unknowingly violated any copyrights or any proprietary right of any person. Under such circumstances LuxSite shall promptly notify Client in writing of any claim or suit;
(a) Client has sole control of the defence and all related settlement negotiations; and
(b) LuxSite provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by LuxSite in providing such assistance.
- By LuxSite
Subject to the terms, conditions, express representations and warranties provided in this Agreement, LuxSite agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with LuxSite’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that
(a) Client promptly notifies LuxSite in writing of the claim;
(b) LuxSiteshall have sole control of the defence and all related settlement negotiations; and
(c) Client shall provide LuxSite with the assistance, information and authority necessary to perform LuxSite’s obligations under this section. Notwithstanding the foregoing, LuxSite shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorised content, improper or illegal use, or the failure to update or maintain any Deliverables provided by LuxSite.
- Limitation of Liability
The services and the work product of LuxSite are sold “as is.” In all circumstances, the maximum liability of LuxSite, its directors, officers, employees, Subcontractors and affiliates (“LuxSite Parties”), to client for damages for any and all causes whatsoever, and client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of LuxSite for that particular Project. In no event shall LuxSite 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 LuxSite, even if LuxSite has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
- By Client
- TERM AND TERMINATION
- This Agreement shall commence upon the Effective Date as defined in the Proposal and shall remain effective until the Services are completed and delivered.
- This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:
(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 10 days from receipt of written notice of such breach.
- In the event of termination, LuxSite shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by LuxSite or LuxSite’s subcontractors as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
- In the event of termination by Client and upon full payment of compensation as provided herein, LuxSite grants to Client such right and title as provided for in the Proposal with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
- Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that LuxSite’s invoices may include, and Client shall pay, expenses or costs that Client authorises by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt.
- No Assignment
Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
- Force Majeure
LuxSite shall not be deemed in breach of this Agreement if LuxSite is unable to complete the Services or any portion thereof by reason of fire, earthquake, labour dispute, act of god or public enemy, death, illness or incapacity of LuxSite, including electricity/power, internet and phones failure or any other technological error that is out of LuxSite’s control or any local, state, federal, national or international law, governmental order or regulation or any other event beyond LuxSite’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, LuxSite shall give notice to 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.
- Governing Law and Dispute Resolution
The formation, construction, performance and enforcement of this Agreement shall be in accordance with Australian laws and the state of NSW, without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of NSW. The parties hereby waive any jurisdictional or venue defences available to them and further consent to service of process by mail. Client acknowledges that LuxSite will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that LuxSite shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control.