These terms and conditions apply to all services and goods provided by KØBEN digital to or at the request of the client. All work is or has been carried out by KØBEN digital on the understanding that the client has agreed to KØBEN digital’s terms and conditions as set out herein (and otherwise as modified in writing from time to time by KØBEN digital, notification of which is provided to the client).
At the time of proposal, KØBEN digital will provide the customer with a written estimate or quotation of project fees for the project description set out by KØBEN digital in its proposal. Quotations are based on current costs of production and are valid for thirty (30) days from the date thereon unless otherwise agreed by KØBEN digital in writing, and are based on the brief, specifications and copy supplied by the client at the time of quote. The client’s signed acceptance of KØBEN digital’s current estimate or quotation, will indicate acceptance of these terms and conditions, and all of KØBEN digital’s acceptance deposit (if applicable) as specified in its estimate or quotation will become immediately due and payable by the client.
Work on the project will not commence until KØBEN digital has received this amount. In accepting KØBEN digital’s estimate or quotation, the client agrees that the project description and work required to meet the client’s objectives as specified therein is accurate and complete and acknowledges it is based on KØBEN digital’s best understanding of the client’s requirements ascertained from KØBEN digital’s discussions with the client and/or briefing notes supplied by the client.
Once accepted by the client, KØBEN digital’s written estimate or quotation shall be deemed to interpret the client’s written or verbal instructions correctly. Where verbal instructions only are received from the client, KØBEN digital shall not be liable for errors or omissions, which are due to the failure of the client to make known expressly or by implication the result that the client desires to achieve.
Project Design and Development Charges
Project fees including charges for KØBEN digital’s design and development services in connection with the project description, will be set out in the written estimate or quotation provided to and accepted by the client. Where not otherwise specified in such written estimate, all project fees are exclusive of GST. KØBEN digital has the right to progressively invoice these project fees in the manner (both as to amount and timing) it determines appropriate, on the basis that KØBEN digital’s payment terms are strictly seven (7) days from date of invoice.
The suspension by the client of any work, for any reason, for a period exceeding thirty (30) days shall entitle KØBEN digital to payment by the client for work carried out, materials and components ordered for that work and other additional costs, including storage and hosting (including cloud).
Charges for other Services
All additional work not specifically covered by the written estimate or quotation including extra work or cost caused by variations to or increase in scope of original brief, specifications or by the client’s copy being poorly prepared, responding to any change requests (author’s amendments) beyond the scope of work, or re-creation of assets which have not been supplied in a useable format will be charged by KØBEN digital as “extras”.
Written estimates or quotations will include a rate for “extras”. KØBEN digital will not undertake any “extra” work without first obtaining the client’s written consent – except in respect of “extra” work which is of an urgent nature which if not completed immediately would fundamentally impact the functionality or security of the client’s website (and then KØBEN digital will advise the client of such urgent “extra” work as soon as is reasonably possible). KØBEN digital will use its best endeavours at the time of providing any written quote or estimate to the client to advise the client of any potential “extra” work that may be required and which is not budgeted for in the written quote or estimate.
Charges for any extras and other additional services required by the client over and above the estimated scope incorporated in the project description for the applicable written estimate, will become fully payable strictly seven (7) days from date of invoice as and when invoiced by KØBEN digital.
Payment must be made in full by electronic funds transfer, credit card or PayPal unless agreed prior.
An account shall be considered default if it remains unpaid for seven (7) days from the date of invoice, except where, in good faith, the client has disputed the underlying invoice. For any default account KØBEN digital shall be considered entitled to hold materials from delivery until all outstanding amounts due have been fully paid. Undelivered materials due to non-payment does not relieve the client of its obligation to pay the due amount. Customers whose accounts become default agree to pay KØBEN digital on demand.
An accounting administration fee equal to 3% per month or part thereof of the overdue amount calculated for the period such amount remains overdue, together with KØBEN digital’s legal expenses (on a full indemnity basis) and third party collection agency fees in the enforcement of these terms and conditions.
Where, in good faith, the client disputes an invoice, the parties will invoke the dispute resolution clause under these terms to assist them to resolve that dispute. Neither party will take any further action in relation to an unpaid disputed invoice until such time as the dispute resolution process is complete. Notwithstanding the foregoing, the client may only withhold payment in relation to the portion of the invoice that is in dispute – any other undisputed amounts that are part of the same invoice shall be paid as and when due.
Copyrights and Trademarks
Copyright ownership is retained by KØBEN digital on all work carried out by KØBEN digital for the client including words, pictures, ideas, visuals, illustrations, software source code and compiled files (“KØBEN digital original works”) until full and final payment has been made.
The client acknowledges that KØBEN digital’s work may incorporate original work either commissioned or authorized use of which is obtained by KØBEN digital from a third party (“KØBEN digital sourced works”) including copywriters, photographers, artists, illustrators, digital animators, computer or website programmers/ designers, with copyright ownership of any KØBEN digital sourced work belonging with the relevant creator of such work (except where copyright has been transferred to KØBEN digital in which case such work is deemed to be a KØBEN digital original work).
Subject to and conditional upon full payment of all monies owed by the client to KØBEN digital on all accounts, the client is licensed to use copyright in the KØBEN digital original works strictly and solely for the client’s specific usage and application detailed in the project description of KØBEN digital’s written estimate provided to the client at the time of proposal.
The following items, supplied by the client, constitute “client materials”:
- All digital assets, including source code and software licenses;
- All graphic elements used in the client’s website;
- All layered documents used to develop the graphic elements;
- All content contained on the website;
- Anything which belonged to the client prior to the Agreement including without limitation all other forms of, text, images and other data that were provided by the client to KØBEN digital for inclusion in the client’s design website or other medium.
The client declares that it holds the appropriate copyright and/or trademark permissions for the client materials.
The ownership of the client materials will remain with the client, or rightful copyright or trademark owner. If the client provides KØBEN digital with client materials including any goods, copy, illustrations, animation, photographs, film, data or other information to be used in any form, the client hereby warrants that these client materials do not infringe the rights of third parties and indemnifies KØBEN digital against any action taken against KØBEN digital by any such third party.
Without limitation, the client agrees not to infringe the copyright, trademark, privacy or personal or proprietary rights of third parties, nor supply libellous, abusive or obscene material nor disparage the products or services of any third party. By supplying images, text, or any other data to KØBEN digital, the client irrevocably grants KØBEN digital permission to use this material freely in the pursuit of the design.
The client agrees to fully indemnify and hold KØBEN digital free from harm in any and all claims resulting from the client in not having obtained all the required copyright, and/or any other necessary permissions.
KØBEN digital may, with permission from the client, use, reproduce, display, and exhibit for self- promotion items or images of items produced by KØBEN digital for the client.
Any inventions developed by KØBEN digital that are not specifically created for the client for the purposes of the work being carried out in this quote, or being created at the request of the client as a part of this quote remain the intellectual property of KØBEN digital. Such inventions include, but are not limited to; Plugins developed by KØBEN digital and licensed under a commercial agreement.
Errors and Omissions
KØBEN digital will have no responsibility nor incur any liability for any errors, which may be printed or published, where such errors have not been submitted and notified by the client to KØBEN digital in writing. The final lay-out and content, including grammar, spelling and overall accuracy is the sole responsibility of the client. Unless specifically commissioned, paid for and detailed in KØBEN digital’s estimate or quotation KØBEN digital is not responsible for any proofreading of content.
Client’s alterations and additional proofs necessitated thereby shall be charged as an extra at the rate specified in a written estimate or quotation. When style, type or layout is left to KØBEN digital’s judgement, subsequent changes made by the customer shall be charged as an extra at the rate specified in a written estimate or quotation.
The customer agrees that changes required over and above the estimated work or required to be carried out after acceptance of the project specification will be liable to a separate charge as an “extra” in accordance with clause 3 above. The client also agrees that KØBEN digital holds no responsibility for any amendments made by any third party, before or after the work is completed.
Client Property and Material
Client’s property and all property and material supplied to KØBEN digital by or on behalf of the client will be held at the client’s sole risk, and KØBEN digital accepts no liability whatsoever for loss of, or damage to, such property or material unless otherwise specifically agreed by KØBEN digital in writing. In the case of property and materials left with KØBEN digital without specific instructions, KØBEN digital shall be free to dispose of them at the end of twelve (12) months after receiving them and to accept and retain the proceeds, if any, to cover their own costs in holding and handling them.
Where assets, materials or equipment are supplied or specified by the client KØBEN digital accepts no responsibility for imperfect work caused by defects in or unsuitability or such materials or equipment. An extra charge may be made by KØBEN digital for handling or storing property (including cloud based resources) or materials supplied by, or on behalf of, the client.
Ownership and Risk
All KØBEN digital’s creation files including electronic forms of code and artwork shall be deemed ‘Means of Manufacture’ and shall remain at all times the sole property of KØBEN digital. Ownership of any goods delivered by KØBEN digital to the client will remain with KØBEN digital and will not be transferred to the client until such time when the client pays all monies owing to KØBEN digital by the client, on all accounts (noting that copyright in KØBEN digital original works will always remain the sole property of KØBEN digital).
Where KØBEN digital has not been paid in full in the manner specified by KØBEN digital and KØBEN digital delivers the goods to the client then the client agrees that it holds the goods as fiduciary Bailee for KØBEN digital, is required to store the goods in a manner that clearly identifies them as the property of KØBEN digital and will hold all money received relating to the sale of the goods in a separate account on trust for KØBEN digital and will pay such moneys immediately on request to KØBEN digital. The risk to the goods immediately passes to the client on delivery to the client at the address nominated by the client.
KØBEN digital will not be liable for any claim, loss or expense whatsoever or howsoever arising which is made after the expiration of thirty (30) days from the date of delivery. KØBEN digital will not, to the extent permitted by law, be subject to any liability, which exceeds the replacement value of the subject goods or services. KØBEN digital will not be liable for any contingent, consequential or punitive damages arising in any way whatsoever. The client acknowledges this express limitation of liability and agrees to limit any claim accordingly.
KØBEN digital will not be liable for any claim, loss or expense sustained or incurred by the client or any other person arising in any way as a result of the unavailability of goods, any delay in delivery of the goods or services or any failure to deliver goods or services. The client acknowledges that it has not relied upon or been induced by any advice, recommendation, information or representation provided by KØBEN digital as to the quality or performance of the goods and services or their suitability for a particular purpose or otherwise in relation to the goods and services.
KØBEN digital makes no representations to the client concerning the content or functionality of the client’s design, software, website and/or other design and development outcomes from KØBEN digital providing its services or goods in connection with the project description. The client releases KØBEN digital from any liability and acknowledges that it is the client’s own responsibility to ensure that these applicable outcomes meet the client’s requirements. The client is solely responsible for dealing with persons who access the client’s designs, publications, data or webpage and warrants that it will not refer complaints or inquiries in relation to such data to KØBEN digital.
These terms and conditions are to be read subject to mandatory provisions of legislation of the Commonwealth of Australia including the Australian Consumer Law or of one or more of the States or Territories, which afford statutory rights to consumers. The invalidity of any clause, or part of a clause, shall not affect any other clause, or other part of the clause.
Confidentiality and Privacy
Each party (Receiving Party) will treat as confidential and properly safeguard any and all information, documents, papers, programs and ideas relating to the other party (Disclosing Party), its operations, finances and products, disclosed to the Receiving Party and designated by the Disclosing Party as confidential or which should be reasonably understood to be confidential (Confidential Information). Confidential Information shall not include information that (a) is or falls into the public domain; (b) is disclosed to the Receiving Party by a third party which is not under an obligation of confidentiality to the Disclosing Party; (c) was already known to the Receiving Party; and/or (d) is independently developed by the Receiving Party without reference to Confidential Information. In the event the Receiving Party is required by a subpoena or other legal process to disclose the Disclosing Party’s Confidential Information, the Receiving Party shall: (i) if legally permitted, inform the Disclosing Party of such requirement; and (ii) only provide such Confidential Information of the Disclosing Party that is legally required.
Term and Termination
The Agreement will take effect on the Commencement Date and, unless terminated earlier in accordance with clause 12.2, will remain in effect for the duration of the term specified in the Statement of Work (Term).
Termination for Cause
Either party (First Party) may terminate the Agreement at any time and with immediate effect by written notice to the other party (Second Party) if the Second Party:
- has committed a material breach of the Agreement which is not reasonably capable of being remedied by the Second Party within 20 Business Days, or which has not been remedied by the Second Party within 20 Business Days of the Second Party's receipt of an earlier written notice given by the First Party, requiring that the Second Party remedy that breach;
- has gone into liquidation or a voluntary administrator, receiver or statutory manager has been appointed in respect of the Second Party or any material part of its assets, or the Second Party is subject to any analogous event under the laws of any relevant jurisdiction; or
- makes any assignment to, or enters into any arrangement for the benefit of, its creditors generally (other than for the purposes of a solvent restructuring).
Consequences of Termination
On termination of the Agreement for any reason:
- the termination will be without prejudice to either party's rights and remedies in respect of any breach of the Agreement by the other party, where the breach occurred before the termination of the Agreement;
- KØBEN digital may invoice the Customer for all Service Fees and Disbursements for the period up to and including the date of termination, and all outstanding invoices will remain payable by the Customer in accordance with clause 2, 3 ,4 and 5;
- the provisions of clauses 6, 11, 12.2, 15, together with those other provisions of the Agreement which are incidental to, and required in order to give effect to those clauses, will remain in full force and effect;
- each party must return, destroy or otherwise deal with the other party's Confidential Information and Intellectual Property in accordance with the other party's reasonable directions;
- subject to full payment of all outstanding amounts, KØBEN digital will in good faith and promptly after being requested to do so, provide all reasonable assistance to the client to transition its digital assets and website to an alternative service provider.
A party may, at any time while there is a genuine dispute relating in any way to the Agreement (Dispute), give written notice (Dispute Notice) to the other party specifying the subject matter of the Dispute and requiring that the parties meet in an agreed location within 10 Business Days after delivery of the Dispute Notice, to attempt to resolve the Dispute (Dispute Resolution Meeting).
If the parties fail to resolve the Dispute at the Dispute Resolution Meeting, or if a party fails or refuses to attend the Dispute Resolution Meeting within the 10 Business Day period referred to in clause 13.1, or at the time and venue agreed in writing between the parties, either party may, by written notice to the other party, submit the Dispute to mediation by a single mediator agreed upon in writing by them or (if they are unable to agree on a mediator within 5 Business Days after the submission to mediation) by the President for the time being of the Queensland Law Society.
In the event of any submission to Mediation:
- the Mediator will not be acting as an expert or as an arbitrator;
- the Mediator will determine the procedure and timetable for the Mediation;
- the Mediation will take place in an agreed location; and
- the parties will share equally the cost of the Mediation.
If the parties fail to resolve the Dispute at the Mediation, or if a party fails or refuses to attend the Mediation at the time and venue determined by the Mediator, either party may, by written notice to the other party, submit the Dispute to arbitration (Arbitration).
The Arbitration will be conducted in Gold Coast, Queensland, Australia under the laws of the State of Queensland and:
- the arbitrator will be the person agreed upon in writing by the parties or, if the parties are unable to agree on an arbitrator within 5 Business Days of the submission to Arbitration under this clause, nominated by the President for the time being of the Queensland Law Society; and
- the decision of the arbitrator will be final and binding on the parties.
It is KØBEN digital’s policy to archive and store on hard drive and in cloud storage, electronic forms of materials manufactured, though KØBEN digital is under no obligation to store such work. KØBEN digital shall not be held liable for loss, corruption or neglect of archives. The client shall have no right or title to data stored by KØBEN digital on disks or any other electronic form of storage.
Should KØBEN digital in its absolute discretion agree to relinquish such files, they will not be transferred until all work has been paid by the client in full. KØBEN digital reserves the right to charge for retrieval time and electronic media should the client request such materials on disk.
No agent, employee or representative of KØBEN digital will have any authority whatsoever to bind KØBEN digital to any affirmation, representation, warranty or condition concerning the services or goods supplied by KØBEN digital under these terms and conditions unless such affirmation, representation, warranty or condition is specifically included in writing within these terms and conditions.
The client agrees that all contracts made with KØBEN digital will be deemed to be made in the State of Queensland and the client agrees to submit to the jurisdiction of appropriate court in that State. The provisions of these terms and conditions will be separate and severable from each other to the extent that if any provision or provisions are considered to be inoperative then the remaining provision or provisions will be binding on and enforceable by the parties.
Time shall be of the essence as far as it relates to the client’s obligation under these terms and conditions. KØBEN digital may at any time assign its rights and interests under any contract to provide services and goods to the client pursuant to these terms and conditions.
The client shall not assign any of its rights or obligations under any such contract without KØBEN digital’s prior consent in writing, which consent may be refused or given subject to such terms and conditions as KØBEN digital may determine at its absolute discretion.
In these terms and conditions and the associated document, unless the context otherwise requires:
- “client” means the client to whom KØBEN digital’s written estimate or quotation is addressed, its personal representatives, successors and permitted assigns and includes any servant, agent, partner, contractor or employee of that person;
- “KØBEN digital” means KOBEN digital Pty Ltd;
- “goods” means all goods the subject matter of any accepted written estimate by KØBEN digital to the client; services” means all services the subject matter of any accepted written estimate by KØBEN digital to the client;
- a reference to “including” means “including without limitation”; any agreement, warranty, representation or obligation which binds or benefits 2 or more persons, binds or benefits those persons jointly and severally;
- and “$” or “dollars” is a reference to the lawful currency of Australia.