Terms and Conditions

The Agreement, as varied from time to time, applies to all sales of goods and the provision of all services by the Supplier to the Client pursuant to the Agreement, together with any non-excludable conditions and warranties expressed by law, constitutes the entire agreement between the Parties.

DEFINITIONS
1. “Agreement” means the Contract, the Terms and Conditions herein contained and the DDR Service Agreement.
2. “Parties” means the parties to this Agreement and their respective successors and permitted assigns, and Party means any one of them.
3. “Additional Charge” means all work requested by you and undertaking by the Supplier in addition to the Services outside the Scope.
4. “Date of Acceptance” means the date which is the later of:
(a) The payment of the Deposit: or
(b) The execution of the Agreement.
5. “Warranty Period” means 180 days from the Date of Activation of the services.
6. “Date of Activation” means the date you are supplied with a development link or testing URL.
7. “Client” means the person described as the client on the page one of this Contract within the “Client Details” area.
8. “Authorisation” means the signing of page one, or making a payment in accordance with our payment terms;
9. “Bug” means any lack of function in the Services that is the direct result of a coding or design error by the Supplier;
10. “Business Day” means any day that is not a Saturday, Sunday or a public holiday in Perth;
11. “Confidential Information” for the purposes of this agreement includes, without limitation, information regarding this Agreement, or any information regarding this Agreement, or any information (whether in oral, written, electronic or other form) of a commercial, operational, marketing, business, technical or financial nature which is not publicly available relating to the Parties affairs or the affairs of any related entities, and their clients or potential clients.
(a) The Parties must not without prior written consent of the other Party disclose any Confidential Information in connection with the Services or this Agreement to any person not a Party to this Agreement other than:
(i) As necessary to perform the Services or
(ii) with respect to any matter within public knowledge.
(iii) Without limiting the foregoing, Confidential Information includes the terms of this Agreement and the contents of the Scope.
12. “Fees” means the Price together with any Additional Charges incurred by you relating in any way to this Agreement and the Services.
13. “Intellectual Property” means the intellectual property attaching to the Services including copyright, patents, trademarks, design rights, domain names whether registrable or not and whether registered or not.
14. “Price” means the project cost charged by the Supplier for the Services as described on the page one of this contract.
15. “Training” means the instruction of 1 person in the operation of the Services at the Supplier offices, at a agreed time and date.
16. “Website” means your website designed, built and hosted pursuant to this Agreement.
17. “Scope” means the document evidencing the Services the Supplier offers to perform for the Client annexed to this Agreement and titled ‘Scope’.
18. “You” and “Your” means the Client named on the page one of this Contract within the “Client Details” area.
19. “Notice of completion” means a notice in writing, either by e-mail or letter given by the Supplier to the Client advising that the goods and services subject of the Contract have been provided in full by the Supplier.
20. “A reasonable time” frame is within 12 months from the date of acceptance however shall be extended by client requests, amends or delays.
21. “Supplier” means mikesITguys Pty Ltd trading as mikesitguys, ABN: 70 126 527 302

TERMS OF THE AGREEMENT
1. Offer You are engaging the Supplier to provide the Services as defined in the Scope.
(a) To accept our offer to provide the Services You must return a signed Contract to the Supplier and pay either the agreed Deposit or agree to a payment schedule (both acts together comprising “Acceptance”).
(b) If Acceptance does not take place within 14 days from the date the document is sent to You, then our offer to provide the Services will expire without further notice to You.

2. The Services
(a) The Supplier will produce the services to the specifications contained in the Scope (herein referred to as “the Services”) which include:
(i) Graphic design;
(ii) Hosting;
(iii) Website Development;
(iv) Training;
(v) Consultancy.
(vi) The Supplier is retained to undertake the Services exclusively. No part of the Services may be undertaken by You or any third party.
(vii) Agrees to provide to the Supplier in electronic format within 4 weeks
of the date of this Contract, full particulars of all content to be included in its Website. Under no circumstances content shall not delay final payment.
(b) Agrees to provide access to all domain names within 4 weeks.

3. Hosting
(a) “Hosting” means 12 months’ hosting by the Supplier of the Services.
(b) The 12 months of the Hosting is calculated from the Date of Acceptance.
(c) You may discontinue the Hosting at any time. To discontinue the Hosting does not affect Your liability to pay the Fees.
(d) If You host Your services elsewhere, the Supplier will not warrant or support the services regardless the date of activation, You will have to resolve any issues with Your hosting provider.

4. Bugs
(a) The Supplier will repair any Bugs of which the Supplier receives written notice up until the expiry of the Warranty Period. The onus is upon the Client to report all and any Bugs.
(b) The Supplier does not support or warrant any bugs derived from obsolete browsers such as Internet Explorer 6, 7, 8 or lower and versions of other browsers that are more than 2 versions old.
(c) The Supplier does not support any Bugs caused by third party plug-ins, applications, security software, obsolete hosting platforms / software.
(i) The Supplier does not warrant or support any Bugs caused by Client modifications.

5. Price
(a) You agree to pay the Supplier the Price for the Services in accordance with the Contract.
(b) The Supplier may, at the cost of the Client, engage the services of a debt recovery agency to assist it, if payment is more then 7 days late.
(c) You agree that the Website is complete and due for final payment upon receiving the development link, regardless of any amends to be made.
(d) Orders and agrees to pay for the goods and services described in the Scope accompanying this document.

6. Additional Charges
(a) Subject to clause 5, all work requested by You and undertaken by the Supplier in addition to the Services will incur charges additional to the Price (“Additional Charges”).
(b) As at the date of this Agreement, the Additional Charges are $99 / hour inc GST.
(i) The minimum charge is one hour;
(ii) Except for work that has been requested, quoted and accepted by the Client.

7.Warranties
(a) Each party warrants that:
(i) the execution and delivery of this Agreement has been properly authorised;
(ii) it has full corporate power to execute, deliver and perform its obligations under this Agreement;
(iii) this Agreement constitutes a legal, valid and binding obligation of it enforceable in accordance with its terms by appropriate legal remedy;
(iii) this Agreement does not conflict with or result in the breach of or default under any provision of its constitution, or a ny material term or provision of any law or regulation to which it is a party or subject or by which it is bound;
(iii) there are no actions, claims, proceedings or investigations pending or threatened against it or by it of which it is aware and which may have a material effect on the subject matter of this Agreement.
(b) In addition to the warranties in clause 8.a, the Supplier warrants that:
(i) it will exercise reasonable skill, care and attention in providing the Services;
(ii) the Services will not contain any viruses as at the date of activation;
(iii) the Services will be compatible with Internet Explorer versions 8 to 10 and the latest versions of Mozilla Firefox, Google, Chrome and Safari.
(iv) other than in relation to material included in the Services by You or any third party from time to time, any use of the Services by You in accordance with this Agreement will not infringe the right of any party and will not breach any applicable law.
(c) In addition to the warranties in clause 8.a, You warrant that any material which You cause to be published or displayed upon Your Website will not contain any illegal or unethical material or activity.
(d) That You own copyright or have been granted copyright for all, text, images and materials.
(e) The Client Warrants that it is authorised by the owner or is the owner of all Intellectual property to be included in the services provided and that it will not infringe any other person’s rights.

8. Indemnity
(a) You hereby unconditionally and irrevocably agree to indemnify and keep indemnified the Supplier and its officers, employees and agents against any and all actions, claims, demands, losses, liabilities or costs (including legal costs) that arise, or result from, or are connected in any way with the Services, the Hosting, including but not limited to the sale of any product or service via Your Website, except to the extent to which it arises out of any breach by the Supplier of this Agreement.

9. Limitation of Liability
(a) To the full extent permitted by law, the Supplier excludes all liability in respect of loss of data, interruption of business or any consequential or incidental damages or loss.
(b) To the full extent permitted by law, the Supplier excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement.
(c) The Supplier’s total aggregate liability for all claims relating to this Agreement is limited to the Price and any Additional Charges incurred by You.
(d) Each party’s liability for any claim relating to this Agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.
(e) This Agreement is to be read subject to any legislation, which prohibits or restricts the exclusion, restriction or modification of any implied warranties, conditions or obligations. If such legislation applies, to the extent possible, the Supplier limits its liability in respect of any claim to, at mikesITguys option:
(i) In the case of goods:
(ii) the replacement of the goods or the supply of equivalent goods;
(iii) refund of the sum chargeable by the Supplier to the Client.
(iv) in the case of services:
(v) the supply of the services again; or
(vi) refund of the sum chargeable by the Supplier to the Client.

10. Confidentiality
(a) A party must not, without the prior written consent of the other party, use or disclose the other party’s Confidential Information unless expressly permitted by this Agreement or required to do so by law or regulatory authority.
(b) Each party must implement and maintain effective security measures to prevent unauthorised use and disclosure of the other party’s Confidential Information.
(c) A party may:
(i) use the Confidential Information of the other party solely for the purposes of complying with its obligations and exercising its rights under this Agreement; and
(ii) disclose the Confidential Information to its personnel or advisers to the extent necessary for them to know the information for the purposes related to this Agreement but only if reasonable steps are taken to ensure that the confidentiality of the information is retained.

11. Intellectual Property
(a) Subject to clause 11.b and subject to payment of the Price, the Intellectual Property shall be vested in You and the Supplier the reupon assigns the Intellectual Property to You.
(b) You authorise the Supplier to display Your Services in its design portfolio, including but not limited to the portfolio displayed on http://www.mikesitguys.com.au, our partner Websites and media releases.
(c) You also agree for a the Supplier logo to be placed on the footer of Your Website and hyperlinked to the Supplier Website with a “Do Follow” tag.

12.Breach and Termination
(a) You will breach this Agreement upon:
(i) failure to have provided content as required within 4 weeks of signing this Agreement;
(ii) failure to have content uploaded as required in the Scope;
(iii) contravention of Your obligations pursuant to clauses 7, 8 or 10;
(iv) termination of the Hosting.
(b) the Supplier may terminate this Agreement upon the occurrence of any of the events described in clause 12.a, where You have failed to remedy the breach within 14 days of written notice.
(c) In addition to clauses 12.a and 12.b any party may terminate this Agreement by written notice to the other party if any of the following events has occurred in respect to the other party:
(i) a material breach of this Agreement which is not remediable or if the other party has not remedied within 14 days of written notice;
(ii) an insolvency event occurs, other than an internal reconstruction with notice to the other party.
(d) Upon termination:
(i) the Parties are immediately released from their obligations under this Agreement except those obligations contained in clauses 5, 6, 7, 8 and 10 and any other obligations which by their nature survive termination;
(ii) each party retains the claims it may have against the other;
(iii) You must immediately pay any outstanding Fees.

13. Notices
(a) The Parties’ contact details for notices under this Agreement are as contained in the Authorisation or as otherwise notified by one party to another in writing from time to time.
(b) All notices must be in writing and can be given by:
(i) hand delivery between the hours of 9 am and 5.30 pm Perth Time;
(ii) registered post.
(c) A notice is deemed to be given and received:
(i) if delivered in accordance with clause 13.b.i on the next Business Day after delivery;
(ii) if sent in accordance with clause 13.b.ii, in 5 Business Days after the day of posting;

14. General Provisions
(a) No party may assign or otherwise deal in any way with its rights under this Agreement without the prior written consent of the other party.
(b) Unless explicitly stated, time is not of the essence and the Services will be provided within a Reasonable time as defined in Term 20 of the Definitions on page one.
(c) Nothing in this Agreement creates any relationship of partnership or agency between the Parties.
(d) If a provision is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
(e) Each party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.
(f) This Agreement and the Scope together form the entire agreement between the Parties about its subject matter and supersedes all other representations, arrangements or agreements. Except as expressly set out in this Agreement or the Scope, no party has relied on any representation made by or on behalf of the other.
(g) This Agreement may only be amended in writing signed by all the Parties.
(h) Any rights under this Agreement may not be waived or varied except in writing signed by the party to be bound.
(i) A party will not be responsible for a failure to comply with its obligations under this Agreement to the extent that its failure is caused by an event beyond the control of that party (“Force Majeure”) provided that the party so affected keeps the other party closely in formed and uses reasonable
endeavours to rectify the situation.
(ii) Without limiting any other right to terminate under this Agreement, if Force Majeure affects a party’s performance under this Agreement for a period of more than 30 consecutive days, the other party may immediately terminate this Agreement by written notice.
(k) Any action or thing that falls due to be done on a day that is not a Business Day will fall due on the next Business Day.
(l) The law of Western Australia governs this Agreement and each party submits to the jurisdiction of the courts of Perth, Western Australia.