Web Construct SA
ABN: 48443137535
TERMS AND CONDITIONS OF ENGAGEMENT FOR SERVICES
1. Definitions
1.1 “Web Construct SA” means the Web Construct SA Web Solutions business, its executors, agents, employees, or assigns.
1.2 “Quotation” means the quotation attached to these terms. To the extent of any inconsistency between these terms and the Quotation, the Quotation prevails.
1.3 “Services” means the services specified in the Quotation and/or any other services agreed to in writing by Web Construct SA.
1.4 “Client” means the person/entity that requests and/or receives the Services provided.
1.5 “Fee” means the fee(s) specified in the Quotation and/or otherwise agreed to by Web Construct SA in writing, (including a fee based on hourly rates), for the Services.
1.6 “Contract” means the contract between Web Construct SA and the Client for the provision of Services, which among other things incorporates these terms.
2. Effect
2.1 These terms prevail over any terms issued by the Client, unless otherwise agreed by Web Construct SA in writing. These terms may only be varied with the written consent of Web Construct SA.
3. Web Construct SA’s Responsibilities and Obligations
3.1 Web Construct SA agrees to perform the Services required by the Client with due care, skill and diligence;
3.2 Web Construct SA agrees to endeavour to perform the Services in a timely manner, as agreed, and in accordance with the requirements of the Client, to the extent that it is within Web Construct SA’s reasonable control to do so;
3.3 Web Construct SA gives no warranty as to the efficacy or expediency of the Services.
4. Client’s Responsibilities and Obligations
4.1 The Client agrees to;
4.1.1 provide Web Construct SA with all relevant information and documents relating to the Client’s requirements;
4.1.2 promptly and satisfactorily answer all reasonable enquiries and where possible, provide any information reasonably requested by Web Construct SA;
4.1.3 take all reasonable steps to avoid doing or omitting anything which may hinder/delay Web Construct SA in performing the Services;
4.1.4 advise Web Construct SA in writing of any material fact that may affect the performance of the Services;
4.1.5 pay for all fees and charges in connection with the performance of the Services;
4.1.6 discharge its obligations under the Contract reasonably and in good faith;
4.1.7 acknowledge that the Services performed by Web Construct SA are opinion based and Web Construct SA gives no warranty for the efficacy or expediency of the Services; and
4.1.8 Accepts Web Construct SA’s right to sub-contract the whole or any part of the Services;
5. No Warranty
5.1 Except as provided here or required by mandatory operation of law, Web Construct SA makes no warranty whether express or implied in relation to the performance of the Services.
5.2 Web Construct SA gives no warranty for the efficacy or expediency of the Services. The Services represent the professional opinion of Web Construct SA and accordingly, other suitably qualified/accredited professionals may differ in their opinion.
5.3 All information produced from the Services, (as contained in the report or other similar product), is based entirely upon the information provided by the Client. Web Construct SA is not responsible for verifying that information. Accordingly Web Construct SA gives no warranty in relation to the stated facts provided by the Client.
6. Payment of Fee and Expenses
6.1 The Client must pay Web Construct SA the Fee specified in the Contract for the performance of the Services plus related disbursements at the times specified in the Contract. If no fee or basis for calculating the Fee has been agreed, then Web Construct SA shall be paid a reasonable fee, taking into consideration Web Construct SA’s hourly rate as at the time the Services are performed.
6.2 The Client must pay invoices issued by Web Construct SA for the Services performed, within thirty (7) days of receiving the said invoices, unless otherwise agreed in writing. Web Construct SA may halt performance of the Services until payment of all outstanding invoices has been received by Web Construct SA.
6.3 Web Construct SA may withhold any information, results or reports arising from the performance of the Services, until payment of the Fee has been received by Web Construct SA.
6.4 The Fee is inclusive of Goods and Services Tax.
6.5 At any time, Web Construct SA may require payment in advance for any part (or all) of the Fee.
7. Variations
7.1 The Client may request a variation to the scope or timing of Services by notice in writing to Web Construct SA. Web Construct SA shall endeavour to comply with such request (any acceptance of the variation by Web Construct SA must be made in writing) provided that the Fee shall be reasonably increased in respect of any variation resulting in increased costs to Web Construct SA.
7.2 Web Construct SA may request a variation to the scope or timing of the Services by notice in writing to the Client. Any such variation request shall be negotiated in good faith between the parties.
8. Liability
8.1 Where legislation implies any term, condition or warranty in the Contract, which cannot be excluded, restricted or modified; such term condition or warranty shall be deemed to be included in the Contract provided that Web Construct SA’s liability for breach of such term condition or warranty is, at the option of Web Construct SA, restricted to:
8.1.1 the supply of part or all of the Services again; or
8.1.2 the reasonable cost of supplying part or all of the Services again.
8.2 Without limiting the above provisions and subject to mandatory operation of law; under no circumstances will Web Construct SA’s liability under the Contract exceed the Fee or $6,000 whichever is the lesser amount.
8.3 Except where required by mandatory operation of law, Web Construct SA shall not be liable to the Client for any personal injury, indirect, special or consequential loss or damage (including without limitation loss of profits, loss of opportunity or business interruption) suffered by the Client or any other person, howsoever arising.
8.4 Web Construct SA shall not be liable to any person other than the Client in relation to the performance of the Services and the Client shall indemnify and keep indemnified Web Construct SA in respect of any loss or damage suffered by any third party in relation to the performance of the Services, in accordance with these terms.
8.5 Web Construct SA shall have no liability to the Client in respect of any claim by the Client or any other person arising out of or in relation to the Services unless the Client (or other person) notifies Web Construct SA, of both their intention and relevant circumstances to claim, within 12 months of the completion of the Services, irrespective of whether the claim arose within that time or not.
8.6 Clause 8.5 above, may be pleaded as an absolute bar to any legal proceedings against Web Construct SA in relation to the Services, unless such legal proceedings are issued and Court documents served upon Web Construct SA within such period.
9. Intellectual Property
9.1 Web Construct SA has copyright in all documents supplied to the Client in performing the Services and the Client shall not use or deal with such documents, other than for the purpose that the Services are provided. If Web Construct SA terminates the Contract by reason of breach of Contract by the Client, the Client shall immediately return all documents to Web Construct SA and shall cease to have any rights to use or otherwise deal with the documents.
9.2 Unless otherwise agreed in writing by Web Construct SA, all right title and interest in all inventions and/or discoveries made by Web Construct SA in performing the Services shall be owned by Web Construct SA and the Client shall have a non-exclusive free and continuous licence from Web Construct SA to use the same, for the purpose that the Services are provided. If Web Construct SA terminates the Contract by reason of breach of the Contract by the Client, such licence shall automatically cease.
10. Confidentiality
10.1 The parties agree that all information obtained from each other in relation to the Services, will be treated as confidential and shall not be disclosed to any third party (unless required by law) without prior written consent of the other party.
11. Events Beyond the Control of Web Construct SA
11.1 If Web Construct SA’s performance of the Services is delayed due to an act, omission or event beyond their reasonable control, Web Construct SA will be entitled to a reasonable extension of time for the performance of the Services.
11.2 If Web Construct SA is unable to complete performance of the Services due to an act, omission or event beyond their reasonable control, Web Construct SA may terminate the Contract.
12. Termination
12.1 Web Construct SA may by written notice immediately terminate the Contract if:
12.1.1 the Client is in breach of any terms of the Contract;
12.1.2 Web Construct SA has served the Client with a written notice specifying the breach and requiring its remedy; and
12.1.3 the breach is not remedied within fourteen (14) days of the said notice.
12.2 Without limiting the foregoing, if the Contract is lawfully determined or terminated for any reason then the Contract shall be deemed to be void from the beginning.
13. Dispute Resolution
13.1 Any dispute or difference whatsoever arising out of or in connection with the Contract shall be submitted to mediation in accordance with, and subject to, acceptable alternative dispute resolution rules and practices.
13.2 Dispute Resolution procedure:
– Any complaint, dispute or difference (“the original complaint”) must be formally brought to Web Construct SA’s notice by letter, fax or email;
– By the client; and,
– The client will then receive a resolution from Web Construct SA within 10 working days from the date on which Web Construct SA formally acknowledged receipt of the original complaint;
– Once a resolution has been submitted by Web Construct SA, the original complaint will be deemed as resolved and finalised;
– A further complaint, dispute or difference can only be raised for a second time with the consent of Web Construct SA; or,
– If the dispute or difference is in relation to a service or product supplied by Web Construct SA after the date of the original complaint;
13.2 Any dispute or difference in which the quantum is less than $6,000 arbitration shall take place using the submission of documents alone unless both parties agree otherwise.
14. Severability/Renegotiation
14.1 If any provision of this contract or its application to any party, person, corporation, association or circumstances is or becomes invalid, void, voidable or otherwise unenforceable for any reason whatsoever then:
14.1.1 that provision is severed form this contract or its application must be read down so as not to apply to that party, person, corporation, association or circumstance;
14.1.2 the remainder of this contract or the application of that provision to any other party, person, corporation, association, or circumstance shall not be affected; and
14.1.3 to the extent permissible by law, the parties must act in good faith to reach agreement as to a replacement valid and enforceable provision (and any necessary consequential amendments to the contract) which so far as possible achieves the same purpose, object or effect as the invalid, void, voidable or otherwise unenforceable provision was intended to achieve PROVIDED THAT in so doing the parties must preserve the basic purpose and intent of this contract.
15. Miscellaneous
15.1 Quotations are valid for acceptance within 30 days from the date they bear and will lapse if not accepted within such period, unless otherwise agreed by Web Construct SA in writing.
15.3 If Web Construct SA started the Services before all parties agreed to the terms of the Contract, then the Contract shall apply retrospectively from when the Services started.
15.4 The Contract is made in and shall be subject to the laws of the State of South Australia.
15.5 The parties to the Contract irrevocably and unconditionally submit exclusively for all purposes of, in relation to or in any way in connection with or arising out of the Contract to the jurisdiction of the Courts of South Australia.
15.6 Any and all actions that may be brought by the parties to the Contract in relation to or in any way in connection with or arising out of the Contract shall be brought in Courts located in the State of South Australia.