Terms and Conditions
Website Design and Development
1.1 The Client is engaging Content Maximiser Pty Ltd for the specific purpose of developing and/or improving a Web site to be installed on the Content Maximiser Pty Ltd’s web space located on a web server.
1.2 All fees related to establishing a hosting service is payable to Content Maximiser Pty Ltd and will be invoiced directly to the Client by Content Maximiser Pty Ltd. The Client understands that use of the hosting services is subject to the Terms and Conditions as provided.
2. Web Design and Development
2.2 It is anticipated that the Content Maximiser Pty Ltd will create, capture or receive from the Client all the graphic elements necessary to complete the Client’s website.
2.3 The Client agrees that website design will not commence until the required payment is paid in full and all final text and images are provided in digital format. Content Maximiser Pty Ltd will provide an initial design concept based on the design brief provided by the Client.
3. Completion Date
3.1 Content Maximiser Pty Ltd and the Client must work together to complete the website in a timely manner for both parties to remain profitable.
3.2 Content Maximiser Pty Ltd agrees to work expeditiously to complete this project within a reasonable time frame, but shall have no responsibility for delays caused by the Client or the Client’s actions.
4.1 Cancellation of the project at the request of the Client must be made in writing to Content Maximiser Pty Ltd. In the event that work is postponed or cancelled at the request of the Client, Content Maximiser Pty Ltd reserves the right to retain the original 50% deposit. In the event this amount is not sufficient to cover Content Maximiser Pty Ltd for time and expenses already invested in the project, additional payment will be due. If additional payment is due, this will be billed to the Client within fourteen (14) days of notification in writing to stop work. Final payment will be expected under the same terms as listed in the section titled ‘Payment Terms’ below.
5. Cross Browser Compatibility
5.1 This agreement contemplates the creation of a website viewable by website browsers most commonly used at the time development of the project commences. Compatibility is defined as all critical elements of each page being viewable in each of the aforementioned browsers.
5.2 The Client is aware that some advanced techniques on the internet, however, may require a more recent browser version and brand or plug-in. The Client is also aware that as new browser versions are developed they may not be backward compatible. Time spent to redesign a site for compatibility due to the introduction of new browser versions will be separately negotiated and be in addition to the base price of this agreement set out in the Website Proposal.
5.3 Note however, that if additional pages are necessary to accommodate specific browsers, plug-in technology, screen resolutions, or platforms, additional charges may apply.
6.1 A ‘final’ copy of text will be provided by the Client in a digital format. Pages exceeding that of a normal A4 sized page of text in a 10 to 12 point font may be subject to additional fees for increased formatting time. Text required to be displayed within tables may also incur further charges for increased formatting time, e.g. comparison charts or price lists. Time required to make substantive changes to client-submitted text after a web page has been constructed will be charged at an hourly rate.
7.1 If professional photographic capture is necessary, the Client is solely responsible for organising the capture of any photographs required and the resulting fees incurred.
8. Copyrights and Trademarks
8.1 The Client text, graphics represents to Content Maximiser Pty Ltd and unconditionally guarantees that any elements of, photos, designs, trademarks, or other artwork furnished to Content Maximiser Pty Ltd for inclusion in the Client’s website are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Content Maximiser Pty Ltd and its subcontractors from any claim or suit arising from the use of such elements furnished by the Client.
9. Limitation of Liability
9.1 The Client agrees that any material submitted for publication will not contain anything leading to an abusive or unethical use of the Web Hosting Service, the Host Server or Content Maximiser Pty Ltd. Abusive and unethical materials and uses include, but are not limited to, pornography, obscenity, nudity, violations of privacy, computer viruses, harassment, any illegal activity, spamming, advocacy of an illegal activity, and any infringement of privacy.
9.1 The Client hereby agrees to indemnify and hold harmless Content Maximiser Pty Ltd from any claim resulting from the Client’s publication of material or use of those materials.
9.2 It is also understood that Content Maximiser Pty Ltd will not publish information over the Internet which may be used by another party to harm another. Content Maximiser Pty Ltd will also not develop any unlawful website for the Client. Content Maximiser Pty Ltd reserves the right to determine what is and is not unlawful.
10. Additional Expenses
10.1 The Client agrees to indemnify and reimburse Content Maximiser Pty Ltd for any critical Client requested costs and expenses necessary for the completion of the project. Examples would be:
Purchase of specific fonts at the Client’s request;
Purchase of specific photography at the Client’s request;
Purchase of specific software at the Client’s request;
11. Client Changes
11.1 Content Maximiser Pty Ltd prides itself in providing excellent customer service. This is the spirit of our agreement and the spirit of Content Maximiser Pty Ltd’s business. To that end, we encourage input from the Client during the design process.
11.2 Content Maximiser Pty Ltd understands, however, that Clients may request significant design changes to pages that have already been built to the Client’s specification. To that end, please note that our agreement does not include a provision for ‘significant page modification’ or creation of additional pages in excess of that outlined in the Website Proposal. If significant page modification is requested after a page has been built to the Client’s specification, it will incur an additional charge.
11.3 Some examples of significant page modification at the request of the Client include:
Developing a new layout structure to accommodate a substantial redesign at the Client’s request;
Replacing more than 75% of the text to any given page at the Client’s request;
Creating a new navigation structure or changing the link graphics at the Client’s request;
Significantly reconfiguring any database structures and/or background services;
11.4 Moderate changes, however, will always be covered during the development of the site and also covered by our three (3) month maintenance agreement outlined in the section titled ‘Maintenance’ below.
11.5 We strive to accommodate the needs of each Client and we maintain a liberal redesign policy. We cannot, however, provide major redevelopment services in excess of the tasks outlined in the Website Proposal as contemplated by this agreement.
12.1 Content Maximiser Pty Ltd will provide e-mail and telephone assistance to the Client’s designated representative(s) regarding management of the Client’s website. Sometimes, however, training for one or more individual face to face is desired. This agreement allows for one hour of Zoom training. Further training requirements will be charged on an hourly basis.
13.1 Minor website maintenance corresponds up to an average of one half hour for one or more tasks to be completed at one time. This includes updating links and making minor changes to a sentence or paragraph.
13.2 It does not include replacing nearly all the text from a page with new text, major page reconstruction, new pages, navigation structure changes, or major changes to the database and/or background services of the website. Such changes in excess of the tasks outlined in the Website Proposal will be charged on a half hourly basis.
13.3 Complete redesign and/or restructuring of the website, requires a separate ‘Web Design and Development Agreement’ to be signed by the Client and Content Maximiser Pty Ltd.
14. Third Party or Client Page Modification
14.1 Some Clients will desire to independently edit or update their web pages after completion of the site. This is always an option for Clients of Content Maximiser Pty Ltd. However, if the Client or an agent of the Client other than Content Maximiser Pty Ltd attempts to update the website and damages the design or impairs the ability for the web pages to display or function properly, time to repair the web pages will be assessed at an hourly rate.
15.1 The Client agrees that it shall defend, indemnify, save and hold Content Maximiser Pty Ltd harmless from any and all demands, liabilities, losses, costs and claims, including reasonable legal fees associated with Content Maximiser Pty Ltd development of the Client’s website. This includes liabilities asserted against Content Maximiser Pty Ltd, its agents, its clients, servants, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by the Client, its agents, employee or assigns.
15.2 The Client also agrees to defend, indemnify and hold harmless Content Maximiser Pty Ltd against liabilities arising out of any injury to person or property caused by any products or services sold or otherwise distributed over the Client’s website. This includes infringing on the proprietary rights of a third party, copyright infringement, and delivering any defective product or misinformation which is detrimental to another person, organisation, or business.
16.1 Content Maximiser Pty Ltd will ensure that its employees agree that, except as directed by the Client, will not at any time during or after the term of this Agreement disclose any Confidential Information to any person whatsoever. Likewise, the Client agrees that it will not convey any Confidential Information obtained about Content Maximiser Pty Ltd to another party.
17. Ownership to Website Components
17.1 Upon final payment of the project, the Client is assigned rights to use as a website, the design, graphics, text, and source code contained in the finished assembled website.
17.2 Rights to fonts, photos, graphics, and text purchased on behalf of the Client for completion of this project and at additional cost to this agreement are specifically transferred to the client.
17.4 Content Maximiser Pty Ltd retain the right to display graphics and other web design elements as examples of their work in their respective portfolios.
18. Design Credit
18.1 The Client agrees that Content Maximiser Pty Ltd may place their logo within the Client’s website establishing design and development credit. The Client also agrees that the website created for the Client may be included in Content Maximiser Pty Ltd portfolio.
18.2 If there is any dispute arising under this agreement, the parties undertake to use all reasonable efforts in good faith to attempt to resolve the dispute which arises between them. A party may give the other party a notice of dispute in connection with this agreement. Both the parties must first attempt to resolve the dispute amicably on mutually reasonable terms before commencing any mediation.
18.3 Any disputes in excess of $7,500 (or the maximum limit for Disputes Tribunal) arising out of this Agreement shall be submitted to binding arbitration in accordance with the Commercial Arbitration Act 1990.
18.4 The Arbitrator’s award shall be final, and judgment may be entered in any court having jurisdiction thereof. The Client shall pay all arbitration and court costs, reasonable legal fees and legal interest on any award or judgment in favour of the Content Maximiser Pty Ltd or as directed by the award.
19. Governing Law
19.1 This agreement shall be governed and construed in accordance with the laws of New South Wales. Any legal action arising out of its use shall be brought and enforced under the laws of New South Wales. By signing this agreement, both parties agree to submit to the jurisdiction of the courts of New South Wales and any legal action pursued shall be within the exclusive jurisdiction of the courts of New South Wales.
20. Authorised Representative
20.1 Each Party warrants that their representative whose signature appears below is the duly authorised representative of the Client and the authorised representative of the Client certifies that he or she is legally capable of entering into this agreement on behalf of the Client.
1. Definitions and Interpretation
“Agreement” means the agreement which is governed by these Terms and Conditions.
“Associated Documents” means any documents created by Content Maximiser Pty Ltd on the reading of which contains terms which relate to the relationship between Content Maximiser Pty Ltd and its Customer.
“Customer” means the person who engages the Services of Content Maximiser Pty Ltd pursuant to the Agreement and any other person deemed to be a Customer pursuant to these Terms and Conditions.
“Period” means the duration of the Agreement which is twelve months unless otherwise stated in the Customer proposal.
“PPC Services” means pay per click services and products such as Google AdWords, Facebook, Bing that Content Maximiser Pty Ltd may manage on behalf of the Customer the Terms of which are governed by the PPC Terms attached hereto (Attachment A).
“Content Maximiser Pty Ltd” means ContentMaximiser.com.au Pty Ltd which expression shall include the members, officers, employees, affiliates and permitted agents and subcontractors engaged from time to time by Content Maximiser Pty Ltd to provide the services.
“Services” means all services of the type and nature as described in these Terms and Conditions, Customer Proposal, Schedule to Customer Proposal and Associated Documents provided by Content Maximiser Pty Ltd to the Customer.
“Service Fee” means the specified rate, price or lump sum amount for the performance of each item of the Services as adjusted in accordance with the Agreement.
“Terms and Conditions” means the terms and conditions set out in this document.
“Website” means those of the Customer’s website or website which specifically are to be the subject of the Services (Attachment B).
(a) The singular includes the plural and vice versa
(b) References to a person includes a corporation, firm, company, partnership, joint venture, unincorporated body of persons or individual whether or not a separate legal entity.
2.1 The Customer is deemed to have accepted the Terms and Conditions by placing an order with Content Maximiser Pty Ltd or instructing Content Maximiser Pty Ltd to provide the Services after:
(a) Content Maximiser Pty Ltd’s Terms and Conditions received by the Customer; or
(b) The availability of Content Maximiser Pty Ltd’s Terms and Conditions on Content Maximiser Pty Ltd’s website are brought to the notice of the Customer in the Customer Proposal or otherwise.
3. Customer’s Responsibilities
3.1 The Customer will provide in a timely fashion all information, access to third parties as reasonably required and access to Website to enable Content Maximiser Pty Ltd to change and modify the Website to enable Content Maximiser Pty Ltd to provide the Services.
3.2 If the Customer is not the registered proprietor of the domain name of the Website, the Customer warrants that it is authorised to contract on behalf of the registered proprietor and both the Customer and the registered proprietor are jointly and severally liable for the obligations of the Customer under the Terms and Conditions.
3.3 The Customer will notify Content Maximiser Pty Ltd in writing within 14 days prior to any proposed change in the legal entity, structure, management, change, control of the Customer’s business or change of the registered proprietor of the domain name of the Website The Customer will remain liable under the Agreement unless released in writing by Content Maximiser Pty Ltd.
4. Performance Level
4.1 Content Maximiser Pty Ltd will provide its Services on information supplied to it about the Customer’s business. However the Customer acknowledges that Content Maximiser Pty Ltd cannot guarantee an improvement in rankings, traffic, sales, business activity, profit or any other form of improvement. Content Maximiser Pty Ltd cannot accept responsibility for any loss or damage, including consequential loss, arising from its Services.
4.2 Content Maximiser Pty Ltd will endeavour to ensure that any development/design site or application will function correctly on the server which it is initially installed on when viewed with the latest version of the web browsing software Microsoft Internet Explorer or Mozilla browsers or Chrome browsers. Content Maximiser Pty Ltd can offer no guarantees of the correct functioning with all browsers.
5.1 Content Maximiser Pty Ltd shall not be liable to the Customer for any direct, indirect, economic, special, punitive, incidental or consequential loss or damage (whether for loss of profits, loss of business, revenue, data, goodwill or otherwise) arising suffered by the Customer which arises out of or in connection with the provision of the Services or any liability of the Customer.
5.2 The entire financial liability of Content Maximiser Pty Ltd (including any liability for the acts or omissions of its members, officers, employees, affiliates and permitted agents and subcontractors ) to the Customer in connection with provision of Services in respect of any direct loss (or any other loss to the extent that such loss is not excluded by Clause 5.1 above or otherwise) whether such claim arises in contract, tort, misrepresentation or otherwise shall not exceed a sum equal to the fees paid for the Services.
5.3 Content Maximiser Pty Ltd accepts no duty of care or other liability in respect of its Services to any person other than the Customer.
5.4 Content Maximiser Pty Ltd reserves the right to refuse to handle in any way, material which may be deemed offensive, illegal or in any way controversial, and also to terminate any free hosting service should the necessity arise and Content Maximiser Pty Ltd reserves the right to refuse to use, incorporate or implement any material of a copyrighted or other legally protected nature unless adequate proof is given of permission to use such material.
6. Intellectual Property and Copyright
6.1 Intellectual property rights in all documentation, systems, design, materials, methodologies and processes created in course of providing Services to the Customer shall remain the property of Content Maximiser Pty Ltd.
6.2 Any scripts, cgi applications or software (unless specifically agreed) written by Content Maximiser Pty Ltd remain the intellectual property and copyright of Content Maximiser Pty Ltd and may only be commercially reproduced or resold with the permission of Content Maximiser Pty Ltd.
6.3 At the conclusion of Content Maximiser Pty Ltd services to the Customer, the Customer may request Content Maximiser Pty Ltd to hand-over customer data it has in its possession; however Content Maximiser Pty Ltd will not release access to the account and set-up which remains the intellectual property of Content Maximiser Pty Ltd.
7. Fees and Payment
7.1 Unless specifically agreed otherwise, upon acceptance of the Terms and Conditions the Customer is liable to pay the total amount in advance for Content Maximiser Pty Ltd’s Services.
7.2 In the event that the Customer fails to make payment of Content Maximiser Pty Ltd invoices, without prejudice to any other rights Content Maximiser Pty Ltd has, Content Maximiser Pty Ltd retains the right to charge interest at the rate of 2% per month accruing on a daily basis on any outstanding amount and the Customer indemnifies Content Maximiser Pty Ltd against all costs and expenses arising from such default including legal costs.
7.3 All Content Maximiser Pty Ltd charges will be deducted against the credit card or account the Customer designates in the executed Credit Card Authority or Direct Debit authority such deduction being made 7 days from issue of a tax invoice to the Customer. The Customer agrees that Content Maximiser Pty Ltd may charge the credit card or direct debit for any additional amounts (including taxes and late fees, as applicable) as may be accrued in connection with Content Maximiser Pty Ltd’s charges.
7.4 Goods & services tax (GST) at the prevailing rate will be added to and forms part of our fees.
8.1 To pause a service requires acknowledgement and approval by a senior manager, other than the account manager, at Content Maximiser Pty Ltd.
8.2 A pause in services by Content Maximiser Pty Ltd will be no longer than a 2 month period unless agreed otherwise.
8.3 All other Terms and Conditions of this agreement remain the same.
9.1 Subject to clause 9.2, both Content Maximiser Pty Ltd and the Customer may each terminate the Agreement at the expiration of the Period by giving written notice of its intention to do so at least 30 days before the end of the Period. If neither party gives notice of intention to terminate, the Agreement will continue from month to month until terminated by either party on one month’s notice. The Customer must pay Content Maximiser Pty Ltd the sum of all monies due and payable but unpaid which includes any balance of a lump sum amount.
9.2 Content Maximiser Pty Ltd may give the Customer written notice of variation of the Agreement (including the fees and charges of Content Maximiser Pty Ltd) and the variation(s) will take effect 14 days after such notice is given but never any earlier than the expiration of the Period of the Agreement. If notice of variation is given, the Customer may terminate the Agreement by giving written notice to Content Maximiser Pty Ltd within 14 days of receiving notice of variation, such termination to take effect when the variation would have taken effect save for the termination by the Customer. The Customer must pay Content Maximiser Pty Ltd the sum of all monies due and payable but unpaid which includes any balance of a lump sum amount.
9.3 Content Maximiser Pty Ltd may terminate the Agreement immediately by written notice to the Customer where the Customer:
(a) becomes bankrupt, or insolvent, or becomes subject to external administration; or
(b) commits a substantial breach or default under the Agreement; or
(c) repudiates the Agreement; and if Content Maximiser Pty Ltd does give such notice, the Customer must pay Content Maximiser Pty Ltd the sum of all monies due and payable but unpaid which includes any balance of a lump sum amount.
9.4 Content Maximiser Pty Ltd retains it right over all things pertaining to your matter until all invoices have been paid in full.
10.1 The Customer agrees that the Customer’s personal data may be used and retained by Content Maximiser Pty Ltd for the purposes of both provision and marketing of good & services, and also for processing of payment instructions.
11.1 Content Maximiser Pty Ltd will not be prevented or restricted from providing services to other clients including but not limited to your competitors or other parties whose interests may be in conflict with yours, provided we do not disclose your confidential information.
12.1 The Customer authorises Content Maximiser Pty Ltd and Content Maximiser Pty Ltd is able to communicate electronically using electronic mail.
13.1 These Terms and Conditions shall be governed by, performed under, and construed in accordance with the laws of the State of New South Wales and the parties hereto agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.
13.2 If any provision or any part of a provision of these Terms and Conditions is held invalid, unenforceable or illegal for any reason, these Terms and Conditions shall remain otherwise in full force apart from such provision or such part of a provision which shall be deleted.
13.3 Content Maximiser Pty Ltd can assign it rights under the Agreement upon the provision of 30 days written notice to the Customer. The Customer cannot assign its rights under the Agreement without the express written consent of Content Maximiser Pty Ltd.
14. Force Majeure
14.1 Content Maximiser Pty Ltd will not be liable to the Customer for any delay or failure to fulfil its obligation to the extent that such delay or failure is caused beyond its control, including but not limited to, fire floods, natural disasters, terrorism, wars, strikes, lockouts and industrial disputes.
Attachment A: PPC Terms
This schedule provides additional specific terms and conditions for the provision of PPC Services by Content Maximiser Pty Ltd. Where the terms and conditions in this Schedule are in conflict with any other terms, the terms and conditions in this schedule will prevail.
1.1 The duration of the Agreement is twelve months unless otherwise stated in the Customer proposal.
2.1 The fee for PPC Services is stated in the Customer Proposal as a base monthly fee plus GST payable in advance.
2.2 The first monthly fee plus GST is payable on setting up the account and payable monthly thereafter.
2.3 Monthly fees will be calculated as the base monthly fee stated in the Customer Proposal plus GST per month or a specific percentage of the total AdWords spend, whichever is greater. Adjustments for amounts greater than the monthly fee will be made at the end of each month and be payable on the next invoice issued to the Customer.
3.1 Content Maximiser Pty Ltd will offer a managed AdWords service with the following provisions:
(a) Content Maximiser Pty Ltd will setup a new AdWords account for the Customer.
(b) Content Maximiser Pty Ltd will have sole access and retain ownership of the new AdWords account.
(c) Content Maximiser Pty Ltd will provide the Customer via Google Analytics with access 24/7 to reporting and campaign date.
(d) Content Maximiser Pty Ltd will endeavour to spend the predetermined Google click cost budget each month. Content Maximiser Pty Ltd will not be liable for any under or over spend.
(e) The Customer is liable for all AdWords charges generated from the AdWords account.
4.1 All fees are payable monthly in advance.
4.2 All fees including Click costs payable to Google shall be paid by the Customer either by:
(a) the provision of a credit card by the Customer to Content Maximiser Pty Ltd that can be used to pay Google click costs directly to Google up to a defined spending budget as confirmed by the Customer together with the fees of Content Maximiser Pty Ltd; or
(b) the Customer providing a direct debit authority the fees of Content Maximiser Pty Ltd including Google click cost budget for payment directly into the Content Maximiser Pty Ltd bank account which shall be transacted each month before Content Maximiser Pty Ltd makes payment to Google. Content Maximiser Pty Ltd will raise an invoice for the click costs and GST and be responsible for paying Google for the click costs due from the pre deposited amount.
5.1 Refer Section 9 of the Terms and Conditions.
Attachment B: Website Terms
Content Maximiser Pty Ltd reserves the right to recover additional costs for any work carried out under the following circumstances:
1.1 If the scope changes to the extent that substantially alters the specifications in the proposal including but not limited to:
(a) Additional pages and features
(b) Changes to functionality
(c) Uploading of additional products, images & content
(d) Professional photography and video content
(e) Generation and editing of content
(f) SEO Migration
(g) Plugin updates, site core updates and security updates.
1.2 Subsequent changes to appearance & layout after finalised and approved by the customer
1.3 Delays by the customer in providing Content Maximiser Pty Ltd with required information and content
1.4 After the website is handed over to the customer any further work carried out by Content Maximiser Pty Ltd at the customer’s request
1.5 Issues identified 30 days after the website going live which are unlikely to be due to the original site coding and or design Content Maximiser Pty Ltd’s rate for additional work will be charged at $200 per hour. Content Maximiser Pty Ltd can provide a monthly costing for any ongoing site maintenance i.e plugin and security updates.