Terms of Service

1. PARTIES

(a) Contractor.

Name: Rose Street Digital
Contact: Sara Allan
ABN: 90 471 634 334
Email: sara@rosestreetdigital.com

(b) Client.

Name: as per supplied quotation
ABN/ACN: as per supplied quotation

2. TERM AND MATERIAL DATES

(a) Commencement Date: as per supplied quotation
(b) Completion Date. Ongoing, until the work is completed, and subject to termination under Clause 8 of this Agreement.

3. PROJECT SPECIFICATIONS

Title: as per supplied quotation

Summary: as per supplied quotation

4. PAYMENT, EXPENSES, AND DELIVERABLES

(a) Payment Terms. Payment terms are strictly seven (7) days from the invoice date. Prices are in AUD. Invoices for ongoing projects are due on the final day of each month. Once payment is received, relevant monthly reporting is generated.
(b) Reimbursement of Expenses (as applicable). The Client will reimburse the Contractor's expenses (as applicable). Expenses need to be pre-approved by the Client.
(c) Termination Payment. The Client will pay the Contractor for the work done up until when the Contract ends and will reimburse the Contractor for any agreed-upon, non-cancellable expenses.

5. OWNERSHIP AND RIGHTS

(a) Ownership. The Client Owns All Work Product.
(b) Permitted Use By Contractor. Once the Contractor gives the work product to the Client and is paid in full, the Contractor will only have rights to the work outlined here:

  • The Client gives permission to use the work product as part of portfolios and websites, in galleries, and in other media, so long as it is to showcase the work and not for any other purpose.

  • The Client does not give permission to sell or otherwise use the work product to make money or for any other commercial use.

  • The Client is not allowed to take back this license, even after the Contract ends.

(c) Credit to the Contractor. The Client is under no obligation to give credit to the Contractor.

Agreement Terms

BACKGROUND

A. The Client has requested and the Contractor has agreed to provide the Services (including the Deliverables) in accordance with the Project Specifications to the Client from the Commencement Date.

B. The Parties have entered into this Agreement to record the terms between them.

THE PARTIES AGREE AS FOLLOWS

1. DEFINITIONS AND INTERPRETATION

In this Agreement, unless the context otherwise require:

  • Agreement means agreement for professional services agreement, (including the recitals, schedules, annexures and exhibits to it), as may later be amended or supplemented by the Parties in writing;

  • Business Day means Monday to Friday, excluding public holidays;

  • Commencement Date means the date specified as such in item 2(a) of the Schedule, or if not specified in that place, the date of execution or acceptance by the last Party to execute or accept this Agreement;

Claim means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against a person, however arising and whether ascertained or unascertained, or immediate, future or contingent;

Completion Date means the date specified in item 2(b) of the Schedule or as otherwise agreed;

Confidential Information means information that:

(a) is by its nature confidential;
(b) is designated by any Party as confidential; or
(c) a Party knows or ought to know is confidential,

and includes

(a) information of, or about, any entity in the Client, including financial information and other reports or records of or relating to the Client and its operations, acquired by the Contractor solely by virtue of the performance of the Services pursuant to this Agreement;
(b) information created, discovered, developed or made known to the Contractor by the Client during the period of, or arising out of, the Contractor's performance of the Services;
(c) trade secrets, procedures, designs, processes, inventions and marketing information of either Party;
(d) matters of a technical nature, research and development details, financial statements, books and records, details of asset holdings, liabilities, planning, management, marketing and promotional procedures, quotations, concepts, methods, Customer information, systems, databases and all sources of computer hard and software either Party;
(e) information relating to either Party’s customers and the Contractors including, lists of customers and the Contractors, details of contracts and dealings with customers and the Contractors and other parties; and
(f) any other information classifiable in equity as confidential information;

Client Intellectual Property means pre-existing Intellectual Property of the Client used in but not created as part of the development of the Deliverables by the Contractor, including the look and feel of the Client's website;

Defect means any performance characteristic of a Deliverables which makes the whole or any part of the Deliverables materially inoperable or unable to meet or materially inconsistent with the Project Specifications. Defective has a corresponding meaning;

Deliverables means an item, whether module development, software, website design, documentation, data migration services or otherwise, to be delivered or supplied by the Contractor under this Agreement, including those items specified in the Project Specifications;

Deliverables Acceptance Date means the date on which the Client must give notice to the Contractor confirming acceptance of the Deliverables as provided or, if any Defects are located, give notice for the Contractor to rectify such Defects;

Expenses means any expenses incurred by the Contractor in performing the Services;

Intellectual Property means:

(a) copyright;
(b) all rights conferred under statute, common law or equity in relation to inventions (including patents);
(c) registered and unregistered trademarks;
(d) registered and unregistered designs;
(e) circuit layouts;
(f) confidential information; and
(g) all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields;

Force Majeure means any event beyond the reasonable control of the Party affected and includes any event due to natural causes that happens independently of human intervention;

GST means any tax, levy, charge or impost levied on the value of any facilities, Deliverables, services or other things supplied by the Contractor to the Client under this Agreement by any other Bill or Act of the Parliament of the Commonwealth of Australia;

Material means any material, whether tangible or intangible, and includes:

(a) documents, records, equipment and any other Deliverables; and
(b) software (whether in human or machine-readable form), data and any other information;

Services means services provided or to be provided by the Contractor to the Client in accordance with the Project Specifications, including the development and/or delivery of any Deliverables.

Payment means the fees payable to the Contractor for Services performed as referred to in item 4(a) of the Schedule;

Project Specifications means the Project Specifications as referred to in the selected item 3 of the Schedule;

Taxes means all taxes imposed by any government or authority of Australia or elsewhere including, but not limited to, all income tax, PAYG tax, capital gains tax, stamp duty, financial institutions duty, Customer tax, payroll tax and GST;

Tax Invoice means an invoice that has been submitted to the Client and:

(a) the amount claimed in the tax invoice is due for payment pursuant to this Agreement;
(b) the tax invoice complies with the requirements of the GST law;

Term means the period from the Commencement Date to the Completion Date unless otherwise terminated earlier by either party pursuant to Clause 8 of this Agreement;

Termination Payment means the fees payable by the Client to the Contractor on termination of this Agreement pursuant to Clause 8, as calculated under item 4(c) of the Schedule;

Third-Party Materials means textual, graphical, audio or like materials, together with any software, which is incorporated into a Deliverables;

Third-Party Rights means Intellectual Property Rights owned by or licensed to third parties including:

(a) computer programs owned by third parties and licensed by Contractor and any subcontractors of Contractor to develop a Deliverables; and
(b) any literary, dramatic, artistic and musical works owned by third parties and licensed to Contractor for inclusion in a Deliverables;

Third-Party Software means any computer program or modification or enhancement of a computer program, which is not owned by the Contractor or a related corporation of the Contractor and which is used by the Contractor in connection with performing the Services, or which is at any time supplied to the Client by the Contractor or its subcontractors or incorporated into a Deliverables;

Work Product means the finished product, as well as any drafts, texts, graphics, photos, videos, designs, visual elements, trademarks, code and anything else that the Contractor works on, conceives, creates, designs, develops, invents or reduces to practice as part of this project.

2. SERVICES

The Contractor will:

(a) Provide the Services to the Client;
(b) develop and provide to the Client the Deliverables; and
(c) deliver the Services in accordance with:

(i) the Project Specifications;
(ii) the other terms and conditions of this Agreement (including any Change Requests).

3. PROJECT

3.1 Project. The Contractor will provide to the Client:

(a) Services in the form of Ongoing Works in accordance with the Project Specifications.
(b) Deliverables which conform to the requirements specified in the Project Specifications.

3.2 Time Frame. The Contractor must provide the Services and Deliverables required under Clause 3.1 to the Client by no later than the Completion Date (as applicable).

3.3 Deliverables Acceptance Date. The Client must notify the Contractor within 7 days from receipt of the Services if it confirms acceptance of the Deliverables as provided or, if any Defects are located, give notice for the Contractor to rectify such Defects.

3.4 Change Requests. The Client must notify the Contractor at least two weeks prior to the Completion Date of any Change Requests. The Contractor will provide the Client with a quote for any additional Payments or Expenses associated with the Change Requests within one week. The Contractor will not commence any works under the Change Requests until the quote is accepted in writing by the Client.

4. PAYMENTS AND EXPENSES

4.1 The Client must pay the Payment to the Contractor upon completion of the Project according to the Project Specifications.

4.2 Pursuant to Clause 4.1, the Contractor will invoice the Client for work done at the end of the project. The Client will pay the amount owed within 7 days of receiving the invoice.

4.3 In the event that payment required under Clause 4.2 is not made within the required time frame, an additional amount of a late fee of 10.0% per month on the outstanding amount is due.

4.4 The Client agrees to pay for the documented expenses in the Project Specifications and for any other expenses the Contractor may incur after receiving authorisation and approval from the Client in writing.

5. OWNERSHIP

5.1 Assignment. The Contractor agrees to assign and hereby assigns, absolutely and beneficially to the Client all rights, titles and interests to all existing and Intellectual Property Rights arising out of the Deliverables. The Client agrees that the Contractor may use the Deliverables for the purpose outlined in item 5(b) of the Schedule.

5.2 Proof of Ownership. The Contractor agrees to assist the Client to prove ownership of the Deliverables if required in the future provided that any required expenses are paid by the Client.

5.3 Pre-Existing Material. This Agreement does not affect any pre-existing Intellectual Property rights owned by the Contractor or licenced from a third party which may be used to create the Deliverables and performance of the Services or part of the Deliverables.

5.4 Contractor's Right to use IP. The Client agrees to grant permission for the Contractor to use the Client’s Intellectual Property for the sole purpose of the creation of the Deliverables and performance of the Services or part of the Deliverables.

5.5 Contractor's Rights. Permitted Uses The Client grants permission in the form of a licence for the Contractor to use the Deliverables in the following ways: The Client gives permission to use the work product as part of portfolios and websites, in galleries, and in other media, so long as it is to showcase the work and not for any other purpose. The Client does not give permission to sell or otherwise use the work product to make money or for any other commercial use. The Client is not allowed to take back this license, even after the Contract ends.

6. NON-SOLICITATION

6.1 For the duration of this contract, the Contractor agrees not to:

(a) encourage or induce any of the Client's employees or service providers to stop working for the Client;
(b) encourage or induce any of the Client's customers or clients to stop doing business with the Client; or
(c) employ or engage anyone who has worked for the Client within six months of the Completion Date.

6.2 Clause 6.1 applies to actions taken by the Contractor for itself or on behalf of Third Parties.

6.3 Clause 6.1(c) is not breached if the Contractor hires a former Client employee not directly linked to this project through general advertisements to the public.

7. REPRESENTATIONS

7.1 Authority To Enter Into Contracts. The Parties warrant that they each have the authority to enter into this Agreement and perform all of the obligations required.

7.2 Degree of Skill, Care and Diligence. The Contractor represents and warrants that it will perform the Services with the degree of skill, care and diligence expected of a consultant experienced in providing the same or similar services; that it will comply with any applicable laws and standards relating to the performance of the Services; and that any materials supplied will be reasonably fit for the purpose for which they are supplied.

7.3 No infringements of Intellectual Property Rights - Contractor. The Contractor warrants that the Deliverables, the performance of the Services and the Deliverables will not infringe the Intellectual Property Rights of any person including any Third Party Rights, Materials or Software.

7.4 Compliance with Laws and Defamation. The Contractor warrants that the creation of the Deliverables, performance of the Services or delivery of the Deliverables will comply with the laws of Australia and that none of the material created will be defamatory or obscene.

7.5 Client Review. The Client warrants that it will review the Deliverables, answer any questions regarding the Project Specifications and provide feedback within a reasonable time if requested.

7.6 No Infringements of Intellectual Property Rights - Client. The Client warrants that any material provided to the Contractor for the purpose of incorporation into the Deliverables will not infringe the Intellectual Property Rights of any person including any Third Party Rights, Materials or Software.

8. TERM AND TERMINATION

8.1 Termination Clause. This Agreement commences or is deemed to have commenced upon acceptance of any written quotation, and continues until the work is completed, or earlier termination in accordance with this Clause 8.

8.2 Termination. Either Party may terminate this Agreement for any reason with 7 days written notice to the other party in compliance with Clause 13.

8.3 The Contractor must immediately cease working on the Deliverables if it sends or receives a notice under Clause 8 or unless otherwise agreed upon in writing.

8.4 Ongoing Clauses. The following clauses may continue to apply even after termination of the Agreement pursuant to Clause 8:

(a) Clause 5 (Ownership)
(b) Clause 6 (Non-Solicitation)
(c) Clause 7 (Representations)
(d) Clause 10 (Confidential Information)
(e) Clause 11 (Limitation of Liability)
(f) Clause 12 (Indemnity)
(g) Clause 14 (General)

9. RELATIONSHIP OF PARTIES

9.1 The Parties agree that it is intended that this Agreement shall create the relationship of Client and Independent contractor between them and that it is not their intention to create any other relationship and, in particular, the relationship of employer and employee or the relationship of partners. The Contractor shall not:

(a) represent itself or allow itself to be represented as an employee or agent of the Client; or
(b) by virtue of this Agreement be or become an employee or agent of the Client.

9.2 The Parties agree that:

(a) the Contractor will use its own equipment, tools and material to complete the work;
(b) the Contractor is responsible for the day to day performance and operation of the project;
(c) the Client will not intervene and control the way in which the Contractor carries out the work; and

9.3 Neither party can bind the other to any agreement with a third party.

10. CONFIDENTIAL INFORMATION

10.1 The Contractor agrees to keep the Confidential Information provided to it or obtained by it pursuant to or as a result of this Agreement strictly confidential and not to disclose or divulge the same to any other person or entity except if disclosure is required by law.

10.2 Both the Client and the Contractor agree to keep Confidential Information relating to a Third-Party provided or obtained as a result of this Agreement strictly confidential and not to disclose or divulge the same to any other person or entity except if disclosure if required by law.

10.3 Each Party must also:

(a) use the Confidential Information, only for the purpose of this Agreement;
(b) maintain the confidentiality of the Confidential Information and ensure that the Confidential Information is not disclosed to or used for the benefit of any third party without the prior written consent of the other Party;
(c) take all steps and do all things as may be necessary, prudent or desirable in order to safeguard the confidentiality of the Confidential Information.

11. LIMITATION OF LIABILITY

Neither party is liable for breach-of-contract damages that the breaching party could not reasonably have foreseen when it entered this contract.

12. INDEMNITY

12.1 Liability of Client. The Client will not be liable to the Contractor for:

(a) any variations to the Services or Deliverables made by the Contractor without the prior written approval of the Client;
(b) any loss arising out of use of the Services or the Deliverables not performed in accordance with this Agreement; and
(c) the accuracy of resources, information or documents provided to or for the use of the Contractor.

12.2 Liability of Contractor. The Contractor will not be liable to the Client for:

(a) In no circumstances will the Contractor be liable for any loss of interest, revenue, profit, or any data, or for any consequential, indirect, incidental or special damages suffered by the Client relating to the subject matter of this Agreement, including but not limited to:

(i) the maintenance of confidentiality of any and all access codes, log in details, and passwords;
(ii) the installation of security mechanisms to maximise the use of the Services;
(iii) the failure of computer equipment, software, or any other Deliverable used in connection with use of the Services;
(iv) the unauthorised use of the Services, access codes, log in details, and passwords;
(v) the failure to achieve any goals through the use of the Services; and
(vi) any and all activities in connection with the improper or unauthorised use of the Services.

(b) To the fullest extent permitted by law, Contractor's liability to the Client (whether such liability is in contract, tort, negligence, or for any breach of warranty, representation or statute) for any act or omission done in connection with the subject matter of this Agreement, will be limited in aggregate to an amount equal to any outstanding Fees.

12.3 Indemnity of the Client. The Contractor agrees to indemnify the Client on a full indemnity basis from and against all third-party claims or proceedings arising out of:

(a) the work completed by the Contractor under this Agreement;
(b) a breach of the Contractor's obligations under this Agreement; or
(c) a breach of a Representation or Warranty under Clause 7 of the Agreement.

12.4 Indemnity of the Contractor. The Client agrees to indemnify the Contractor on a full indemnity basis against any loss or damage from and against all third-party claims or proceedings arising out of:

(a) a breach of the Client’s obligations under this Agreement; or
(b) a breach of a Representation or Warranty under Clause 7 of the Agreement.

13. NOTICE

13.1 Form of Notice. All notices and other communications by or to the Parties to this Agreement shall be in writing and signed by a director, secretary or other duly authorised officer or the solicitor of the party giving such notice or communication.

13.2 Addresses for Notices. Notices and communications may be delivered by hand or sent by post or email to the party to which it is addressed at the head of this Agreement or at such other address as the addressee may specify for such purpose to the other parties by notice in writing.

13.3 Time of Service. Such notices and communications shall be deemed to be duly given, served or made when the recipient has replied confirming receipt of the email.

14. GENERAL

14.1 Assignment. The Contractor cannot assign its rights or delegate its obligations under this Agreement to a third party without first receiving the Client’s written permission. The Client may assign its rights and delegate its obligations under the Agreement to a third party in the event that the Client is bought out or on-sells the work product to another party.

14.2 Counterparts. This Agreement may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to constitute one and the same instrument.

14.3 Further Assurances. Each Party to this Agreement shall do all things necessary and sign, execute and deliver all deeds and other documents as may be legally necessary or reasonably required of it by notice from another Party to carry out and give effect to the terms and intentions of this Agreement and to perfect, protect and preserve the rights of the other parties to this Agreement.

14.4 Costs. Each Party must bear its own costs of and incidental to the preparation and execution of this Agreement. The Service Contractor must pay all stamp duties or taxes of a similar nature on this Agreement.

14.5 Force Majeure. If by an act of Force Majeure a Party is unable to perform in whole or in part any obligation of this Agreement, that Party is relieved of that obligation to the extent and for the period that it is unable to perform and is not liable in respect of such inability.

14.6 Severability. This Agreement shall, so far as possible, be interpreted and construed so as not to be invalid, illegal or unenforceable in any respect, but if a provision, on its true interpretation or construction is held to be illegal, invalid or unenforceable:

(a) that provision shall, so far as is possible, be read down to the extent that it may be necessary to ensure that it is not illegal, invalid or unenforceable and as may be reasonable in all the circumstances so as to give it a valid operation; or
(b) if the provision or part of it cannot effectively be read down, that provision or part of it shall be deemed to be void and severable and the remaining provisions of this Agreement shall not in any way be affected or impaired and shall continue notwithstanding that illegality, invalidity or unenforceability.

14.7 Independent Legal Advice. The Client acknowledges that it has read the terms of this Agreement and understands the same. If further acknowledges that it has had the opportunity to obtain independent legal advice regarding the effect and impact of the Agreement.

14.8 Governing Law and Jurisdiction.

(a) This Agreement shall be governed by and construed in accordance with the laws of Australia.
(b) The Parties irrevocably submit to and accept, generally and unconditionally, the nonexclusive jurisdiction of any of the Courts of Australia with respect to any legal action or proceedings which may be brought at any time relating in any way to this Agreement.

14.9 Signatures. The Client and the Contractor agree to the terms of this document by accepting the written quotation supplied by the Contractor. This can be done through Xero’s online portal or in writing via email. This acceptance counts as originals for all purposes.

14.10 Variations. No variation of this Agreement, nor consent to a departure by a Party from a provision, shall be of effect unless it is in writing, signed by all the Parties or (in the case of a waiver) by the Party giving it. Any such variation or consent shall be effective only to or for which it may be made or given.

14.11 Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to its subject matter and supersedes all prior negotiations, understandings and agreements, whether oral or written.

THE PARTIES HERETO AGREE TO THE FOREGOING AS EVIDENCED BY ACCEPTANCE OF A WRITTEN QUOTATION IN XERO’S ONLINE PORTAL OR ACCEPTANCE OF A WRITTEN QUOTATION VIA EMAIL.