Website Project Agreement Terms & Conditions
Untamed Designs, now The Untamed Project (untameddesigns.com.au and now TheUntamedProject.com)
Wherein “The Provider” describes the business Untamed Designs/The Untamed Project and “The Client” describes the client receiving the services provided.
2.1. Website Design & Website Redesign Project Outline:
All Inclusions are listed on the attached to the Agreement Proposal from Untamed Designs/The Untamed Project.
At Untamed Designs, we believe in empowering you as the client with your own access to the accounts which hold your website together. These accounts begin with your Hosting (where your website is held) and the Builder we use (that allows for ease-of-use of your website once we finish your design). In regards to this, please read the below exclusions.
What’s not included:
More than one full revision session (minor adjustments can be made during the Quality Assurance Period and you have free reign with these!)
Website Tools:
Website software monthly costs
Domain + Domain Emails and/or Advanced DNS Capabilities
Email Marketing Provider
Please note as outlined above, Website Hosting and other elements/plugins/software to help run your website efficiently, Domains and email marketing apps are not included in order to empower you with full access to your website elements once we have completed the project and parted ways. It is my belief that no one should be tied to their Website Designer for every minor tweak, edit, update etc.
Web page and website back-end maintenance is not included in this project but can be discussed at any time.
For any additional elements not listed above, the Provider will provide a quote and an estimated timeline to provide the additions. Any additions will be completed after the original project has been completed. The client can choose whether or not to move forward with these additions.
If the Client chooses any further domains, emails, fonts, graphics, plugins or stock photos that are an additional cost from a 3rd party outside of the agreed-upon Package, it will be the Client’s responsibility to purchase those items and make them available to the Provider.
2.2. Investment and Payment Terms:
Investment Total:
Your investment total has been calculated and provided to you within your attached Proposal from Untamed Designs/The Untamed Project.
For Payment Plans: the first payment will be considered a deposit and will be required to be paid within 48 hours of agreeing to the Proposal to hold the future spot in the Provider’s calendar or to begin the project immediately.
Please Note: For all extended Payment Plans beyond a deposit and final payment, payments correlate with a Stage of your website design which is broken into 3 Stages. For example, if the payment plan is over 3 months, Payment 2 correlates with the work in Stage 2 and so on. If for example, Payment 2 is delayed, all Stage 2 and 3 work will be put on hold until payments continue. Please view the below description in 2.2B for Payment plans that extend beyond the launch date.
For Paid In Full: There is a minimum of 50% down as the deposit and will be required to be paid within 48 hours of agreeing to the Proposal to hold the future spot in the Provider’s calendar or to begin the project immediately. The final balance will be due within 5 weeks of the project’s original agreement acceptance date, nearby to the projects finish date.
Once you agreed to and/or signed the Proposal you have entered into this investment agreement with Untamed Designs/ The Untamed Project.
If you have not selected an extended payment plan within the proposal, it is assumed that you would like to pay in full for your project and the Paid in Full terms will apply. Please note for all payments a minimum 1.11% processing fee applies.
This contract is for the services listed in the attached Proposal from Untamed Designs/The Untamed Project and the above (under “Design Project Outline”) only. Additional work requested by the Client that is not included in the Package must be booked, scheduled and paid for separately, in advance and is subject to the Provider’s availability
2.2 B. Payment Terms:
The following terms shall dictate the cost and payment schedule Client is to abide by for services provided.
Deposit: Client agrees that the deposit amount or first instalment payment (also agreed to be a deposit) will be paid in advance of any Services being Provided as a deposit. This deposit will go towards the Cost of Services and is a non-refundable deposit.
Payment Methods: Client understands and agrees that payment methods available are limited to what Provider has chosen to accommodate with the online payment system. Payment plans will be activated on a subscription basis.
Late Payment: Late payments will be subject to a late fee of ten percent (10%) of the total amount due. Provider reserves the right to cease any and all Services in the event that Client fails to make payment on time.
Failure to Pay: Failure to pay Provider within your payment plan time frame shall invalidate any copyrights granted to Client within this Agreement. If you continue to use the website after failing to pay the outstanding balance, legal action will be pursued. The Provider will remove their design from the client’s website upon failure to pay and will cancel any ties between the Client and the Provider.
Payment Plans that extend beyond the launch date: With such payment plans, limited access will be granted to the website owner for administrative abilities until the website design is paid in full at the end of the original payment term (ie: 6 monthly payments must be paid within the time frame of 6 months), otherwise please refer to the “Failure to Pay” section above.
2.3. Client Responsibilities:
Client agrees to provide all content, images, and copy needed for the project to the Provider at a minimum of 24 hours prior to the allotted project start date.
Client agrees to meet via video chat with Provider if the project needs more information in order to meet the completion date requested by the client. The Client of course has the chance to book meetings for times/dates when they and the Provider are both available.
Client agrees that the project comes with 1 revision session, with the revision work to be completed by the Provider in a reasonable timeframe following the initial completion of the designs if needed.
Client will be updated throughout the project as the design unfolds with video design check-ins to ensure that one full revision at project completion will likely be sufficient. Adjustment requests at Check-Ins are to be of reasonable size/scope. Any further revisions will be invoiced at a discounted hourly rate of $45.
Communication
Any and all communication between Provider and Client will be directly between the two parties, and may include third parties (for example, a photographer or copywriter) if both Provider and Client agree to communicate with third parties. Provider will not communicate with a third party on your behalf or at your request. Client is responsible for all communication with Provider related to any other vendors Client may choose to hire.
Client + Provider both agree to reply to each other within a reasonable time frame within business work hours as promptly as possible. Client understands that if they do not respond to Provider’s communications within the agreed-upon timeframe, the estimated project timeline may be affected and extended. If the project extends beyond the End date due to non-responsiveness of Client, a fee of $75 per day past the End Date will be charged. The client may book in for an Exclusive Booking at the Provider’s next available date to complete the work and forgo the daily charge if the Exclusive Booking is booked in officially.
Client agrees to attend all agreed-upon design-prep or revision meetings, if needed, for the project to be completed successfully.
Provider is available via email only during the business week (Australian Western Standard Time), and will not reply to emails on the weekends, evenings, vacations or holidays. Occasional email contact may be made by Provider out of typical “office hours”, but is to not be expected. Provider does not expect Client to respond to emails on weekends, evenings, vacations or holidays or outside of typical “office hours”.
Creative Approach: Dissatisfaction with the creative approach, the art direction, the decisions made by the Provider related to the Services Provided, or with any other aspect of the services provided does not constitute a valid reason for failure to abide by any term of this Agreement.
2.4. Deliverability:
Cancellation Policies
If the Client cancels before the project “start date”: The deposit or first payment of the instalments will remain non-refundable and the client will be relieved of all further instalments if applicable.
If the Provider must cancel before the start date: A full refund will be made and Client will be relieved of any further instalments, if applicable – or Client can choose to reschedule to the next available date on the Provider’s schedule.
If the Client fails to complete and handover all the pre-project work before the Start Date, the following options are available:
A) Provider will start the project on the start date (if the full payment or first invoice has been paid) and complete as much of the project as possible with the content available at the Start Date. Client is responsible for completion of any part of the project that Provider was unable to complete due to an incomplete prep-work handover. Client may reserve an Exclusive Booking with the Provider at Current Client Pricing to complete the project. Exclusive Booking availability is dependent on Provider’s schedule + availability.
B) Client may pause the project, pay a $150 rescheduling fee, and select a new project start date based on the Provider’s schedule + availability.
C) Client may cancel the project and forfeit the deposit or first instalment payment.
AFTER THE PROJECT START DATE:
If the Provider must cancel the project for any unforeseen personal reason after project begins, Client has two choices:
A) Receive a full refund. The Provider agrees to deliver + release any work done until that point.
B) Choose to reschedule and apply fees paid to a future project date.
The Provider may terminate this contract due to the Client not complying with any part of the contract agreed to here. If the Provider chooses to terminate due to Client’s non-compliance, no refunds will be made, and Client will be released from any further payments owed. The Provider agrees to deliver + release any work done until that point to Client.
If the client feels they must cancel after the Start Date due to unforeseen circumstances, the Client has two options:
A) Cancel the project and all payments which have been made remain non-refundable.
B) Client may pause the project, pay a $150 rescheduling fee, and select a new project start date based on the Provider’s schedule + availability. (The Provider reserves the right to choose to waive the rescheduling fee if the Client has truly unforeseen circumstances).
Provider will use every effort to provide services in a professional and timely manner in accordance with the terms below.
Force Majeure: Neither party shall be liable to the other for any failure to perform any obligation under any Agreement which is due to an event beyond the control of such party including but not limited to any Act of God, terrorism, war, Political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man made eventuality outside of our control, which causes the termination of an agreement or contract entered into, nor which could have been reasonably foreseen. Any Party affected by such event shall forthwith inform the other Party of the same and shall use all reasonable endeavors to comply with the terms and conditions of any Agreement contained herein.
Failure to Perform Services: In the event the Service Provider is unable to perform the services stipulated in this agreement due to illness or other unforeseen circumstances, the Service Provider will make a reasonable effort to notify the Client as soon as possible and will work with the Client to reschedule the services. In the event the Service Provider is unable to reschedule the services, the Client will be refunded in full for any prepaid services.
Client Responsibilities: Client agrees to provide all materials necessary for the completion of the work, provide final approvals of any work completed and maintain consistent communication on projects. In the even that Client is unwilling or unable to meet Client Responsibilities, Provider is within their rights to refuse to provide services, and Client will still be obligated to pay for any and all services provided up to that point. This Agreement is not transferable to any other party without the expressed written consent of both Service Provider and Client.
2.5. Exclusivity:
Client grants Provider exclusive rights to performing the services stated within this Agreement and cannot unilaterally decide to split Services, Payments, and/or project Deliverables with any other service provider.
If Client wishes to use another Services Provider for the purposes of the Services outlined in this Agreement, Client may request termination of this agreement per the terms of the Termination of Services clause within this Agreement obtain the explicit written permission of Provider, or sign a new Client Services Agreement with Provider accommodating the additional party.
2.6. Liability:
Dispute Resolution
The parties must endeavour to settle any dispute in connection with the contract by mediation. Such mediation is to be conducted by a mediator who is independent of the parties and appointed by agreement of the parties or, failing agreement within 7 days of receiving any party’s notice of dispute, by a person appointed by the Chair of Resolution Institute, or the Chair’s designated representative.
The Resolution Institute Mediation Rules shall apply to the mediation.
It is a condition precedent to the right of either party to commence arbitration or litigation other than for interlocutory relief that it has first offered to submit the dispute to mediation.
Maximum Damages: Client understands and agrees that the maximum damages they may be entitled to in the event of a legal dispute between Client and Provider are not to exceed the total Cost of Services detailed in this Agreement.
Intellectual Property
3rd Party Intellectual Property: Any 3rd party Intellectual Property used by Provider for the purposes of providing Services outlined in this Agreement shall be used with the proper licensing for the uses Client requires.
Client Right to Use: As part of this Agreement, Provider grants to Client the right to use any works created for personal or commercial purposes once the project is paid in full.
Copyright
Provider holds full ownership of rights to all designs created until the project concludes and payment is made in full, at which time copyrights of designs and copy are passed over to Client.
Provider holds no ownership rights to any content or designs provided by Client.
Licensing
The Business promises that it holds all licenses necessary to perform the work, that such licenses are valid and effective as of the date any work is performed or services provided, and that all work performed or services provided will be done in compliance with all applicable federal and state, or local laws and regulations.
Independent Contractor
It is understood and agreed that Provider is acting as an independent contractor in the performance of the services hereunder, and nothing herein contained shall be deemed to create an agency relationship between Provider and Client.
Code of Fair Practice
Provider warrants and represents that, to the best of their knowledge, the work assigned hereunder is original and has not been previously published, or that consent to use has been obtained on an unlimited basis; that all work or portions thereof obtained through the undersigned from third parties is original or, if previously published, that consent to use has been obtained on an unlimited basis; that Provider has full authority to make this agreement; and that the work prepared by Provider does not contain any scandalous, libelous, or unlawful matter. This warranty does not extend to any uses that Client or others may make of Provider’s product that may infringe on the rights of others. Client expressly agrees that it will hold the Provider harmless for all liability caused by the Client’s use of the Provider’s product to the extent such use infringes on the rights of others.
Consumer Guarantees
(a) Nothing in this Agreement is intended to exclude, restrict or modify the rights which either of the parties may have under the Australian Consumer Law. (b) A failure to comply with the Consumer Guarantee provisions under the Australian Consumer Law to the extent they apply to this Agreement, the Business’ liability is limited to (at its election):
(i) in the case of a supply of goods: (A) replacing the goods or supplying equivalent goods; (B) repairing the goods; (C) paying the cost of replacing the goods or acquiring equivalent goods; or (D) paying the cost of having the goods repaired; and
(ii) in the case of a supply of services: (A) resupplying the services or (B) paying the cost of having the services supplied again.
Warranty and Limitation of Liability
Client warrants that Provider’s use of any and all materials furnished by Client hereunder will not violate or conflict with any Australian intellectual property rights of any third persons including, but not limited to, copyrights, patents and trademarks. Provider warrants that the deliverables and all work products created for and provided to Client by Provider will not violate or conflict with any Australian intellectual property rights of any third persons including, but not limited to, copyrights, patents and trademarks. Provider further warrants that all services will be performed in a professional and workmanlike manner. Provider makes no warranty with respect to third-party rights in any materials furnished to Provider by Client. Except as set forth in this paragraph, neither party makes any express or implied representation or warranties, including–but not limited to–implied warranties of merchantability and fitness for a particular purpose.
Neither party shall be liable hereunder for special, indirect, consequential or incidental losses or damages of any kind or nature whatsoever, including but not limited to lost profits, lost records or data, lost savings, loss of use of facility or equipment, loss by reason of facility shutdown or non-operation or increased expense of operations, or other costs, charges, penalties, or liquidated damages, regardless of whether arising from breach of contract, warranty, tort, strict liability or otherwise, even if advised of the possibility of such loss or damage, or if such loss or damage could have been reasonably foreseen.
Except as otherwise expressly provided herein, damages shall be Client exclusive remedy hereunder and Provider’s liability hereunder, regardless of the form of action, shall not exceed the total amount paid for services under this agreement. Provider’s liability shall not be so limited with respect to injuries to persons or damage to tangible property arising out of the negligence or willful misconduct of Provider or its subcontractors.
While performing tasks related to this contract and after the contracted work is complete, the Provider cannot accept liability for losses caused by the unavailability, malfunction, hacking of the website by another individual, or any other malfunction or interruption of the Client’s website. Provider cannot guarantee that its work will be error-free and so Provider also cannot be liable to the Client or any third party for damages, including lost profits, lost savings or other incidental, consequential or special damages arising out of the operation of or inability to operate this website and any other web pages, even if the Client has advised Provider of the possibilities of such damages.
No action, regardless of form, arising under this Agreement, may be brought more than one year after the cause of action has arisen, except that an action for nonpayment may be brought within one year after the date of the most recent payment
Entire Agreement
This agreement is the entire agreement between the parties with respect to its subject matter and there are no other representations, understandings or agreements between the parties relative to such subject matter. No amendment to, or change, waiver or discharge of any provision of this agreement shall be valid unless in writing and signed by any authorized representative of the party against which such amendment change waiver or discharge is sought to be enforced.
The action of sending and receipt of this agreement via electronic method will hold both parties in notice of these terms. The Provider as sender and the Client as the recipient will acknowledge acceptance of these terms by signing via HelloSign or Electronic Signature. Electronic signatures shall be considered legal and binding.
This agreement must be acknowledged, signed electronically by both parties and acknowledged by Provider before this agreement is binding and the Start and End Dates are reserved. The first instalment payment must be made by the Client before any services will begin to be provided by the Provider on the Start date.
2.7. Termination of Services:
This Agreement is not a contract for employment and both Client and Provider reserve the right to terminate the Agreement at any time per the following terms.
Notice of Termination: Written notice of 14 days must be given before the termination of services. Client will still be responsible for any payments due resulting from Services provided during this period. Provider will be responsible for continuing to provide Services during this time.
All resources (developer tools, logins, hosting etc) provided by Untamed Designs/The Untamed Project to manage the functionality of the website created, will be transferred wherever possible or the work between Client and Prover is ended/cancelled and the client is then responsible for finding suitable replacements at their own cost.
2.8. General Provisions:
Jurisdiction: For any and all claims arising out of or in connection with this Agreement or the services provided hereunder shall lie exclusively with the state or federal courts located in the State or Territory in which Provider resides.
Severability: If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
Effective Notice: Provider and Client shall provide effective notice (“Notice”) to each other via email. (Provider email: amanda@untameddesigns.com.au)
Entire Agreement: This Agreement constitutes the entire agreement between the Provider and the Client with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements or understandings, written or oral, between the parties with respect to such subject matter.
2.7 Privacy & Confidentiality:
Client and Provider agree all emails and other correspondence are to remain private. NO terms of this contract are to be shared with anyone other than parties involved. Pricing is strictly confidential.
Provider understands that the Client may be providing confidential information about their business throughout the course of the project and agrees not to disclose that information to any third or utilize it in any way without express consent from the Client.
Provider is responsible for safeguarding confidential client information such as account numbers, passwords and license keys.
Client and Provider agree that no design work will be shared publicly online or via social media until project is complete, fully paid for and handed over to the client unless express written permission to do so is agreed upon by both parties. Doing so is terms for immediate termination of the contract.
Confidential and Proprietary Information:
Each party acknowledges that information disclosed to it by the other in connection with this agreement is confidential and proprietary and that it shall remain the property of the disclosing party. Each party shall treat all information from the other as confidential and proprietary. The receiving party shall take all reasonable and necessary precautions to prevent such information from being made known or disclosed to any person or entity except in accordance with this engagement. However, if the receiving party is required by legal process or action of government agencies to disclose any information, it may do so. The receiving party shall promptly notify the other of such requirements so that the other may take whatever action it deems appropriate to protect such information against disclosure.
Confidential information does not include information, technical data or know-how which:
– Is in the possession of the receiving party at the time of disclosure as shown by the receiving party’s files and records immediately prior to the time of disclosure; or
– Prior or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any inaction or action of the receiving party or is approved for release by the disclosing party.
Provider shall not be precluded from using data regarding Client received during the performance of this engagement in materials published by Provider provided that Client is not identified nor identifiable as the source of the data.
Client shall treat as confidential all information, records, computer files and documents of Provider and handle and dispose of them in the same fashion as required of Provider.