Terms and Conditions

1. DEFINITIONS

‘Client’ or ‘You’ means you, the party as named in the Proposal which is hiring us to provide the Services.

‘Fee’ means the price for the Services, or Project as set out in the Proposal.

‘Fee Payment Schedule’ means the Fee Payment Schedule set out in the Proposal.

‘Project’ means the Project, work or content described in the Proposal.

‘Project Commencement Date’ means the Project Commencement Date set out in the Proposal.

‘Project Completion Date’ means the Project Completion Date set out in the Proposal.

‘Proposal’ means the Proposal document which sets out the key details of the Project and the Services and is signed by the Client.

‘Maintenance and Support’ means ongoing website maintenance and/or support services.

‘Retained IP’ means any intellectual property which is identified in the Proposal as Retained IP, and which is owned by WebK or licensed to WebK prior to or independently of the commencement of the Services or the Project.

‘Services’ means the website design and development services, website maintenance services, search engine marketing services, search engine optimisation services, Google pay per click (‘PPC’) management services, ecommerce services, or other related services as outlined in the Proposal as well as any other services that may be agreed in writing from time to time.

‘We’, ‘us’, ‘our’ or ‘WebK’ means Harbik Davidyan trading as WebK (ABN 38 150 965 835).

‘WebK Hourly Rate’ means the WebK Hourly Rate set out in the Proposal.

1. DELIVERY AND APPROVAL OF SERVICES AND PROJECTS
   
   1. WebK agrees to start providing the Services and to commence the Project on the Project Commencement Date and to deliver the Project by the Project Completion Date. 

1. 1. In the event of any delay in delivery, WebK will notify the Client to discuss and agree an alternate date. The Client acknowledges that any late provision of any materials, information or responses that WebK may have requested or may require may result in a delay to delivery of the Project. The Client acknowledges that WebK is not responsible for any such delay.
   2. For Services that do not involve Maintenance and Support, unless otherwise stated in writing, the Services will include a first version of the Project and one reasonable revision at no further cost to the Client. A ‘reasonable revision’ means non-material, minor changes only. Any structural, substantial changes or new material not included in the original Proposal will be charged at the WebK Hourly Rate at the time of the request.
   3. Requested revisions must be returned to WebK within one week of submission of the first version of the Project or as otherwise agreed. Any late delivery of revisions by the Client to WebK may result in a delay to finalisation of any Project as WebK may have blocked their time out for other work and clients.
   4. WebK will complete and deliver the Project with the final revisions within one week of receiving revision requests; with the exception of any agreed Projects for which WebK and the Client have agreed an alternative timeframe.

1. 1. WebK may design websites using WordPress or other similar content management systems.

1. 1. Upon completion of the Project and payment of all Fees by the Client, WebK will transfer to the Client all rights to the Project which WebK holds or controls. 

1. 1. In the event that the Project involves website design using a purchased WordPress theme, or a subscription with a hosting provider or content management system, the Client is responsible for the costs of any WordPress templates, hosting and/or content management system subscription fees, in addition to the Fees for the Services and the Project.

1. 1. The Client acknowledges that any website provided by WebK in connection with the Project may break, develop errors, or become unresponsive at a later date for a variety of reasons, such as:

1. 1. 1. 2.9.1.if the Client fails to renew a licence or subscription in relation to the website;

1. 1. 1. 2.9.2.if a relevant content management system, relevant hosting provider or any other relevant platform or provider releases an update or makes a change which is incompatible with the website.

1. 1. Upon delivery of the Project to the Client, and formal approval of the Project by the Client, WebK is released from any further obligations in relation to the Project. Unless otherwise agreed in writing, and unless the Proposal confirms that the Project and Services includes Maintenance and Support, then WebK is not responsible for any ongoing maintenance, troubleshooting or updates of the Project.

1. 1. The Client acknowledges that WebK offers ongoing Maintenance and Support Services which are charged separately from any website design and development services, search engine marketing services, search engine optimisation services, Google pay per click (‘PPC’) management services, ecommerce services, or other related services. Unless the Proposal explicitly states that Maintenance and Support Services will be provided, or the Client otherwise engages WebK to provide ongoing Maintenance and Support services then WebK will not provide any further maintenance or amendment of the Project after the Project has been delivered to the Client.
      
      
2. FEES

1. 1. In consideration for WebK’s performance of the Services and delivery of the Project, the Client agrees to pay the Fees as set out in the Proposal. 

1. 1. Unless otherwise specified in writing, any Fees set out in the Proposal are exclusive of goods and services tax (‘GST’). If GST applies to the Fees, this will be payable by the Client in addition to the Fees.

1. 1. Fees will be payable by the Client on the dates as set out in the Fee Payment Schedule.

1. 1. If no dates are set out in the Fee Payment Schedule, and unless otherwise agreed in writing, for Projects that cost less than $5,000 and do not involve Maintenance and Support, the Fees are payable as follows:

1. 1. 1. 3.4.1.50% payable upon signing the Proposal; and

1. 1. 1. 3.4.2.50% payable upon delivery of the Project. 

1. 1. If no dates are set out in the Fee Payment Schedule, and unless otherwise agreed in writing, for Projects that cost $5,000 or more and do not involve Maintenance and Support the Fees are payable as follows:

1. 1. 1. 3.5.1.50% payable upon signing the Proposal; 

1. 1. 1. 3.5.2.a second instalment of 25% payable at the time as specified in the Proposal; and

1. 1. 1. 3.5.3.a final instalment of 25% payable upon delivery of the Project.

1. 1. For ongoing Maintenance and Support Services:

1. 1. 1. 3.6.1.WebK provides the Services on a monthly basis with no lock in period;

1. 1. 1. 3.6.2.The monthly Fees are as set out in the Proposal;

1. 1. 1. 3.6.3.The monthly Fees may be updated from time to time. By continuing to use the Services after having been notified in writing of updated Fees, the Client agrees to the updated Fees;

1. 1. 1. 3.6.4.The Client may cancel the Services at any time by providing 14 days’ notice and paying all outstanding Fees;

1. 1. 1. 3.6.5.Upon cancellation, the Client will maintain access to the Services until the end of the current monthly billing period. No portion of the Fees will be refunded for Services cancelled during a billing period (unless otherwise required by law);

1. 1. 1. 3.6.6.WebK will hand over any relevant documents and/or website administrative privileges to the Client once all outstanding Fees have been paid by the Client;

1. 1. 1. 3.6.7.The Client hereby authorises WebK to charge the Fees using the Client’s nominated payment method according to the Fee Payment Schedule set out in the Proposal. 

1. 1. In the event that WebK attends the Client’s worksite in person, travel time will be charged at the WebK Hourly Rate for any travel in excess of 15 minutes from WebK’s Sydney location. 

1. 1. Fees may be processed via third party payment providers. In order to engage WebK, the Client must also agree to any relevant third party payment provider’s terms and conditions. 

1. 1. In the event that the Client requests WebK to perform any additional work beyond what is set out in the Services and the Project, such additional work will be charged at the WebK Hourly Rate.

1. 1. The WebK Hourly Rate may be updated from time to time. By engaging WebK to perform ongoing services after having been notified in writing of any updated WebK Hourly Rate, the Client agrees to the updated WebK Hourly Rate.

1. 1. In the event that the Services or the Project are terminated before completion, for a reason that is permitted by these Terms, the Client shall be liable for any Fees for Services or the Project that have actually been provided, calculated on a pro rata basis.

1. 1. In the event that the Client wishes to transfer their website to another service provider, we may assist with site migration, at a cost of $695 + GST. This fee may be updated from time to time.

1. SERVICE LEVELS

1. 1. WebK strives to respond within 24 hours to all Client queries made on weekdays (excluding public holidays). Client queries made within 24 hours of a weekend or public holiday may receive a response on the following workday. 

1. CLIENT APPROVAL AND USE OF PROJECT MATERIAL

1. 1. WebK agrees that they will be the sole author of the Project or will use their own professional qualified employees or contractors. WebK shall be solely responsible for any employees or contractors they use to assist with any Project and will vet all final versions prior to presentation to the Client.
   2. The Client is responsible for written approval required for the completion of the Project within the agreed timeframe. Payment of the invoice rendered by WebK or any publication or use of the Project also constitutes formal approval of the Project.

1. CONTRACTORS

1. 1. The Client acknowledges and agrees that WebK may engage contractors, consultants or other third parties (‘Contractors’) to perform some or all of the Services on WebK’s behalf.

1. 1. WebK will ensure that any Contractors that WebK may engage from time to time will have the relevant qualifications or experience and will comply with WebK’s obligations under these Terms, including those obligations in relation to confidentiality.

1. THIRD PARTY SERVICES

1. 1. In the event that the Client engages any third party services directly, or otherwise independently from WebK (for example, if the Client purchases a subscription for website hosting or for a content management system, or purchases any stock photographs, video or other content) (‘Third Party Services’), the Client does so at the Client’s sole risk. 

1. 1. The Client acknowledges and agrees that although WebK may suggest or recommend particular Third Party Services from time to time, WebK makes no representations, warranties or guarantees that the Third Party Services will be fit for purpose or appropriate for the Client’s circumstances. In the event of any problems with the Third Party Services, WebK shall not be liable in any way and the Client must address these problems directly with the provider of the Third Party Services. 

1. ERRORS AND OMISSIONS

1. 1. While WebK makes all efforts to ensure that the Project is reviewed and accurate where applicable, there is no guarantee that every Project is completely free from errors or missing content. The onus is on the Client to ensure all requested or required content is included in the Project and identification of any errors or changes required before final approval. In addition, as the Project and Services are generally based on the materials, content and information provided by the Client, WebK is not responsible for errors occurring in the Services or Project or in any projects related to the Services or Project after approval of the Project by the Client.

1. CONFIDENTIALITY

1. 1. Each party (the ‘Receiving Party’) understands that the other party (the ‘Disclosing Party’) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (referred to as ‘Proprietary Information’ of the Disclosing Party).

1. 1. WebK’s Proprietary Information includes non-public information regarding features, functionality and performance of our business and our platforms. The Client’s Proprietary Information includes non-public data provided by the Client to WebK in connection with the Client’s use of the Platform.

1. 1. The Receiving Party agrees:

1. 1. 1. 9.3.1.to take reasonable precautions to protect such Proprietary Information; and

1. 1. 1. 9.3.2.not to use (except as otherwise permitted in these Terms) or divulge to any third party any such Proprietary Information. 

1. 1. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document:

1. 1. 1. 9.4.1.is or becomes generally available to the public; 

1. 1. 1. 9.4.2.was in its possession or known by it prior to receipt from the Disclosing Party;

1. 1. 1. 9.4.3.was rightfully disclosed to it without restriction by a third party;

1. 1. 1. 9.4.4.was independently developed without use of any Proprietary Information of the Disclosing Party; or

1. 1. 1. 9.4.5.is required to be disclosed by law or a regulatory authority.

1. 1. Notwithstanding anything to the contrary, WebK shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Services, Project and related systems and technologies (including, without limitation, information concerning user data and data derived therefrom), and WebK will be free (during and after the term) to:

1. 1. 1. 9.5.1.use such information and data to improve and enhance WebK’s services and for other development, diagnostic and corrective purposes in connection with the WebK’s other offerings; and

1. 1. 1. 9.5.2.disclose such data solely in aggregate or other de-identified form in connection with WebK’s business.

1. 1. During the performance of the Services and after their termination, all information concerning fees, payment arrangements, terms and any other information disclosed by both parties, shall be treated as Confidential Information by both parties.

1. WEBK WARRANTIES

WebK warrants that:

1. 1. The Project material and design provided as part of the Services is original and does not infringe the intellectual property of any third party. Where images or materials are provided as stock or purchased on a licence basis by WebK, WebK will ensure the Client has been assigned all rights to the licence of any images or materials purchased.

1. 1. In providing the Services, WebK will comply with general law and industry standards.
   2. The Project will be original and unique work and will not knowingly breach any third party rights.
   3. The work performed to provide the Services will be done to a high standard in accordance with best practice.
   4. The scope of the Services will be limited to the description provided in the Proposal, these Terms and as may be agreed in writing from time to time.

1. CLIENT ACKNOWLEDGEMENTS

The Client acknowledges and agrees that:

1. 1. The Client will provide all relevant information required for WebK to carry out the Services in a timely manner.
   2. The Client will supply the outline for the work and Services and any research material that WebK may require to complete the Services, including any person to be available to respond to queries or additional information that WebK may require to finalise the Project.
   3. All work is completed based on and in accordance with the Client’s instructions.

1. 1. In the event that the Project and the Services involve any third party resources or platforms (such as WordPress templates or third party hosting providers) the Client must agree to any terms and conditions relating to such third party resources or platforms.

1. 1. WebK cannot control where and how any Project may be amended, posted, published or otherwise used by the Client and for this reason, the Client agrees WebK is not responsible for any Project or Services after they are provided and approved. 

1. 1. Any material or content (‘Material’) provided by the Client which forms part of the Services or Project is the responsibility and liability of the Client and the Client will indemnify WebK for any direct or indirect claims including any third party claims in relation to the Material or use of the Project. The Client warrants that all Materials provided to WebK are either owned by or licensed to the Client for the use provided.

1. 1. WebK does not guarantee any increase in revenue, increase in business or other similar outcomes as a result of the Services or the Project.

1. 1. Website design, website development, search engine optimisation, search engine marketing, Google PPC management, and ecommerce services are dynamic fields and results are difficult to anticipate. As a consequence, WebK cannot guarantee that any Services will produce any particular results whether relating to an improvement in internet presence, increase in revenue, increase in website traffic, increase in business or otherwise.

1. CLIENT WARRANTY AND INDEMNITY

1. 1. 12.1.The Client warrants that:
      
      1. 12.1.1.The Client will not use our Services or the Project for any illicit, unlawful, fraudulent, inappropriate, offensive or otherwise illegal activities.

1. 1. 1. 12.1.2.The Client will not transmit any viruses, malware, worms, trojan horses or other destructive software of any kind using the Services or the Project, and the Client will not upload, post, host or transmit unsolicited material or messages to or via the Services or the Platform.

1. 1. 1. 12.1.3.The Client will use the Project and our Services in good faith and in accordance with these Terms and with Australian law.

1. 1. 1. 12.1.4.In the event that the Services or the Project involve ongoing hosting services or involve any other Third Party Services, the Client will comply with all terms and conditions applicable to those hosting services or other Third Party Services.

1. LIMITATION OF LIABILITY AND INDEMNITY

1. 1. Legislation may confer certain rights, warranties and guarantees and remedies relating to the provision of the Services which cannot be excluded, restricted or modified, including but not limited to the Australian Consumer Law (‘ACL’). At no time are these statutory rights sought to be excluded.

1. 1. The Client agrees to indemnify and hold WebK harmless from and against all claims, demands, regulatory proceedings and/or causes of action, and all damages, liabilities, costs (including settlement costs) or associated expenses (including legal fees) resulting from written or published material produced for the Client, or arising in connection with any information or material supplied by the Client, or from any act or thing done on the Client’s instructions or with the Client’s approval.

1. 1. 13.3.The Client hereby indemnifies WebK and keeps WebK fully indemnified against any loss or liability that WebK incurs as a result of any breach by the Client of any provision of these Terms.
      
      

1. INTELLECTUAL PROPERTY (‘IP’) AND OWNERSHIP OF PROJECTS
   
   1. Subject to full payment by the Client of invoices, and subject to any third party terms, all ownership and IP in content of the Project and Services belongs to, will be assigned to and will vest in the Client subject to use by WebK for promotional purposes. Any outstanding work, Projects and Services remain the property of WebK and may not be used, altered, redistributed or published by the Client until payment in full has been made and received by WebK.

1. 1. Notwithstanding the previous sub-clause, in some cases the Project may involve third party terms which means that any IP in the Project is subject to those third party terms. For example, if the Project incorporates a third party hosting provider or content management system then the Project remains subject to any terms and conditions that apply to these hosting providers and/or content management systems. 

1. 1. In the event that the Project involves a third party platform or service (such as third party hosting providers or content management systems), then subject to full payment by the Client of invoices, WebK will provide all relevant account information and administrative privileges to the Client so that the Client is able to make full use of the Project.

1. 1. In the event that any Retained IP is identified in the Proposal, all ownership and intellectual property rights in the Retained IP will be retained by WebK (or WebK’s licensees) and shall not be transferred or assigned to the Client. In the event that any Retained IP is used by WebK in delivery of the Services or the Project, WebK will grant the Client a royalty-free, non-exclusive, revocable, non-transferable licence (without a right of sub-licence) to use the Retained IP solely for the purpose of using the Services or the Project in accordance with these Terms. 

1. IMAGES, GRAPHICS AND LOGOS (‘IMAGES’)
   
   1. Generally, any Images required for any content of the Project are to be provided by the Client unless otherwise agreed. The Client takes full responsibility for ensuring their imagery is correctly licensed to the Client and/or WebK for the purposes of the intended use or is otherwise owned by the Client.
   2. If the Client is unable to prove that a valid licence exists and was purchased, the liability of any infringement will fall on the Client. Any third party claims are to be managed by the Client and the Client agrees to indemnify WebK for any such claim.
   3. From time to time, the Client may request WebK to provide Images as part of the Services or the Project. All Images, materials and work are provided without warranties of any kind, either express or implied. In the event of any such request by the Client for Images, the Client agrees to pay any additional fees for licensing or use as may be incurred and invoiced by WebK.
   4. 15.4.As a consequence of providing the Services and the Project, WebK has the right and permission to use the Client’s name and logo for their own business promotional and advertising purposes. If the Client does not wish to have their name and logo used for such purposes, they agree to inform WebK in writing of such refusal and WebK agrees to remove any reference to the Client in relation to their business and Services.
      
      
2. INVOICES, PAYMENT AND CANCELLATION
   
   1. The Client agrees to pay the Fees as set out in the Proposal, and to pay all invoices by the date specified in the invoice. Any late, overdue or unpaid invoice amounts will incur penalty interest at the interest rate stated in the invoice or otherwise at the annual rate of 10% compounded daily.
   2. As WebK has set aside time for completing the work, and once the Client approves the Project, all monies are non-refundable (except as otherwise provided under the ACL or other relevant laws). Any cancellation of the Services or the Project, once confirmed by the Client, will result in a forfeit of any deposit. Where there is no deposit paid in advance, the full amount of the Project, as stated in the Proposal, becomes immediately due and payable.
   3. In the event that the Client fails to pay any invoices in accordance with the terms of the invoice or these Terms, or does not perform their obligations under these Terms, WebK may refuse to continue to provide the Services and may terminate the arrangement immediately without notice. WebK may also commence proceedings to collect any outstanding debts owed.

1. 1. 16.4.In the event that the Services or the Project involve ongoing hosting services or Maintenance and Support and the Client breaches any provision of these Terms, WebK may immediately terminate the Services and the Project without notice to the Client.
      

1. DELAYS

1. 1. The Client acknowledges and agrees that events may occur which delay or suspend the performance of the Services for reasons outside of WebK’s control. In the event that the Services are dependent on factors which may be outside WebK’s control, WebK will not be responsible for any delays as a result of such factors.

1. 1. WebK is not responsible for any force majeure event which may delay, suspend or make the delivery of the Services or the Project commercially impracticable, inadvisable or impossible and require any termination of all or part of the Services or the Project. In particular, WebK is not liable for any failure of or delay in the delivery of the Services and the Project where such failure or delay is due to causes beyond WebK’s reasonable control, including but not limited to acts of God, flooding, war, strikes or labour disputes, embargoes, government orders or any other force majeure event. 

1. 1. In the event that the Client delays the Services or any part thereof, additional costs may be incurred, for example where equipment, staff, travel and other resources were booked.

1. 1. There may be additional costs involved should the Client request any specific requirements or restrictions which may contribute to or cause the delay in commencement or finalisation of the Services or the Project.

1. RELATIONSHIP
   
   1. The relationship under these Terms is that of principal and independent contractor. At no time is WebK a partner, agent, employee or joint venture partner of the Client. No act or omission of either party is to bind the other party except as expressly set out in these Terms.

1. AFFILIATE MARKETING AND ADVERTISING

1. 1. We may email you from time to time to notify you about specials, updates or other relevant information about our website and our Services. You may choose which emails you receive by changing your email settings.

1. 1. Through the website and the Services, we may engage in affiliate marketing whereby we receive a commission on or a percentage of proceeds of sales of third party goods or services that occur through our website or other Services.

1. 1. Through the website and other Services, we may accept advertising and sponsorships from commercial businesses whereby third parties pay us to advertise on our website or through our other Services, or we may receive other forms of advertising compensation.

1. APPLICABLE LAW

1. 1. These Terms are governed by the laws of New South Wales. Both parties agree to submit to the non-exclusive jurisdiction of the Courts of New South Wales for determining any dispute concerning these Terms.