1. Definitions – In these terms:
1.1 – “Submission” means the cover letter, overview, Project timeframe, quotation and acceptance form accompanying these terms of business.
1.2 – “Project” and “The Work” means the agreed scope of work outlined in the agreed SUBMISSION (or such part as is accepted by You).
1.3 – “Excess Work” means all work required by You not included in the Submission, outside the scope of works or work completed (as approved by You in writing) which must be further amended.
1.4 – “Intellectual Property” means copyright, trade mark, design, patent, semiconductor or circuit laYout rights relevant to, inter alia:
(a) textual, graphical, audio and other material displayed in the Project;
(b) screens, organisation, patents and operation and control features; and
(c) all software associated with the Project.
1.5 – “Materials” means all items or things created, provided or obtained by RMB to complete the Project, including any drawings, sketches, artwork, photographs, computer disks, digital files or otherwise.
1.6 – “RMB” means Red Meets Blue Pty Ltd
1.7 – “You” or “Your” means the client referred to in the Submission.
1.8 – “Warranty Period” means a period of ninety days from the commencement of this agreement.
1.9 – “Retainer Period” means a 12-month or more period during which RMB is supplying services on a 12 monthly or more basis in accordance with the SUBMISSION.
2.1 – Upon You appointing RMB to undertake the Project, an agreement will come into existence comprising these terms and RMB’s Submission, as varied with RMB’s written approval.
2.2 – Subject to the specific details of RMB’s relevant Submission, these terms cover all ongoing and future work undertaken by RMB for You unless varied with RMB’s written consent.
3. Proposals and/or Pitches
Where Materials are submitted to You for any reason where terms of business have not been agreed to, their provision is made on the basis that RMB retains copyright and all other Intellectual Property rights in the Materials and that the recipient of the Materials will keep them confidential and will return them complete and uncopied if the Submission (pitch or Project proposal) is unsuccessful.
4.1 – You will use Your best endeavours to ensure that all instructions are in writing and, in particular, You will sign off on all work produced. RMB will not be liable for any errors or omissions resulting from oral instructions or from a failure on Your part to sign off on any work.
4.2 Subject to clause 4.1, Your instructions will include the following instructions:
(a) provision of all data to be incorporated in the Project;
(b) provision of all logos, designs, graphic and related Materials to be incorporated into the Project; and
(c) provision of any other information, ideas or suggestions which are to be expressly considered by RMB in the Project.
4.3 – You must ensure that information supplied to RMB is not illegal or prohibited by laws which apply to You and RMB.
5. Deposit, Fees and Expenses
5.1 – Before the commencement of work, You agree to the terms of payment outlined in the Submission (either in the form of a 50% deposit upfront or agreed payment plan).
5.2 – Unless agreed in writing by RMB, all remaining fees and expenses are payable prior to delivery of the final work.
5.3 – If staged payments are agreed to, RMB reserves the right to cease work until all outstanding amounts are paid.
5.4 – If You request Excess Work, RMB reserves the right to charge You additional fees at the rate of $150-$300 per hour or higher depending on RMB’s current hourly charge out rate.
5.5 – Unless otherwise stated, goods and services tax (“GST”) will be charged in addition to the quoted fees and on all expenses where it applies.
5.6 – If RMB contracts the services of outside parties as part of the scope of work, their fees will form part of RMB’s account (unless agreement is reached that they be billed direct to You) and will include an additional fee for supervision, outlined in the Submission.
5.7 – If any payments under this clause remain unpaid for more than 14 days, RMB in its absolute discretion reserves the right to charge interest at the rate of 10% per annum, calculated daily, until payment is made.
5.8 – Upfront deposits are viewed as project set up fees and non refundable.
5.9 – Services paid for are treated as credit and are to be used for services within 12-months from the invoice date, after which, they expire and are non-refundable.
6. Timelines, Acceptance Test And Cancellation
6.1 – While every effort will be made by RMB to meet agreed timelines, RMB will not be responsible for delays caused by unforeseeable events, changes to Your instructions or circumstances beyond RMB’s control. To avoid doubt, time shall not be of the essence for any work performed by RMB.
6.2 – If You cancel this agreement for any reason (which cancellation must be in writing), You must pay all fees and expenses incurred by RMB to the date of such cancellation, plus 50% of RMB’s remaining costs yet to be billed.
6.3 – If RMB does complete all work required for the Project but awaits content or details from You and RMB has requested these details and You have not answered its request within 14 days, RMB can invoice You for 90% of the total invoice value of the Project.
7. Copyright and Intellectual Property
7.1 – The ownership of Intellectual Property in all Materials produced by RMB that are not ultimately used in the Project remains with RMB.
7.2 – RMB will maintain the confidentiality of any information supplied by You, but only if You advise in writing that such information is confidential.
7.3 – No Intellectual Property rights in the Materials will be licensed to You until RMB has been paid in full all fees and expenses due.
7.4 – Once all RMB’s fees and expenses have been paid, RMB will licence to You copyright in the Material, limited to the purpose described in the Submission. RMB’s fees are based upon this limited licence of copyright. If You require a more-encompassing licence or assignment, this must be the subject of further negotiations between You and RMB. An assignment of copyright will only be granted if RMB provides this is writing.
7.5 – In all other respects RMB retains copyright and all other Intellectual Property and moral rights (including the right of adaptation) in the Materials. In particular, RMB may use the works or any of the Materials for any self-promotional or competitive purpose.
7.6 – Notwithstanding clauses 7.1-7.5 (Inclusive), You acknowledge that there is no assignment of Intellectual Property rights in:
(a) any pre-existing material (including but not limited to RMB’s software, documentation, templates and data) which is incorporated into or which has been used in the course of developing the Project; or
7.7 – As part of this agreement, and in line with industry standards, Red Meets Blue will insert a small line of text in the footer of completed websites “Site by Red Meets Blue Website Design” that cannot be removed for the life of the website.
8. Warranties and Indemnities
8.1 – RMB will obtain all necessary consents and approvals to ensure that the Materials may be lawfully used by You, but RMB will not be responsible for any misrepresentation made by independent contractors or third parties involved in the Project.
8.2 – You will indemnify RMB against all claims arising from RMB’s use of any information or documents supplied by You or for any act or thing done by RMB on Your instructions or with Your approval.
8.3 – RMB makes no warranty regarding the suitability or otherwise of any of the Material for Your purposes and it is Your responsibility to ensure that the Materials comply with the requirements of any legislation regarding marketing, labelling, packaging or otherwise.
8.4 – Unless included in the Submission or Project, RMB is not responsible for print management or other procedures applying the work or Project created by RMB.
9. Website Warranties & Indemnities
9.2 – RMB does not warrant that the Website or hyperlinked links on the Website are not exposed to the risk of viruses, malicious computer code or other forms of interference that may damage the Website, Your own computer system or that of people accessing the Website.
9.6 – If the operation of the Website is found to be defective or contains bugs and You notify RMB during the Warranty Period, RMB will as soon as practical rectify the defect at its own expense.
9.7 – Website Hosting and Domain Registration Services are a fixed price and paid in advance for the full agreed period. Should the client at any time request a cancellation of either the hosting space use, or domain name registration prior to the renewal date, any unused part of that period will be non-refundable.
Furthermore, in the case of hosting or domain cancellation, whereby a transfer is required, any time spent by RMB will incur an additional cost (set by RMB).
10. Exclusion of Liability
10.1 – RMB will not be liable to You for any indirect or consequential loss or loss of profit or loss of business arising out of delay of completing the work, errors or defects in the work or any data errors by RMB.
10.2 – Neither party shall be liable to the other for any indirect or consequential loss (including but not limited to goodwill, loss of business, loss of anticipated profits or savings and/or other pure economic loss) arising out of or in connection with this Agreement.
10.3 – RMB’s total liability and contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the agreement shall be limited to the aggregated amount of fees received.
11. Retention of Files
All client files will only be kept for a maximum of six years from the date of completion of the Project. If files are required to be kept for a longer period, RMB reserves the right to charge an appropriate fee for that purpose.
12. Governing Law
You and RMB agree that this agreement is governed by, and will be interpreted in accordance with, the laws of the State of Western Australia.
13.1 – In recognition of the time and expense RMB applies in developing the skills and experience of its employees and contractors, you agree that at no time will you approach any RMB Staff or seek to engage their services in any manner, nor will you induce them to breach the terms of their engagement with RMB.
13.2 – Without limiting RMB’s other rights for any breach of sub-clause (a) you will be liable to pay to RMB damages in an amount equal to 12 months’ gross salary paid to the RMB Staff member so approached or induced (Damages).
13.3 – You agree that the Damages are a reasonable pre-estimate of the damage, expense and cost that will be incurred by RMB as a result of such breach.
13.4 – To the extent only that this clause or any part of it would be held to be invalid by any Court on account of the quantum of Damages, you agree that the quantum may instead be read down to refer to a lesser figure that would be reasonable in the circumstances, which you agree cannot, in any circumstances, be less than the amount which RMB would have to pay to the preferred recruitment or personnel agency to replace the staff member in question.
13.5 – The terms of this clause 13 will survive the termination or completion of any contractual arrangement between you and RMB.