TERMS OF SERVICE
The person that the attached “Engagement Letter” is addressed to (“you” and “your”) engages Looksee Design (ABN 77 108 701 88) (“Looksee Design”,"Looksee", “we”, “our” and “us”) to provide the Services, and we agree to provide the Services as described in the Engagement Letter in accordance with these “Terms of Service” (together with any annexures, the “Agreement”).
1.1 In this Agreement, terms defined in the Engagement Letter have the same meaning in these Terms of Service unless the context requires otherwise, and in this Agreement:
(a) Completion Date means either the date the Website goes live or the date agreed for our delivery of the Work (additional time may need to be allowed for beyond the Completion Date, where we are engaging a third party service provider, such as a printer etc).
(b) Confidential Information means:
(i) all information (regardless of its form) relating to the business of a party to this Agreement or its officers,
employees, agents or contractors, which may be disclosed to, or learnt by the other party (whether before or after the execution of this Agreement) and which information:
(A) is by its nature confidential;
(B) is treated, or has been identified, as confidential; or
(C) would reasonably be regarded as confidential;
(ii) all copies, notes and records and all related information generated by the Recipient based on or arising out of the disclosure of the Confidential Information to the Recipient.
(c) Intellectual Property means any and all present and future intellectual and industrial property rights throughout the world including rights in respect of or in connection with any confidential information, copyright (including future copyright and rights in the nature of or analogous to copyright), moral rights, inventions (including patents), trade marks, service marks, designs, and circuit layouts, techniques and know-how, whether or not now existing and whether or not registered or registrable and includes any right to apply for the registration of such rights and includes all renewals and extensions.
(d) Term means the period from the date of this Agreement until the Agreement is terminated in accordance with clause 12 below.
(e) Website means your unique website and all Intellectual Property in connection with the website created, owned, hosted and updated by us and licensed to you in accordance with this Agreement.
(f) Work means any material we deliver to you once you have paid the Fee, including the Website (if any), any logos, designs and copy we create for you, all associated material and Intellectual Property in connection with any material we deliver to you or in connection with the Website (if any) and any logos, designs and copy which is not Client Material.
1.2 In this Agreement, unless an express contrary intention appears:
(a) headings are for convenience only and do not affect the interpretation of this Agreement;
(b) the singular includes the plural and vice versa;
(c) a reference to:
(i) a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;
(ii) a document includes all amendments or supplements to that document; and
(iii) a clause, term, party, schedule or annexure is a reference to a clause or term of, or party, schedule or annexure to this Agreement.
2. Contract for Services
2.1 The Engagement Letter outlines the services that we will provide (the “Services”). Any annexures attached to the Engagement Letter and these Terms of Service form part of the Agreement. If there is any inconsistency between these Terms of Service and the Engagement Letter, these Terms of Service prevail to the extent of that inconsistency.
2.2 If you wish to change the scope of the Services, then the process described in clause 5 below must be followed.
3. Our Design Obligations
3.1 We will use reasonable endeavours to carry out the Services and to ensure that the Work is designed, created, and functions according to the cost estimate.
4. Your Obligations
4.1 All information you supply us, such as text, graphics or other materials that you wish to incorporate into the work we do for you (the “Client Materials”) must be factually correct and must not infringe any laws or the rights of any person.
4.2 You must provide us with clear instructions, and assistance, information, ideas, content, suggestions, feedback and materials which are in your possession or control which we reasonably require to perform the Services.
4.3 Our Services may be supplied in stages and if they are, then you must notify us of your acceptance of each stage. If you don’t notify us of acceptance but ask for us to work on the next stage, you have accepted the preceding stage. After each stage, but before commencement of a new stage, you must notify us in writing that you accept the most recently completed stage of the Services.
4.4 You will pay us the Monthly /Yearly Fee and/or Fee as set out in the Engagement Letter, and upon our invoice. If you cancel or suspend the job, we are still entitled to the Fee in proportion to how much of the job we have finished at that point, and if you are paying a Monthly Fee then you must still pay us the Monthly Fee at the end of the month in which you cancel or suspend the job and your Website will be [taken offline], [redirected away from our hosting] and any rights in relation to the Work will revert to us and any licences to you in relation to the Work will be revoked without notice.
5.1 If you want to vary the scope of our services, and we agree in principle to that, the following procedure applies:
(a) you must provide a detailed explanation of the proposed revisions to the scope of work;
(b) if we agree, we will provide you with a revised cost estimate for the new scope of work;
(c) you can accept the revised estimate by email, which, once accepted, forms a part of this Agreement.
5.2 If you do not request a revision to the scope of work under the procedure above, then we can carry out the revised scope of work at our hourly rates from time to time and you must pay our invoice. (Note that there is an increased rate for work that is urgent or required to be provided outside normal office hours.)
6. Provision of the Services and accceptance of the Work and Website
6.1 We will give you an opportunity to approve the design proof of any logos, copy or other material prepared on your behalf and to review and test an offline version of the Website, prior to the Completion Date.
6.2 Upon receipt of written notice from us (email is sufficient) that the design proofs are complete or that the Website is complete (the “Completion Notice”), you will have 5 days to confirm that portion of the Work has been carried out in accordance with the Engagement Letter.
6.3 If you agree that we have complied with our obligations under this Agreement and properly delivered the Work, you will advise us that the Completion Notice has been accepted or, if you do not provide such notice to us, the Work will be deemed to be accepted 5 days from when we sent you the Completion Notice.
6.4 If you do not agree that the Website complies with the Engagement Letter or other criteria in this Agreement:
(a) you must notify us in writing within 5 days from receipt of the Completion Notice that you do not accept the Work;
(b) you must specify the nature of the defect or deficiency preventing acceptance and what, in your reasonable
opinion, needs to be done in order for the Website to be accepted;
(c) we will use best endeavours to fix that defect or deficiency and resubmit it to you for retesting; and
(d) you will have 7 days to reconsider the Work and then either accept or reject the Work and follow clause 6.4 again,[two more times.]
6.5 If, after having exhausted the process in clause 6.4, the parties do not agree as to whether the Work complies with the Engagement Letter, our decision will be final.
6.6 [Notwithstanding anything else in this Agreement, for a period of thirty  days from the date of acceptance in clause 6.4 we agree to fix without charge, any inherent defect or error in the Work so that the Work complies with the Engagement Letter.]
6.7 [In addition to the design of the Work we can, where requested and subject to your payment of the Monthly/Yearly Fee arrange for hosting and maintenance and/or updates, your Website.]
6.8 Whilst we will take all care to ensure your Website is always operational, functioning properly and properly hosted, we will not be liable for any direct or consequential loss, expenses, liability, loss of profits or damages you suffer as a result of the Website or Website hosting failing to perform as it should in anyway whatsoever.
7. Intellectual Property
7.1 You will retain all your Intellectual Property rights in the Client Materials, but you grant us the right to use them to the extent required under this Agreement.
7.2 Subject to clause 7.3, once you have paid the Fee, you will own the “Work” including copyright in the finished artwork and copy we supply, and, in the case of our digital services, in any code we write specifically for you in relation to a particular project (together “Client IP”). To the extent we have or at any time acquire any right, title or interest in, or in relation to, the Work or the Client IP, we assign it to you.
7.3 To the extent our Background IP is incorporated into the Work, we grant you a non-exclusive, irrevocable, royalty free licence in perpetuity to use our Background IP in the Work. “Our Background IP” means the Intellectual Property owned by or licensed to us, but which was not created for you or for the delivery of the Services and which we make available, contribute, or use in connection with delivery of the Services. (For the avoidance of doubt, this includes the native working files located in conjunction with software we use, such as InDesign, Adobe Creative, Wordpress etc.)
7.4 We will procure that none of our staff asserts against you any so-called “moral rights” of attribution, or against “derogatory treatment”, under the Copyright Act 1968. However, you agree that wherever it is reasonable and practicable to do so, you will credit us as creator of the Work (for example on websites, cards, posters etc.).
7.5 You grant us “portfolio rights” to reproduce, exhibit and communicate the Work to promote our services to the public and to enter the Work in exhibitions, or for submission to, or publication in, awards and associated media, magazines, media platforms and competitions, unless specifically requested by you in writing not to do so.
7.6 Where the Work carried out for you requires you to pay us a Monthly Fee, that portion of the Work subject to a Monthly Fee, will be exclusively licensed to you (“Looksee Design IP”). To the extent you have or at any time acquire any right, title or interest in, or in relation to, the Looksee Design IP, you assign it to us and we licence it back to you.
8. Alterations to Our Background IP and Looksee Design IP
8.1 If Our Background IP and/or Robertson IP is incorporated in the Work, you must not alter it or take it out of the context of Work without our prior written approval. It might be a condition of our approval that we will carry out the alteration, and that we can charge for doing so.
8.2 You must not reverse engineer, disassemble or decompile or otherwise tamper with Our Background IP or the Looksee Design IP.
9. Confidential Information
9.1 The parties must not disclose, or make public any Confidential Information acquired in connection with, or by the performance of, this Agreement (except to professional advisors or as required by law), without obtaining our prior written approval.
9.2 You must immediately on demand, or on the expiration or termination of these Terms, return to us any documents in your possession, power or control containing Confidential Information. You must not retain copies of any Confidential Information in any form.
10. Exclusion and limitation of liability
10.1 We will not be (or be deemed to be) liable for any default, failure or delay resulting from an event, occurrence or cause beyond the control of a party and which occurs without the negligence of that party. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquakes, fire and explosions and will also include delays made by third parties we engage to deliver the Services, such as third party printers and web based hosting companies.
10.2 To the maximum extent permitted by law and save for those express written terms in this Agreement, all other terms (including any implied terms), conditions, warranties, statements, assurances and representations in relation to this Agreement are expressly excluded.
10.3 To the maximum extent permitted by law, all express or implied terms, conditions, warranties, statements, assurances and representations in relation to the Services and/or the Work are expressly excluded. If any of the exclusions or limitations set out in this clause are declared illegal or void, or if you claim that there has been a breach of a term, condition, warranty, statement or assurance which cannot be excluded by this Agreement, to the maximum extent permitted by law, our entire liability and your exclusive remedy is limited, at our discretion, to:
(a) with respect to the supply of goods:
(i) the re-supply of the goods; or
(ii) the payment of the cost of having the goods re-supplied; and
(b) with respect to the supply of services:
(i)the re-supply of the services; or
(ii) the payment of the cost of having the services re-supplied,
but in any case, our maximum cumulative liability under this Agreement will not exceed an amount greater than the Fee or Monthly Fee (if such a Monthly Fee is payable).
10.4 Subject to the preceding clause, in no event will we (including our agents, employees or contractors) be liable for any:
(a) direct loss; or
(b) indirect or consequential loss,
(even if we are aware of the possibility of such loss or if such loss was otherwise foreseeable), (including, but not limited to, loss of profits, production, data, opportunity or goodwill; or business interruption) however caused and on any theory of liability, including without limitation, contract or tort (including negligence or otherwise) arising during and/or as a result of the performance or non-performance of this Agreement by us (all the foregoing collectively referred to in this Agreement as “Damage”).
10.5 Notwithstanding anything else in this Agreement, if any of the exclusions or limitations set out above are declared illegal or void, then to the extent permitted by law, our liability for breach of a condition or warranty implied into this Agreement by the Competition and Consumer Act 2010 (Cth) is limited, at our discretion, to either: supplying the services again, or repairing or replacing the Work in respect of the breach.
11. Your Indemnities
11.1You indemnify us and our officers, employees and agents (in this clause referred to as “those indemnified”) from and against any loss (including without limitation all legal costs (on a solicitor/client basis) and expenses or liability incurred by any of those indemnified arising from any claim, demand, suit, action or proceeding (each a “Claim”) against any of those indemnified where such loss or liability arose out of, in connection with, or in respect of any breach of this Agreement by you.
12. Term and Termination
12.1 The Agreement continues until expiration of the Term unless terminated or extended in accordance with these Terms of Service and the Engagement Letter.
12.2 We can terminate the Agreement for any reason, at the end of each stage of the Services but before commencement of the next stage, by written notice to you (email is sufficient).
12.3 No breach of this Agreement is a material breach giving the other party the right to terminate this Agreement, unless:
(a) the party allegedly in breach is given written notice specifying the nature of the breach (this notice must be clearly headed “Breach of Agreement - Notice to Cure”); and
(b) the party receiving the notice fails to rectify the breach within 30 days of receipt of such notice.
12.4 On the termination of the Term of this Agreement, for any reason, you must:
(a) pay us any Monthly Fee or Fee currently owing;
(b) reimburse us for any expenses we incur; and
(c) forthwith deliver to us all products, goods and other materials in your possession or control that belong to us.
12.5 Termination of the Term of this Agreement will be without prejudice to any other rights which may have accrued to the terminating party.
12.6 Either party can terminate this Agreement by notice in writing to the other party if the other party:
(a) enters or resolves to enter any agreement, composition or compromise with, or assignment for the benefit of, its
creditors or any class of them otherwise than for the purposes of an amalgamation or reconstruction;
(b) goes into “administration” or appoints or has a “liquidator” appointed as those terms are defined in the Corporations Act 2001; or
(c) ceases to carry on its day-to-day business activities.
12.7 Notwithstanding any other provision of this Agreement, clauses 7, 9, 10, 11, 12, 13, 14 and 15 will survive termination of this Agreement for any reason.
13. Consequences of Termination
13.1 On expiry or termination of this Agreement and subject to any other provisions to the contrary under this Agreement, both parties will be regarded as discharged from any further obligations under this Agreement save that such termination will not affect any rights or remedies that may have accrued to the parties prior to termination or consequent upon termination pursuant to this Agreement.
14. Assignment and Novation
14.1 The Client cannot assign any rights under this Agreement without our prior written consent. The Client cannot sub-contract any of its obligations under this Agreement without our prior written consent.
15.1 The parties agree and acknowledge that nothing in this Agreement constitutes a relationship of employer and employee, principal and agent, partnership or joint venture and that the relationship between the parties is one of independent contractors.
16.1 Part or all of any clause of this Agreement that is invalid, illegal or unenforceable will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.
17.1Any delay or failure of either party at any time to exercise any power or right under this Agreement is not a waiver of its right at any later time to insist on performance of that or any other provision of this Agreement.
18. Further Assurances
18.1 You will promptly do and perform all further acts and execute and deliver all further documents, required by law or reasonably requested by us to give effect to this Agreement and the transactions contemplated by it.
19. Choice of law and jurisdiction
19.1 The construction, validity and performance of this Agreement will be governed in all respects by the law of Queensland and the parties submit unconditionally to the jurisdiction of the Courts of Queensland.
20.1 This Agreement may be signed in multiple copies, each of which shall be deemed to be an original, and all of which shall constitute a single Agreement.
20.2 If this Agreement is signed in counterparts, it shall not be legally enforceable until the parties exchange the signed counterparts.
21. Entire agreement
21.1 This Agreement constitutes the entire agreement between the parties and supersedes and merges all prior agreements, representations or other understandings, written or oral, between the parties.
22.1 Any notice (the “Notice”) required to be given for the purposes of this Agreement shall be given by sending the same by pre-paid post, facsimile, or by delivering the same by hand at, the relevant address shown in this Agreement or such other address as shall have been notified (in accordance with this Clause) by the party hereto concerned as being its address for the purposes of this Clause. Any Notice sent by post and posted within Australia shall be deemed to have been served five (5) days after posting and in proving this service it shall be sufficient to prove that the Notice was properly addressed and stamped and put into the post. Any Notice sent by facsimile shall, on proof of successful transmission, be deemed to have been served on the next business day following the date of despatch thereof. Any Notice delivered by hand shall be deemed to have been served when physically delivered at the relevant address.