Terms and Conditions

Terms & Conditions

Terms & Conditions set out here are of general nature in regards to services provided for transparency

I’m happy to clarify any questions about elements within my terms & conditions.

General

The Terms & Conditions set out here are of general nature in regards to services provided by Kevin Kelly Web Design (including Kev Creates, OAdesign). Terms & Conditions may alter when appropriate, specific to individual services provided. Note that these override the terms as set out here.

The parties have agreed that the Developer (Kevin Kelly Web Design) shall provide the Customer (The Customer, The Client) with website design and development and related services on the terms and conditions as set out in this agreement.

The Developer shall:

  • Provide the design and development services as set out in Schedule 3 (Services). The provision by the Developer of the Services shall also be referred to as the project (Project);
  • design, develop and deliver the website (Site) to be located at [customers URL];
  • design, develop and deliver the software for the Site commissioned by the Customer as set out in Schedule 2.

Third Party Products

The third-party software products listed in Schedule 2 (Third Party Products), shall be supplied in accordance with the relevant licensor’s standard terms. The one-off licence fee for such Third Party Products is included in the charges payable as per clause 5.1.

Charges and Payment

Following Acceptance, the Developer shall issue an invoice in respect of the charges, and the Customer shall pay to the Developer the charges calculated correctly in accordance with Schedule 5 and set out in such invoice within 14 days of receipt of it, except for any amount in respect of which there is a genuine dispute.

All Prices are in Australian Dollars (AUD)

All charges are inclusive of GST.

All deposits are NON REFUNDABLE.

Site Content

Subject to the description of Services noted in Schedule 3, the Developer shall update the Site with Materials provided from time to time by the Customer.

The Developer shall indemnify the Customer against all damages, losses and expenses arising as a result of any action or claim that the content of the Site (other than the Customer materials) constitutes Inappropriate Content.

Warranties

Each of the parties warrants to the other that it has full power and authority to enter into and perform this agreement.

The Developer shall perform the Services with reasonable care and skill and in accordance with generally recognised commercial practices and standards.

The Developer warrants that operation of the Site will be uninterrupted and free of errors, viruses and material defects and that the Site will perform in accordance with the Site Specification for a period of 12 months from Acceptance. If the Site does not so perform, the Developer shall, for no additional charge, promptly ensure that the Site complies with the Site Specification.

Limitation of Remedies and Liability

Nothing in this agreement shall operate to exclude or limit either party’s liability for:

  • any breach of the terms implied by Australian Law; or
  • any other liability which cannot be excluded or limited under applicable law.

Neither party shall be liable to the other for any loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.

Intellectual Property Rights

Intellectual Property Rights shall mean all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trademarks, service marks, trade names, patents, petty patents, utility models, design rights, semiconductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off.

All Intellectual Property Rights in the Site Specification and the Site (including in the content of the Site and the Site Software) arising in connection with this agreement shall be the property of the Customer, and the Developer hereby assigns all such Intellectual Property Rights to the Customer. The parties shall execute all documents necessary to give effect to this clause.

The Developer shall indemnify the Customer against all damages, losses and expenses arising as a result of any action or claim of infringement of Intellectual Property Rights of a third party.

The indemnity in clause 9.3 is subject to the following conditions:

  • the Customer promptly notifying the Developer in writing of the claim;
  • the Customer making no admissions or settlements without the Developer’s prior written consent;
  • the Customer giving the Developer all information and assistance that the Developer may reasonably require; and
  • the Customer allowing the Developer complete control over the litigation and settlement of any action or claim.

The Developer shall not use or re-create the look and feel of the Site or anything substantially similar to it.

Term and Termination

This agreement shall commence on the Effective Date and shall (subject to earlier termination pursuant to this clause) terminate automatically on Acceptance of the Site and payment of all outstanding sums

Either party may terminate this Agreement immediately at any time by written notice to the other party if:

  • that other party commits any material breach of its obligations under this Agreement which (if remediable) is not remedied within 14 days after the service of written notice specifying the breach and requiring it to be remedied; or
  • that other party becomes insolvent or there is a change of control at the other party or the other party ceases to trade; or
  • that other party has been subject to a Force Majeure Event for a continuous period of more than 90 days.

On expiry or termination of this agreement:

  • all licences granted to the Developer under this agreement shall terminate immediately;
  • the Developer shall promptly return all Customer Materials and all copies of the Site Specification to the Customer, and shall provide to the Customer an electronic copy of the Site (including all content on the Site); and
  • all provisions of this agreement shall cease to have an effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.

Data Protection

The Developer warrants that, to the extent it processes any Personal Data on behalf of the Customer:

  • it shall act only on instructions from the Customer; and
  • it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.

In this clause, Personal Data has the meaning given in the Privacy Policy.

Force Majeure

Force Majeure Event shall mean any event arising which is beyond the reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war).

A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this agreement shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay will continue. The affected party shall take all reasonable steps to mitigate the effect of the Force Majeure Event.

Confidentiality

Confidential Information shall mean all information whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:

  • identified as confidential at the time of disclosure; or
  • ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.

Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.

Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.

The obligations set out in this clause shall not apply to Confidential Information which the receiving party can demonstrate:

  • is or has become publicly known other than through a breach of this clause; or
  • was in possession of the receiving party prior to disclosure by the other party; or
  • was received by the receiving party from an independent third party who has full right of disclosure; or
  • was independently developed by the receiving party; or
  • was required to be disclosed by a governmental authority, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.

The obligations of confidentiality in this clause shall not be affected by the expiry or termination of this agreement.

This clause supersedes the terms of any Non-Disclosure Agreement between the Developer and the Customer, which is hereby terminated.

Notices

A notice given under this agreement:

  • shall be in writing in the English language (or be accompanied by a properly prepared translation into English);
  • shall be sent for the attention of the person, and to the address, fax number or e-mail address given in this clause (or such other person, address, fax number or e-mail address as the receiving party may have notified to the other, such notice to take effect five days from the notice being received); and

shall be:

  • delivered personally; or
  • sent by e-mail; or
  • sent by pre-paid first-class post, recorded delivery or registered post; or
  • (if the notice is to be served or posted outside the country from which it is sent) sent by registered airmail.

A notice is deemed to have been received:

  • if delivered personally, at the time of delivery; or
  • in the case of fax or e-mail, at the time of transmission, provided a confirmatory copy is sent by first-class pre-paid post or by personal delivery before the end of the next bank working day; or
  • in the case of pre-paid first class post, recorded delivery or registered post, 48 hours from the date of posting; or
  • in the case of registered airmail, five days from the date of posting; or
  • if deemed receipt under the previous paragraphs of this clause is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is not a public holiday in the place of receipt) when business next starts in the place of receipt.

To prove service, it is sufficient to prove that the notice was transmitted by fax to the fax number or e-mail address of the relevant party or, in the case of post, that the envelope containing the notice was properly addressed and posted.

Publicity

All media releases, public announcements and public disclosures by the Developer relating to this agreement or its subject matter, including promotional or marketing material, shall be coordinated with the Customer and approved by the Customer prior to release.

Assignment

The Developer may not assign or transfer any of its rights or obligations under this agreement. The Customer may assign or transfer any of its rights or obligations under this agreement, provided it gives prior written notice to the Developer.

Entire Agreement

Except as provided in this clause, neither party shall have any remedy in respect of any untrue statement (whether written or oral) made to it on which it relied in entering into this agreement (Misrepresentation), and neither party shall have any liability other than pursuant to the express terms of this agreement. Nothing in this Agreement shall exclude or limit either party’s liability for any Misrepresentation made knowing that it was untrue. Each party’s liability for Misrepresentation as to a fundamental matter, including as to a matter fundamental to that party’s ability to perform its obligations under this agreement, shall be subject to the limit set out in the Limitation of Liability clause.

Third Party Rights

The right of the parties to terminate, rescind, or agree any amendment, variation, waiver or settlement under this agreement is not subject to the consent of any person who is not a party to this agreement.

This agreement is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person.

Variation and Waiver

A variation of this agreement shall be in writing and signed by or on behalf of both parties to this agreement

A waiver of any right under this agreement is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action

Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.

Severance

If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

Governing Law and Jurisdiction

This agreement and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with Australian Law.

The parties irrevocably agree that the courts of Australia have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement.

This agreement has been entered into on the date stated at the beginning of it.

Web Design Specific Terms

Terms & Conditions set out here override the General Terms.

Web Design Packages

Unless otherwise stated in writing via e-mail, package details are clarified here:

Guaranteed Fixed Price means that every item in a given package with a tick is covered by the guarantee. Products and / or services outside of the package are NOT part of the guarantee.

100% Satisfaction Guarantee means your project will be completed as outlined, and, to your satisfaction.

Update: Unfortunately, due to some taking advantage of the wording, the guarantee means if you are not satisfied, I will do all I can to rectify the situation. If I am unable to satisfy your requirements, the project will be cancelled and a full refund may be issued LESS the deposit.

7-day Money Back Guarantee

Money Back Guarantee applies where specifically outlined within this website, and overrules the above clause relating to a full refund may be issued LESS the deposit.

Full Function WordPress Site means your website will be built on the WordPress platform.

Unlimited Pages means I will create the specific pages as set out in the agreed SOW. You are free to create as many pages (unlimited) as you wish. If you require me to create the extra pages, works will be charged out at $90 per hour unless a new agreed SOW is put in place.

Custom Design means your website design never to be copied or reused by Kevin Kelly Web Design. Obviously I can not control others on the World Wide Web.

SEO Optimised means your site will be built with current best practices for Google’s expectations. Please note: SEO Optimised is NOT the same as an SEO Package.

Google Optimised means I will submit your finished site to Google for indexing and set up Google Analytics so you can view your sites traffic. I will Also set up Google My Business so you can manage your business on Google.

12 Month Care Package means all site maintenance is taken care of for 12 months. This includes all WordPress and SEO updates, serverside issues and minor content tweaks. Minor content tweaks mean spelling corrections, text (copy) replacement (provided by you unless an agreement is in place).

Content Creation means I will create relative content for your site. Content may refer to text (copy), photos, graphics or sound.

Domain Registration means I will register a domain for you on your behalf and is applicable for 12 months (24 months for .com.au domains). Limitations may apply if the desired domain is unavailable. After 12 months, you are responsible for renewing domain registration, valued at $60 p/a unless cancelled in writing (e-mail)

Premium Web Hosting may be included in a package for a 12 month period. After 12 months, you are responsible for renewing the web hosting package valued at $300 p/a unless cancelled in writing (e-mail)

SSL Security (The green padlock) may be included in a package for a 12 month period. After 12 months you are responsible for renewing your SSL, valued at $150 p/a unless cancelled in writing (e-mail)

Plans may include the Nightly Backup of your site for a 12 month period. After 12 months you will be charged $150 p/a for this service unless cancelled in writing (e-mail)

99.9% Uptime Guarantee is only possible with Premium Web Hosting.