Terms and Conditions

This following TERMS & CONDITIONS outline the agreement between all web development clients of Flip It Media, hereafter referred to as "Client", and Flip It Media (ABN 78529354162), hereafter referred to as "Developer".  This agreement is with respect to the design, development and implementation of Client's website, hereinafter referred to as the "Work";  

 

WHEREAS, Client desires to retain Developer to develop the Work for Client as described more fully herein;

 

WHEREAS, Developer desires to undertake the development of the Work and agrees to do so under the terms and conditions set forth in this agreement;

 

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter set forth and other valuable considerations, the parties hereto agree as follows:

1. SERVICES AND DELIVERABLES:

Developer has prepared a Job Proposal for the Work, which includes the following:-

(a)   the specifications for the Work which comply with the requirements of Client's Request For Proposal;

(b)   a listing of all items to be delivered to Client (the "Deliverables");

(c)   a schedule containing a delivery date for each Deliverable; and

(d)  a schedule setting forth the amount and timing of Developer's compensation, including provisions for payment of Developer's reasonable travel and other out-of-pocket expenses.

 

Developer shall deliver the Job Proposal to Client with this Agreement.  Client shall have seven (7) days to review and comment upon the Job Proposal.  Upon approval of the Job Proposal by Client, it will be attached as "Appendix A" and will become a part of this Agreement.  Developer shall commence development of the Work in conformity of the Job Proposal within fourteen (14) days of the approved Job Proposal.

 

Unless otherwise specified in the Job Proposal, Client is required to respond to any content requests and/or approval for designs or functionality within five (5) business days of such requests being delivered by Developer to Client at the email address specified in this contract.  Developer reserves the right to make decisions on behalf of Client should Client fail to respond within this timeframe.  Any changes or alterations required by the Client after this timeframe may incur additional fees.

2. PAYMENT SCHEDULE:

The total contract price for the Work shall be as set forth in the Job Proposal and shall be payable in installations according to the payment schedule set forth therein.  Each instalment shall be payable upon completion of each project phase by Developer and acceptance by Client.

3. CHANGES IN PROJECT SCOPE:

If at any time following acceptance of Job Proposal, Client should desire to change the specifications or other elements of the Job Proposal, Client shall submit to Developer a written proposal specifying such changes.  Developer shall evaluate each such proposal and shall submit to Client a written response within five (5) working days following receipt thereof.  Developer's response shall include a statement of availability of personnel and resources, as well as the effect the proposed changes will have on the price, delivery dates or warranty provisions of this Agreement.

 

Any changes to the Job Proposal shall be evidences by a "Job Proposal Amendment".  The Job Proposal shall be signed by authorised representatives of Developer and Client, and shall be deemed a part of this Agreement.  If Developer does not approve the Job Proposal Amendment, Developer shall not be obligated to perform any additional services hereunder.

4. DELAYS:

Developer recognises and agrees that failure to deliver the Work according to the Job Proposal's delivery schedule will result in expense and damage to Client.  Developer shall inform Client immediately of any anticipated delays in the delivery schedule and of the actions being taken to assure completion of the Work within such schedule.  If any delivery date is missed, Client may, at its sole option, declare a default under this Agreement and may pursue all remedies set for in Section 15; provide, however, that Client shall provide Developer with thirty (30) days to cure the delay prior to declaring a default.  Client may not declare a default hereunder if such delay is caused by any action or failure to act of the Client, (for example, failure to submit required or requested information or materials to Developer).

 

Developer cannot be held in default of this Agreement in the case of delays on the part of Client, or delays resulting from hosting company or server problems.  In such case, Developer will provide Client with written notice that such a delay has occurred.  Work on the Work shall not resume until Client has resolved the reason for the delay and notice of its resolution has been provided to Developer.

5. ACCEPTANCE TESTING:

Upon completion of the Work and the delivery of all items required to be provided under the Job Proposal, Client shall have thirty (30) days from such completion to inspect, test and evaluate the Work to determine whether it satisfies the acceptance criteria set forth in the Job Proposal.

 

If the Work does not satisfy the acceptance criteria, Client shall give Developer written notice stating why the Work is unacceptable. Developer shall have ten (10) days from the receipt of such notice to correct the deficiencies. Client shall then have ten (10) days to inspect, test and revaluate the Work. If the Work still does not satisfy the acceptance criteria, Client shall have the option of either: (1) repeating the procedures set forth above, or (2) terminating this Agreement pursuant to Section 14.

 

If and when the acceptance tests establish that the Work complies with the acceptance criteria, Client shall notify Developer that it accepts the Work. The date of such notification shall be the date on which Client shall be obligated to make the final payment specified in the schedule set forth in the Job Proposal.

6. AUTHORITY:

Developer and Client each hereby represent and warrant that the execution, delivery and performance of this Agreement has been duly authorized and that the Agreement is a legal, valid and binding agreement of Developer and Client, enforceable in accordance with its terms. Developer and Client further represent that this Agreement does not breach or violate any agreement to which it is a party or to which it is bound.

7. RIGHTS TO WORK PRODUCT:

Developer hereby acknowledges that the Deliverables and any other documentation, materials or intellectual property hereunder (collectively, the "Work Product") are works which have been specially commissioned by Client and are "work made for hire" for Client and Client shall own all right, title, and interest therein. Client shall be considered the author of the Work Product for purposes of copyright and shall own all the rights in and to the copyright of the Work Product and, as between Client and Developer, only Client shall have the right to obtain a copyright registration on the same which Client may do in its name, its trade name or the name of its nominee(s). Accordingly, among other things, Client is the author and owner of the Work Product and shall have the sole and exclusive rights to do and authorize any and all of the Copyright Act with respect to the Work Product and any derivatives thereof, and to secure any and all renewals and extensions of such copyrights. To the extent Developer does not own such Work Product as a work made for hire, Developer hereby assigns, transfers, releases and conveys to Client all rights, title and interest to such Work Product, including but not limited to all other patent rights, copyrights, and trade secret rights.

8. RIGHTS TO DEVELOPMENT PRODUCT:

Client hereby acknowledges that all rights expressly granted hereunder are reserved to Developer, including but not limited to all rights in sketches, comps, other preliminary material, content management systems, coding or software created and delivered by Developer to Client hereunder (collectively, the "Development Product").  Copyright for Development Product is in Developer's name.  Upon completion of Work, the copyright will only be released to Client upon Developer's signing of the Release of Copyright once payment has been paid in full, and as set out in the Job Proposal.  Developer reserves the right to release copyright for designs or software, at their discretion, or as part of the Job Proposal.

9. TRAINING:

Developer shall provide no training in the use of the Work, unless specified in the Job Proposal. Limited support via phone or e-mail will be available to Client for fourteen (14) days following acceptance of the Work, as set forth in Section 5. "Limited support" shall include instructions to access, alter, and maintain the Work using software and/or technology purchased by Client. Developer is not responsible to for providing software and/or technology to Client outside of that specified in the Job Proposal.

10. REPRESENTATIONS AND WARRANTIES.

(a)   Warranty of Work Performance: Developer represents and warrants that, for thirty (30) days following acceptance of the Work by Client, the Work will be free from programming errors and defects in workmanship and materials, and will conform to the specifications in the Job Proposal. If programming errors or other defects are discovered during the warranty period, Developer shall promptly remedy them at Developer's expense.

(b)   Warranty of Title: Developer represents and warrants that Developer owns and has the complete right to license, convey title without any encumbrances to the Work and Deliverables covered by this Agreement. Developer further represents and warrants that Developer has obtained all required registrations, permissions and consents from all third parties necessary to deliver the Work, Background Technology and Deliverables. Developer shall not grant any rights or licenses to any intellectual property or technology that would conflict with his obligations or Developer's rights under this Agreement.

(c)   Warranty Against Disablement: Developer expressly represents and warrants that no portion of the Work contains or will contain any protection feature designed to prevent its use, unless specified in the Job Proposal. This includes, without limitation, any computer virus, worm, software lock, drop dead device, Trojan‑horse routine, trap door, time bomb or any other codes or instructions that may be used to access, modify, delete, damage or disable the Work or computer system.

(d)  Warranty of Compatibility: Developer represents and warrants that the Work shall be compatible with Client's hardware and software as set forth in the specifications in the Job Proposal.

(e)   Warranty Against Intellectual Property Infringement: Developer represents and warrants that the Work and Deliverables shall not infringe on the trademark, copyright, patent, trade secrets or any other rights of any third party. To the extent the Work or the Deliverables infringe upon the rights of any third party, Developer shall obtain a license or consent from such third party permitting the use of the Work and Deliverables.

11. INDEMNITY:

(a)   Indemnification Against Liability for Infringement: Developer shall indemnify Client and any of its officers, directors, employees or agents against all claims, liabilities, costs, damages, fees and expenses (including reasonable attorney fees) arising from any breach or alleged breach of warranty under this Agreement or any claim or suit alleging infringement by the Work, Background Technology or Deliverables of any patent, copyright, trade secret or trademark rights or any other rights of any third party. Client shall promptly notify Developer in writing of any third party claim or suit and Developer shall have sole control of the defence of any such action and all negotiations for its settlement or compromise. Client may participate at its own expense in the defence of any such action at its sole discretion.

(b)   Indemnity by Client: Client shall indemnify Developer and any of Developer's employees or agents against all claims, liabilities, costs, damages, fees and expenses (including reasonable attorney's fees) arising from any action based upon any content on the Work that is solely provided by Client.

12. CONFIDENTIALITY:

Client and Developer may disclose confidential information one to the other to facilitate work under this Agreement.  Such information shall be so identified in writing at the time of its transmittal, and shall be safeguarded and not disclosed to third parties by the receiving party.  Confidential information shall not include information that:

(a)   Is already know to the part to which it is disclosed;

(b)   Is or becomes part of the public domain without breach of this Agreement;

(c)   Is obtained from third parties, which have no obligations to keep confidential to the parties to this Agreement.

13. TERM OF AGREEMENT:

This Agreement commences on the date it is executed and shall continue until full performance by both parties, or until earlier terminated by one party under the terms of this Agreement.

14. TERMINATION OF AGREEMENT:

Client may terminate this Agreement at its sole election upon thirty (30) days prior written notice to Developer. Upon such termination, all amounts owed to Developer under this Agreement for completed work in accordance with the Job Proposal shall become due and payable. At such time, Developer shall deliver all completed work to Client.

 

If this Agreement is terminated by Client because of Developer's default of its obligations hereunder, Client may, after thirty (30) days written notice to Developer and a reasonable opportunity to cure:

(a)   require Developer to immediately deliver to Client all Work Product developed by Developer under this Agreement and pay Developer all amounts owed for the work performed under this Agreement and accepted by Client, whereupon Client shall have complete right, title and interest to Work Product, as defined in Section 7, and all permissions and licenses granted to Client by Developer under this Agreement shall continue, in perpetuity as royalty‑free and fully paid rights; or

(b)   pursue all legal and equitable remedies against Developer.

 

If Developer terminates this Agreement because of Client's default, after a thirty (30) day written notice to Client and an opportunity to cure, Developer may require:

(a)   Client to pay all amounts then due to Developer under this Agreement for any work which has been completed and accepted by Client, whereupon Client shall have complete right, title and interest in such work and all rights and licenses granted to Client by Developer under this Agreement shall survive as royalty free and fully paid‑up; and

(b)   pursue all legal and equitable remedies against Client.

15. ASSIGNMENT:

Developer reserves the right to assign, without notice to Client, other designers or developer subcontractors to the Work (or part there of) to ensure quality and on-time completion.

16. GENERAL PROVISIONS:

(a)   Complete Agreement: This Agreement together with all exhibits, appendices or other attachments, is the sole and entire Agreement between the parties relating to the subject matter hereof. This Agreement supersedes all prior understandings, agreements and documentation relating to such subject matter. In the event of a conflict between the provisions of the main body of this Agreement and any attached exhibits, appendices or other materials, this Agreement shall take precedence.

(b)   Modification to Agreement: Modifications and amendments to this Agreement shall be enforceable only if they are in writing and are signed by authorized representatives of both parties.

(c)   Waive: No term or provision of this Agreement shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the party claimed to have waived or consented.

(d)  No Agency: Nothing contained herein will be construed as creating any agency, partnership, joint venture or other form of joint enterprise between the parties.

(e)   Independent Contractor: The parties acknowledge that Developer shall perform his obligations hereunder as an independent contractor. The manner and method of performing such obligations will be under Developer's sole control and discretion. Developer's sole interest is in the result of such services. It is also expressly understood that Developer's employees and agents, if any, are not Client's employees or agents, and have no authority to bind Client by contract or otherwise. Client shall make no deduction from any payments due Developer hereunder for federal and state tax purposes. In the event that Client is found liable for Social Security, withholding, insurance, or other such taxes, Client shall have the right to immediately recover such amount from Developer.

(f)    Notice: All notices and other communications required or permitted under this Agreement shall be in writing and shall be deemed given when delivered personally, or by post, or by facsimile, or emailed to such other address as each party may designate in writing:

 

Developer:                   getflipped@flipitmedia.com.au

 

(g)   Reasonable Costs: In the event of any controversy concerning or related to this Agreement or the performance of this agreement, the prevailing party shall be entitled to recover its reasonable expenses (including reasonable attorneys' fees) incurred in resolving such controversy, in addition to any other relief that may be available.

(h)  Applicable Law: This Agreement will be governed by the laws of the State of Queensland, Australia. Any litigation or arbitration regarding this Agreement shall be brought exclusively in Queensland, Australia.

(i)    Severability: If any provision of this Agreement is held invalid, void or unenforceable under any applicable statute or rule of law, it shall to that extent be deemed omitted, and the balance of this Agreement shall be enforceable in accordance with its terms.

(j)    Time of the Essence. Time is of the essence in the performance of the covenants of the parties hereunder, including without limitation delivery covenants to be performed by the Developer.

(k)   Bankruptcy. If either party hereto (a) shall be adjudicated a bankrupt or an order appointing a receiver of it or of the major part of its property shall be made, or an order shall be made approving a petition or answer seeking its reorganization under any applicable bankruptcy law, and in any such case shall not be stayed within 10 days, or (b) shall institute proceedings for a voluntary bankruptcy or apply for or consent to the appointment of a receiver of itself or its property, or shall make an assignment for the benefit of its creditors, or shall admit in writing its inability to pay its debts generally as they become due, for the purpose of seeking a reorganization under the federal bankruptcy laws or otherwise, then in any one or more of such events listed in (a) or (b) above, the other party may terminate this agreement by giving at least 10 days prior notice.