Details of the parties entering into the contract
This agreement is hereby entered into between Elegant Web Services (hereinafter referred to as “we”, “us”, “web design company”, “our”) and Yourself hereinafter referred to as “Client”,“you”).
1.1 The Client is engaging Elegant Web Services for the specific purpose of developing and/or improving a Web site.
1.2 The Client may use Elegant Web Services’s hosting service which is subject to Elegant Web Services’s Hosting Terms and Conditions or Elegant Web Services may establish a contract on behalf of the Client with a Web Host that provides hosting services suitable for the Client’s needs. Alternatively the Client may themselves establish a suitable hosting contract with a Web Host. The Client authorises Elegant Web Services to access this account, and authorises the Web Host to provide Elegant Web Services with “write permission” for the Client’s web page directory, cgi-bin directory, and any other directories or programs which need to be accessed for this project.
1.3 All fees related to establishing a hosting service is payable to the selected Web Host and will be invoiced to the Client by Elegant Web Services on behalf of the selected Web Host. The Client understands that use of the hosting services is subject to the Terms and Conditions as provided by the Web Host.
2. Domain Registration
2.1 Elegant Web Services can assist the Client in obtaining a domain name (i.e. www.yourname.com) or alternatively the Client can secure and supply its own. All fees related to securing domain names by Elegant Web Services on behalf of the Client are payable to the selected domain name registrar and will be invoiced to the Client by the selected domain name registrar.
2.2 Should the Client desire a specific domain name which is already owned by another party, the Client is solely responsible for negotiations and any costs incurred to acquire that domain name.
2.3 The domain name will be the property of the Client and as such the Client will be solely responsible for maintaining the said service and any resulting fees. The entire risk in obtaining and maintaining the Client’s domain name lies with the Client. In no event will Elegant Web Services be liable to the Client of any third party for any damages, including loss of profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate the Client’s domain service.
3. Web Design and Development
3.2 It is anticipated that the Elegant Web Services will create, capture or receive from the Client all the graphic elements necessary to complete the Client’s website.
3.3 The Client agrees that website design will not commence until the required deposit is paid in full and all final text and images are provided in digital format. Elegant Web Services will provide an initial design concept based on the design brief provided by the Client.
3.4 Elegant Web Services agrees to provide a two design concept to satisfy the Client’s vision. The Client accepts that requests for design concepts additional to the initial two will incur additional design fees. Each design concept is subject to minor amendments in accordance to the guidelines outlined in the section titled ‘Client Changes’ in order to satisfy the Client’s vision. Design concept(s) will be emailed or published online for the Client’s viewing and approval.
3.5 Alternatively, Elegant Web Services may show the Client the design(s) in person via laptop computer or print medium. Communication between Elegant Web Services and the Client is crucial during this phase to ensure that the ultimate publication will match the Client’s needs. Upon completion of this stage the Client will be asked to confirm acceptance for the website design via e-mail or by signing a printed copy of the design. Once this acceptance is received from the Client, the work necessary to complete the project will begin. The Client should continue to view updates to the site and express their preferences or dislikes to Elegant Web Services.
4. Assignment of Project
4.1 Elegant Web Services reserves the right to assign subcontractors to this project to ensure the right fit for the job as well as on-time completion. Elegant Web Services agrees to protect the Client by specifying a maximum charge in advance after consultation with the subcontractor. Expected subcontractor charges will be listed in the Website Proposal.
5. Completion Date
5.1 Elegant Web Services and the Client must work together to complete the website in a timely manner for both parties to remain profitable.
5.2 Elegant Web Services agrees to work expeditiously to complete this project within a reasonable time frame, but shall have no responsibility for delays caused by the Client or the Client’s actions.
6.1 Cancellation of the project at the request of the Client must be made in writing to Elegant Web Services. In the event that work is postponed or cancelled at the request of the Client, Elegant Web Services reserves the right to retain the original 50% deposit. In the event this amount is not sufficient to cover Elegant Web Services for time and expenses already invested in the project, additional payment will be due. If additional payment is due, this will be billed to the Client within fourteen (14) days of notification in writing to stop work. Final payment will be expected under the same terms as listed in the section titled ‘Payment Terms’ below.
7. E-Commerce Requirements
7.1 This agreement contemplates the possibility of an e-commerce enabled site. Such projects may require one or more of the following:
(a) Secure Certificate – encouraged for online transactions;
(b) Merchant Account – required to accept credit card payments;
(c) Real-time Credit Card Processing – option for high volume / high sales websites;
(d) Elegant Web Services can assist the Client in obtaining these services.
7.2 Any charges related to these services are payable to the selected service provider and will be invoiced directly to the Client by the selected service provider.
7.3 The Client agrees that it is responsible for complying with the laws, taxes, and tariffs related to e-commerce, and will hold harmless, protect, and defend Elegant Web Services and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the Client’s use of Internet electronic commerce.
7.4 The Client also understands that Elegant Web Services cannot provide legal advice.
8. Cross Browser Compatibility
8.1 This agreement contemplates the creation of a website viewable by website browsers most commonly used at the time development of the project commences. Compatibility is defined as all critical elements of each page being viewable in each of the aforementioned browsers.
8.2 The Client is aware that some advanced techniques on the internet, however, may require a more recent browser version and brand or plug-in. The Client is also aware that as new browser versions are developed they may not be backward compatible. Time spent to redesign a site for compatibility due to the introduction of new browser versions will be separately negotiated and be in addition to the base price of this agreement set out in the Website Proposal.
8.3 Note however, that if additional pages are necessary to accommodate specific browsers, plug-in technology, screen resolutions, or platforms, additional charges may apply.
9.1 A ‘final’ copy of text will be provided by the Client in a digital format. Pages exceeding that of a normal A4 sized page of text in a 10 to 12 point font may be subject to additional fees for increased formatting time. Text required to be displayed within tables may also incur further charges for increased formatting time, e.g. comparison charts or price lists. Time required to make substantive changes to client-submitted text after a web page has been constructed will be charged at an hourly rate.
10.1 If professional photographic capture is necessary, the Client is solely responsible for organising the capture of any photographs required and the resulting fees incurred.
11. Copyrights and Trademarks
11.1 The Client represents to Elegant Web Services and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Elegant Web Services for inclusion in the Client’s website are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Elegant Web Services and its subcontractors from any claim or suit arising from the use of such elements furnished by the Client.
12. Limitation of Liability
12.1 The Client agrees that any material submitted for publication will not contain anything leading to an abusive or unethical use of the Web Hosting Service, the Host Server or Elegant Web Services. Abusive and unethical materials and uses include, but are not limited to, pornography, obscenity, nudity, violations of privacy, computer viruses, harassment, any illegal activity, spamming, advocacy of an illegal activity, and any infringement of privacy.
12.2 The Client hereby agrees to indemnify and hold harmless Elegant Web Services from any claim resulting from the Client’s publication of material or use of those materials.
12.3 It is also understood that Elegant Web Services will not publish information over the Internet which may be used by another party to harm another. Elegant Web Services will also not develop any unlawful website for the Client. Elegant Web Services reserves the right to determine what is and is not unlawful.
13. Additional Expenses
13.1 The Client agrees to indemnify and reimburse Elegant Web Services for any critical Client requested costs and expenses necessary for the completion of the project. Examples would be:
(a) Purchase of specific fonts at the Client’s request;
(b) Purchase of specific photography at the Client’s request;
(c) Purchase of specific software at the Client’s request;
14. Client Changes
14.1 Elegant Web Services prides itself in providing excellent customer service. This is the spirit of our agreement and the spirit of Elegant Web Services’s business. To that end, we encourage input from the Client during the design process.
14.2 Elegant Web Services understands, however, that Clients may request significant design changes to pages that have already been built to the Client’s specification. To that end, please note that our agreement does not include a provision for ‘significant page modification’ or creation of additional pages in excess of that outlined in the Website Proposal. If significant page modification is requested after a page has been built to the Client’s specification, it will incur an additional charge.
14.3 Some examples of significant page modification at the request of the Client include:
(a) Developing a new layout structure to accommodate a substantial redesign at the Client’s request;
(b) Replacing more than 75% of the text to any given page at the Client’s request;
(c) Creating a new navigation structure or changing the link graphics at the Client’s request;
(d) Significantly reconfiguring any database structures and/or background services;
14.4 Moderate changes, however, will always be covered during the development of the site and also covered by our three (3) month maintenance agreement outlined in the section titled ‘Maintenance’ below.
14.5 We strive to accommodate the needs of each Client and we maintain a liberal redesign policy. We cannot, however, provide major redevelopment services in excess of the tasks outlined in the Website Proposal as contemplated by this agreement.
15. Search Engine Registration
15.1 Should the Client request so, Elegant Web Services will, to the best of their ability, optimize the Client’s website with appropriate titles, keywords, descriptions and text and thereafter process an initial submission of the Client’s website to a limited number of major search engines and directories.
15.2 Elegant Web Services offer advanced search engine optimization and site promotion as an additional services. If advanced search engine optimization and site promotion services are desired, Elegant Web Services can assist the Client in this specialised area. Any charges related to this service will be invoiced separately to the Client by Elegant Web Services.
16.1 Elegant Web Services will provide e-mail and telephone assistance to the Client’s designated representative(s) regarding management of the Client’s website. Sometimes, however, training for one or more individuals onsite at the Client’s place of business is desired. This agreement allows for one hour of onsite training. Further training requirements will be charged on an hourly basis.
17.1 This agreement allows for minor website maintenance over a one (1) month period, beginning on the date the Client’s website is available to be published.
17.2 Minor website maintenance corresponds up to an average of one half hour for one or more tasks to be completed at one time. This includes updating links and making minor changes to a sentence or paragraph.
17.3 It does not include replacing nearly all the text from a page with new text, major page reconstruction, new pages, navigation structure changes, or major changes to the database and/or background services of the website. Such changes in excess of the tasks outlined in the Website Proposal will be charged on a half hourly basis.
17.4 After the initial three (3) month period, maintenance requirements are charged on a half-hourly basis.
17.5 Complete redesign and/or restructuring of the website, requires a separate ‘Web Design and Development Agreement’ to be signed by the Client and Elegant Web Services.
18. Third Party or Client Page Modification
18.1 Some Clients will desire to independently edit or update their web pages after completion of the site. This is always an option for Clients of Elegant Web Services. However, if the Client or an agent of the Client other than Elegant Web Services attempts to update the website and damages the design or impairs the ability for the web pages to display or function properly, time to repair the web pages will be assessed at an hourly rate. There is a one hour minimum charge.
19.1 The Client agrees that it shall defend, indemnify, save and hold Elegant Web Services harmless from any and all demands, liabilities, losses, costs and claims, including reasonable legal fees associated with Elegant Web Services’s development of the Client’s website. This includes liabilities asserted against Elegant Web Services, its subcontractors, its agents, its clients, servants, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by the Client, its agents, employee or assigns.
19.2 The Client also agrees to defend, indemnify and hold harmless Elegant Web Services against liabilities arising out of any injury to person or property caused by any products or services sold or otherwise distributed over the Client’s website. This includes infringing on the proprietary rights of a third party, copyright infringement, and delivering any defective product or misinformation which is detrimental to another person, organisation, or business.
20.1 Elegant Web Services will ensure that its employees and subcontractors agree that, except as directed by the Client, will not at any time during or after the term of this Agreement disclose any Confidential Information to any person whatsoever. Likewise, the Client agrees that it will not convey any Confidential Information obtained about Elegant Web Services to another party.
21. Ownership to Website Components
21.1 Upon final payment of the project, the Client is assigned rights to use as a website, the design, graphics, text, and source code contained in the finished assembled website.
21.2 Rights to fonts, photos, graphics, and text purchased on behalf of the Client for completion of this project and at additional cost to this agreement are specifically transferred to the client.
21.4 Elegant Web Services and its subcontractors retain the right to display graphics and other web design elements as examples of their work in their respective portfolios.
22. Design Credit
22.1 The Client agrees that Elegant Web Services may place their logo within the Client’s website establishing design and development credit. The Client also agrees that the website created for the Client may be included in Elegant Web Services’s portfolio.
23. Payment Terms
23.1 The Client understands that a minimum deposit of fifty percent (50%) is required to commence work.
23.2 Larger projects may be broken down into logical development stages and will require progress payments at the completion of each stage. Development of each stage will commence once payment is received for the previous development stage. If applicable, details of each development stage and the relevant progress payments will be outlined in the Website Proposal.
23.3 Upon completion of the website, a letter or email will be sent with an invoice to the Client advising that the work has been completed.
23.4 Final payment of the remaining balance plus any additional charges incurred will be due within fourteen (14) days following the ‘print date’ on the invoice. Elegant Web Services reserves the right to disable the Client’s website on the internet if payment is not made by the due date. If a payment delay is anticipated, please contact Elegant Web Services to discuss potential problems in advance. If problems are anticipated we may be able to accommodate an alternate arrangement.
23.5 Any invoices not settled within fourteen (14) days specified will be subject to a late fee of 1% of the amount outstanding per month that the invoice is overdue unless both Elegant Web Services and the Client have agreed on an alternate arrangement. Such alternate arrangements are to be documented and signed by both parties.
23.6 The Client understands that, unless alternate arrangements have been agreed upon, unpaid balances are subject to collection. In the event of collection, the Client will be liable for all costs of collection including attorney’s fees, court costs, and collection agency fees.
23.7 All charges mentioned throughout this agreement are exclusive of Goods and Services Tax (G.S.T). The Client shall pay all or any G.S.T. on the charges and cost to Elegant Web Services.
24. Dispute resolution
24.1 If there is any dispute arising under this agreement, the parties undertake to use all reasonable efforts in good faith to attempt to resolve the dispute which arises between them. A party may give the other party a notice of dispute in connection with this agreement. Both the parties must first attempt to resolve the dispute amicably on mutually reasonable terms before commencing any mediation.
24.2 Any disputes in excess of $7,500 (or the maximum limit for Disputes Tribunal) arising out of this Agreement shall be submitted to binding arbitration in accordance with the Commercial Arbitration Act 1990.
24.3 The Arbitrator’s award shall be final, and judgment may be entered in any court having jurisdiction thereof. The Client shall pay all arbitration and court costs, reasonable legal fees and legal interest on any award or judgment in favour of the Elegant Web Services or as directed by the award.
25. Governing Law
25.1 This agreement shall be governed and construed in accordance with the laws of New South Wales, Australia. Any legal action arising out of its use shall be brought and enforced under the laws of New South Wales, Australia. By signing this agreement, both parties agree to submit to the jurisdiction of the courts of New South Wales, Australia and any legal action pursued shall be within the exclusive jurisdiction of the courts of New South Wales, Australia.
26. Authorised Representative
26.1 Each Party warrants that their representative whose signature appears below is the duly authorised representative of the Client and the authorised representative of the Client certifies that he or she is legally capable of entering into this agreement on behalf of the Client.