In these Terms unless the context requires otherwise:
Additional Charges means charges that are separate from the Price, and may include but are not limited to, the cost of additional services.
Commencement Date means the commencement of the Project and the first date in the Workflow Schedule.
Confidential Information means information that:
(a) by its nature is confidential;
(b) is designated by the parties as confidential; or
(c) the parties know or ought to know is confidential;
and includes all information about a party and its related bodies corporate, including but not limited to, all technical, financial, commercial and other information in any form (for example: as a document or in electronic form) of or relating to them or their business affairs, which is made available or which becomes known during the term of this Contract but does not include information that was in the public domain at the time of its disclosure.
Consumer Guarantees means the consumer guarantees contained in the Australian Consumer Law, which is contained in Schedule 2 of the Competition and Consumer Act 2010.
Collab means The Collaborative Agency Pty Ltd (ACN 144 584 092)
Contract means the contract formed as a result of the acceptance of a quote by the Client. It includes these Terms and the Quote.
Client means the Client set out in the Quote, offer or other document provided by Collab (in the absence of such information, the Client who placed the Order).
Client IP means rights in intellectual property belonging to the client including imagery, photographs, designs, literature, content or diagrams provided by the Client to be used in the Final Output.
Delivery Date means close of business on the dates that Collab will provide the Services in accordance with the Workflow Schedule for the Project.
Final Output means the finished product produced by Collab as set out in the Quote which may include (but are not limited to) a website, digital application, electronic platform, e-commerce portal, marketing strategy documentation, consulting report, marketing workshop, developed brand identity, advertising content in various media forms (including print) which have been developed by Collab as part of the Services.
Go-Live means the deployment and publication of the Final Output making it accessible to the Client’s designated audience.
Goods means the Final Output and any other goods supplied by Collab in connection with the Services.
Intellectual Property means Collab’s rights all in intellectual property including copyright; discoveries; inventions; present and future patent and patent applications; rights to inventions; copyright and related rights; trademarks; service marks; trade names; domain names and URLs; rights in good will or to sue for passing off; rights in designs; registered designs; rights in computer software; database rights; rights in confidential information (including know-how and trade secrets); and any other intellectual property rights. These rights may be registered or unregistered.
Insolvency Event means any of the following analogous events:
(a) the party, being an individual, commits and act of bankruptcy;
(b) a party becomes insolvent;
(c) a party disposes of whole or any part of its assets, operations or business other than in the ordinary course of business;
(d) the party unable to pay their debts as the debts fall due;
(e) any step is taken by a mortgagee to take possession of or dispose of the whole or any part of a party’s assets, operations or business; or
(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or party of any party’s assets, operations or business.
Invoice means a tax invoice issued by Collab to the Client specifying the Price and any ancillary costs payable by the Client to Collab for the Goods and Services.
Order means any written or verbal order by the Client to Collab for the Services and/or Goods.
Price means the price payable in respect of the Services and/or Goods as set out in the Quote.
Project means the project to be performed by Collab as set out in the Quote.
Project Intellectual Property means all of the Intellectual Property created in connection with the Project but excludes the Client IP.
Quote means the quotation provided by Collab to the Client for the provision of the Services and the supply of Goods.
Services means the services to be provided by Collab to the Client as described in the Quote and includes delivery of the Final Output.
Terms means these Terms and Conditions of sale.
Workflow Schedule means the Project workflow schedule as set out in the Quote (if any).
2.1. These Terms apply to the sale of Goods and Services from Collab to the Client.
2.2. Collab will not supply Goods and Services on any other terms or conditions than those set out herein.
3. Acceptance of Terms and Placement of Orders
3.1. The Client is deemed to have agreed to these Terms by either:
(a) signing and returning a copy of the Quote incorporating these Terms;
(b) accepting the Quote verbally or in writing; or
(c) providing instructions to Collab in relation to the Project.
3.2. If Collab accepts an Order as specified in clause 3.1, the parties will have created a binding Contract and Collab will supply the Goods and/or Services to the Client, and the Client will pay the Price to Collab as specified in the Quote or Invoice in accordance with the Contract.
4. Price and Payment Terms
4.1. All Prices quoted by Collab, whether contained in the Quote or otherwise, are exclusive of GST.
4.2. At Collab’s discretion, a deposit may be required to be paid prior to commencement of the Services (Deposit). The amount of the Deposit will be set out in the Quote and may vary depending upon the nature of the Services and the resources Collab is required to secure for the Project. For example, Projects involving television production or substantial print jobs may require a Deposit of up to 50% of the Price.
4.3. In circumstances where the quoted Services include website development:
4.3.1. Collab requires a minimum Deposit equating to 25% of the Price to be paid prior to commencing the Services; and
4.3.2. Collab may, in its discretion, require progress payments throughout the Project in accordance with the Workflow Schedule as set out in the Quote. Unless stated otherwise in the Quote, Invoicing by Collab for website development shall be based on the following milestones:
(i) Invoice 1: Commencement invoice: 25% of Price payable (being the Deposit);
(ii) Invoice 2: Sprint Development phase 1 - 25% further instalment of Price payable;
(iii) Invoice 3: Sprint Development phase 2 - 25% further instalment of Price payable; and
(iv) Invoice 4: Sprint Development phase 3 - 25% balance of Price payable.
4.4. In circumstances where the Price is payable in accordance with agreed milestones, work by Collab on the next Project milestone cannot commence until payment is made in respect of the previous milestone.
4.5. In circumstances where the Price is to be paid in a lump sum upon Project Completion or delivery of the Final Output, then Invoices must be paid within 30 days of issue unless otherwise agreed in writing.
4.6. Any payment made by credit card shall incur a processing fee of 2.5% in addition to the amount paid by credit card.
4.7. If the Client fails to make payment of any amount on the due date of the Invoice, the Client must pay to Collab interest on the full amount outstanding at the rate equal to 4% higher than the penalty interest rate fixed by the Attorney-General of Victoria pursuant to s2(1) of the Penalty Interest Rate Act 1983 (Vic), calculated monthly for the period from the due date until payment is received.
4.8. The Client must reimburse Collab for the full amount of any bank or other fees associated with any dishonoured payments or cheques and any legal, debt recovery or other expense associated with any action by Collab to recover money from the Client.
4.9. The Client may not withhold, make deductions from, or set-off payment of any of the Price due to Collab for any reason.
5. Collab’s Responsibilities and Workflow Schedule
5.1. Collab will provide the Client with the Services and complete the Project as set out in the Quote.
5.2. Collab is unable to commence the Project until it receives from the Client:
(a) all relevant Project information and resources as identified by Collab (Project Resources); and
(b) where a Deposit is required, payment of that Deposit in full.
5.3. If the Project Resources are received more than two weeks after the Commencement Date, then Collab may need to reissue the Project schedule and the Delivery Dates. In such circumstances, the Delivery Dates will be reconfirmed once Collab receives all of the Project Resources.
5.4. Collab will use its reasonable endeavours to deliver the Services in accordance with the agreed Delivery Dates, subject to any delay resulting from a failure of the Client to provide Project Resources, information and material as required, and any additional work required by the Client.
6. Variations and Cancellations
6.1. If the performance of the Services is delayed by an act, omission or default of the Client or its employees, agents, consultants or contractors, then Collab may require the Client to pay Collab for the costs and expenses incurred by Collab as a result of the delay and accordingly add to the Price any Additional Charges incurred to Collab.
6.2. If the Client causes a significant delay to the Workflow Schedule or the Project which would render it wholly impractical to continue the Project (or significantly delay other Collab clients, projects or engagements), then Collab may cancel or suspend the Project and retain the Deposit or a portion of the Deposit commensurate to the costs of the Services and/or Goods rendered to the date of cancellation (at its sole discretion). In circumstances where the value of the Services and/or Goods rendered up to the time of cancellation exceeds the Deposit, Collab reserves the right to charge this additional amount to the Client.
6.3. If the Client wishes to make changes to the Project, the Services and/or the Workflow Schedule the Client must notify Collab in writing of those changes, and if those changes result in additional work or time required by Collab, Collab may vary the Delivery Date, Workflow Schedule and the Price to include any Additional Charges incurred by Collab as a result of those changes.
6.4. Collab will be entitled to Additional Charges and/or to vary the Price as agreed between the Client and Collab or, if no agreement is reached, then as reasonably determined by Collab (taking into account the cost of comparable goods and services), if:
(a) Collab is required to perform services different or additional to those specified in the Quote;
(b) the nature of the Services or the Project changes from those required by the Client at the Quote stage and there is a consequent increase in the total delivery cost of the Project as a result of the change;
(c) the costs associated with the provision of the Services or provision of the Goods is directly or indirectly increased due to the imposition of, or increase in, the amount of any government or statutory authority tax (other than income tax), fee or charge; or
(d) the Services are suspended other than by reason of a breach, negligence or omission by Collab.
6.5. Collab can source a range of (watermarked demo) stock images to propose to the Client for proposed use in the Final Output. These stock images must be purchased prior to use in the Final Output and will be an Additional Charge (thus not included in the Price) unless otherwise agreed in writing or stated in the Quote. Where extensive research by Collab is required to source required stock imagery, Collab will be entitled to charge for its time in conducting such research as Additional Charges, provided it has first sought approval from the Client.
6.6. In circumstances of a cancellation or suspension by the Client of the Project, the Services, and/or the Final Output delivery then, in the absence of any breach of these Terms by Collab, the Client will be liable for a portion of the Price as reasonably determined by Collab in its sole discretion taking into account any loss, expenses or costs to Collab (including consequential loss, third party Equipment hire, and cancellation fees).
7. Collab responsibilities
7.1. Collab will exercise reasonable care, skill and ability when performing the Services and delivering the Final Output and, where applicable, will make every effort (according to best practice in website management) to ensure the security and stability of the Final Output.
7.2. Following deployment, publication or Go-Live of any Final Output, Collab will provide post-delivery rectification for a period of 30 days (Rectification Period) in order to fix any defects, faults or errors identified by the Client, but only to the extent that:
7.2.1. such defects, faults or errors were introduced by Collab or resulted from Collab’s Services; and
7.2.2. rectification requested by the Client does not entail work or services which are reasonably outside the scope of Services as set out in the Quote or which has otherwise been agreed in writing between the parties.
7.3. Following the written notification by the Client of any defects, faults or errors in the Final Output, the Client must allow Collab reasonable access to the Final Output to review the Services.
7.4. Subject to the Consumer Guarantees, Collab will not be liable for any defect, fault, error or damage to the Final Output which may be caused or partly caused by, or arises as a result of:
(a) any defects, faults or errors which originated from Project Resources provided by the Client;
(b) the Client or its customers failing to use the Project Output for any purpose other than that for which it was designed;
(c) the Client continuing to use the Project Output after any defects, faults or errors become apparent and Collab has instructed the Client to cease use pending investigation;
(d) interference with the Services by the Client or any third party without Collab’s written prior approval; or
(e) the Customer failing to follow any instructions or guidelines provided by Collab in relation to use or maintenance of the Project Output.
7.5. Collab will be responsible for the development of the Final Output such that it meets the functional requirements specified in the Quote or any scope of works which has been agreed in writing between the parties.
7.6. Collab will not be liable for any damages that result from misuse of the Final Output or any other use which was not disclosed to Collab in writing during Project development phases.
7.7. Professional care and consideration will be taken by Collab to make the Final Output as secure and robust as possible, however, the Client acknowledges that Collab is not responsible for Project or website security, whether during the Rectification Period or otherwise.
7.8. Unless expressly stated in the Quote (and delineated as being included in the Price), domain name registration, SSL certificates, eCommerce gateways and website hosting are not the responsibility of Collab and are not included in the Price.
8. Client’s responsibilities and warranties
8.1. The Client must take responsibility for clearly disclosing its desired purpose for the Final Output. Collab will not be liable for any damage, cost, loss or expense suffered by the Client as a result of a lack of functionality or failure by the Final Output to achieve a desired purpose in circumstances where that purpose was not clearly disclosed by the Client in writing prior in the Project development phases.
8.2. The Client acknowledges and accepts that it is the Client’s responsibility to check the Final Output thoroughly during the Rectification Period.
8.3. Deployment, publication or Go-Live of any Final Output will only occur upon receipt of written approval from the Client (Sign-Off). In providing Sign-Off, the Client confirms that it has checked the Final Output, Goods and Services carefully and has advised Collab of any issues, errors or required variations prior to issuing Sign-Off to Collab.
8.4. Unless otherwise agreed, Variations or changes to the scope of work or Project which may be required by the Client prior to Go-Live approval are not included in the Price unless specified otherwise in the Quote.
8.5. The Client:
(a) warrants that it has the right to use all Project Resources and any third-party information or material provided to Collab (for example, images, photographs, art works or other copyright protected works), and is not infringing any Intellectual Property rights of any party;
(b) must provide Collab with all resources, including but not limited to information, documentation, approvals and licences to enable Collab to perform the Services;
(c) must use all reasonable endeavours to ensure that there are no circumstances within the Client’s power or control which may affect or impede Collab’s ability to provide the Services and/or the Goods; and
(d) must provide Collab with any details of any required specifications or properties of the Services and/or Goods at the time the Client provides an Order to Collab.
8.6. The Client warrants that the Project Resources and information provided to Collab will be accurate and current, to the best of its knowledge.
8.7. If there are any errors in any Project Resources, specifications or other information provided by the Client to Collab as set out in this clause 8, Collab will be entitled to vary the Price commensurate with an amount by which the errors have increased costs to Collab.
8.8. Collab will be entitled to rely on the Clients warranties set out in this clause 8.
9. Professional Advice and Implementation of Recommendations
9.1. The Client hereby acknowledges that Collab is not able to provide legal, accounting, or financial advice which may be incidental to the Client’s online marketing or e-commerce efforts nor does Collab have the expertise to provide accounting guidance (such as direction regarding GST calculation in an online store or other such metrics).
9.2. The Client acknowledges and agrees that Collab does not guarantee that the Services rendered by Collab will have a positive impact on the Client’s business from a financial perspective. The Client hereby warrants that it will obtain any requisite legal, accounting and/or financial advice in relation to the suitability and likely impact of any recommendations of Collab for the Client’s marketing strategy.
9.3. The Client fully and unconditionally releases Collab from any Liability, Claim, loss or cost (of whatsoever kind) the Client may incur resulting from or in any way incidental to a failure by the Client to seek appropriate professional advice, guidance and assistance in breach of the warranty contained at clause 9.2.
10.1. Collab will not be liable to the Client or any other person for any lability or claim of any kind whatsoever arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any indirect consequential loss or any other remote abnormal or unforeseeable loss whether or not in the reasonable contemplation of the parties, in relation to the Project and providing the Goods and Services. This includes, but is not limited to:
(a) any claims or liability which may arise because the Client has misrepresented its desired purpose for the Final Output;
(b) any claims or liability which may arise as a result of the Client providing incorrect or deficient Project Resources, information or instructions;
(c) any claims or liability for infringement of any third-party intellectual property rights; and
(d) any claims or liability resulting from website 'downtime' (for example, when an application forming part of the Final Output is not available due to hosting issues, hacking or previously undiscovered issues).
The Client agrees to indemnify Collab against any claims, loss, cost, expense and/or liabilities arising from:
(a) the Client’s breach of the Contract;
(b) unauthorised exploitation or use by the Client of the Intellectual Property or the Project Intellectual Property;
(c) infringement of any third-party intellectual property rights; and
(d) the Client providing incorrect or deficient Project Resources, information or instructions.
12.1. The parties may terminate the Contract upon 14 days’ written notice to the other party.
12.2. The parties may immediately terminate, or suspend the performance of, any Contract if:
(a) the other party breaches a term of the Contract (including these Terms) which is not capable of remedy;
(b) there is a failure to comply with any payment obligation;
(c) the other party causes a significant delay to the Workflow Schedule or the Delivery Dates, without a reasonable excuse; or
(d) if an Insolvency Event occurs.
12.3. If the Contract is terminated for any reason:
(a) the Client must immediately pay to Collab a pro-rata payment for the Goods and Services provided by Collab up to the date of termination, and any other money owed by the Client to Collab under this Contract as at the date of termination; and
(b) termination does not affect any accrued rights or liabilities of the parties.
13. Force Majeure
13.1. Collab will not be liable to the Client for any failure to perform, or delay in performing Collab’s obligations under this Contract if the failure or delay is due to an act of war, revolution or terrorism, an act of God, pandemic or any other event beyond the control of Collab. If such a failure or delay continues for a period of 30 days Collab may terminate this Contract by giving written notice.
14. Intellectual Property
14.1. The Client acknowledges and agrees that:
(a) with the exclusion of the Client IP, the Project Intellectual Property and the Intellectual Property are the sole property of Collab;
(b) this Contract does not confer on the Client any property right or title to any of the Intellectual Property or Project Intellectual Property; and
(c) they will credit all Final Output to © Collab.
14.2. The Client agrees to assign to Collab all Project Intellectual Property, and all legal and statutory rights and remedies and any actions available to the Client in relation to the Project Intellectual Property.
14.3. Subject to restrictions on the use of the Intellectual Property contained in these Terms, provided that the Price is paid in full and no monies remain outstanding to Collab by the Client, Collab grants to the Client an exclusive, revocable licence to use Collab’s Project Intellectual Property in the Final Output (Licence).
14.4. The Licence is personal to the Client and the Client must not assign, sub-Licence, transfer in whole or in part the Licence without Collab’s prior written consent, which consent may be granted, withheld or granted subject to conditions in Collab’s absolute discretion.
15. Confidentiality & Non-Disclosure
15.1. Collab will not at any time, or for any reason, whether during the term of this Contract or after its termination disclose to any person outside of its organisation any Confidential Information belonging to the Client.
15.2. The Client must not at any time, or for any reason, whether during the term of this Contract or after its termination disclose to any person or use for their own or another person’s benefit any Confidential Information and/ or Intellectual Property belonging to Collab.
15.3. If the Project or the Contract is completed or otherwise terminated, the Client must return or destroy (at Collab’s request), at its own costs, all documents or other media which contain any Confidential Information belonging to Collab.
15.4. The Client acknowledges that Collab may retain imagery and records of the Final Output, Goods and Services for quality assurance and marketing purposes. The Client hereby consents to the Final Output being used for promotional purposes, including publication on any social media platform, print material or being furnished to prospective clients of Collab for demonstration purposes provided at all times that it does not contain or disclose any of the Client’s Confidential Information.
Collab may change these Terms if it has given to the Client at least 30 days’ prior notice in writing of the proposed change. In circumstances where the Client advises Collab in writing that it does not accept the proposed change, then the Contract between the parties will continue on the basis of the unchanged Terms set out herein.
Any failure by Collab to insist upon strict performance of any term or condition in these Terms shall not constitute a waiver of any rights of Collab under that term or condition or any other provision of the Contract.
Collab may sub-contract all or any part of its rights and obligations under the Contract without the Client's consent.
The Contract between Collab and the Client is made in the State of Victoria, and the parties agree to submit all disputes arising between them to the courts of such State.