Our Commitment to you
i) We respect our CLIENT’s confidentiality (Item 7).
ii) We use open source solutions wherever possible. This means no vendor lock-in and software fees are charged at ‘fair and reasonable rates’ or in most cases, fees are not applicable (Item 12.1).
iii) If the CLIENT determines that the website does not comply with the project components agreed to in this document, MODERN VISUAL agrees to carry out any necessary and reasonable modifications without extra charge (Item 27).
iv) If the CLIENT is not happy with our service, the CLIENT is free to move their domain name, website and data in its entirety to another service provider (Item 21.1).
This document defines the terms and conditions of the working relationship of the Parties to this Agreement. Unless otherwise agreed to in writing by both the parties, the terms of this Agreement will commence on the date specified.
All services that MODERN VISUAL ABN 75 482 358 472 (referred to as “MODERN VISUAL”) may be contracted to produce or provide for (referred to as CLIENT) will be subject to the following:
As used herein and throughout this Agreement:
“Agreement” means the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule(s), together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
“Content” means all materials, information, photography, writings and other creative content.
“Copyrights” means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Australian and International Copyright Law.
“Deliverables” means the services and work product specified in the Proposal to be delivered by MODERN VISUAL to the Client, in the form and media specified in the Brief.
“Services” means all services and the work product to be provided to Client by MODERN VISUAL as described and otherwise further defined in the Brief.
“Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used in the final Deliverables.
“Open Source Software” means computer software that is available in source code form for which the source code and certain other rights normally reserved for copyright holders are provided under a software licence that permits users to study, change, and improve the software.
“Ongoing Management” means the ongoing work to keep the website functioning and secure. This includes, but is not limited to: data management, backups, maintenance, upgrades and software patches.
The CLIENT authorises MODERN VISUAL to perform the services outlined in this Agreement for the CLIENT, which may include, but is not limited to, accessing their hosting account and disk space, creating databases and applications, and submitting the project to search engines.
2. Agreement Scope and Period
Services supplied, costs and rates are limited to what is set forth in this agreement for the period specified. Any additional services will require an additional agreement. We reserve the right to adjust our service and rates after the period specified in this Agreement.
3. Costs and Fees
3.1 Professional services are billed at $150 per hour plus GST for the duration of this agreement. MODERN VISUAL reserves the right to adjust rates after the period of this agreement. Small tasks are billed in 15-minute blocks.
3.2 Fees for professional services do not include outside purchases such as, but not limited to, software licensing, copyright licensing, printing, photography, color printouts, laminating, illustrations, shipping and handling or courier service. Expenses are itemized on each invoice. Expenses are subject to GST. Outside purchases will be approved by client before purchase.
4. Meetings and Production Schedules
4.1 Production schedules will be established and adhered to by both the CLIENT and MODERN VISUAL. Where production schedules are not adhered to by the CLIENT, final delivery date or dates will be adjusted accordingly. Additional costs may be incurred due to increases in time to manage or deliver the services.
4.2 MODERN VISUAL reserves the right to adjust project milestones during the project.
4.3 The project milestones set do not factor in extensions of time resulting from client’s internal decision-making/information gathering processes, delays in the client providing information to MODERN VISUAL, changes requested to the original project proposal, delays due to website host companies and absence of the CLIENT.
4.4 Both The CLIENT and MODERN VISUAL are required to provide the other party with 24 hours notice to re-schedule meetings. Meetings that are not re-scheduled and missed by the CLIENT or MODERN VISUAL are charged at $50 plus GST for the first, $100 plus GST for subsequent missed meeting.
Estimates are based on a reasonable time schedule, and may be revised to take into consideration the CLIENT’s requested “priority scheduling”. Requested priority schedules that require overtime and weekend work will be subject to 60% markup at an hourly rate and need to be agreed to beforehand by both parties.
Overtime is defined as between 6.00pm – 9.00am Monday to Friday, all day Saturday, Sunday and public holidays, unless otherwise agreed.
6.1 The CLIENT agrees to pay MODERN VISUAL in accordance with the terms specified in each proposal/estimate. The CLIENT will be required to pay 25% of the project cost before commencement of work. A further 25% is required to be paid once a concept has been approved prior to its building phase, all subsequent balances due are payable upon completion of key stages of the project.
6.2 The CLIENT is required to pay milestone payments within 7 days of invoicing. MODERN VISUAL reserves the right to pause work after 7 days upon late payment, pending payment or negotiation.
6.3 Websites and commissioned work will be published live or transferred to the clients server upon payment of all project fees.
6.4 In the event of cancellation of the project prior to completion, the CLIENT must pay MODERN VISUAL a fee for work completed, based on the contract price and the expenses already incurred.
7. Confidentiality and Privacy
7.1 MODERN VISUAL will not disclose to any third party or use, other than for the purposes of this agreement, any knowledge or information imparted to or obtained by it during or in connection with the fulfilment of this Agreement, which is of a secret or confidential nature relating to the business, equipment, processes, products, services or business strategies offered or employed by the CLIENT.
7.2 This obligation of confidence will cease to apply in relation to information that MODERN VISUAL is required to disclose by any law, or which becomes part of the public domain other than as the result of a breach by MODERN VISUAL of its obligations of confidence under this Agreement.
MODERN VISUAL reserves the right to assign subcontractors or external suppliers. Any subcontractors or external suppliers will be bound to the terms of this Agreement. MODERN VISUAL will notify client of subcontractors working on this project and their role.
MODERN VISUAL is confident that the CLIENT’s expectations will be exceeded and as such is notifying the CLIENT that MODERN VISUAL reserves the right to use the CLIENT’s website, associated graphics and any unused ideas and development in the promotion of MODERN VISUAL services. The CLIENT agrees to allow MODERN VISUAL to retain a credit and link from the footer of the website.
The CLIENT is responsible for all trademark, servicemark, copyright and patent infringement clearances. The CLIENT is also responsible for arranging, prior to publication, any necessary legal clearance of materials MODERN VISUAL uses for this project. The CLIENT indemnifies MODERN VISUAL against any loss or damage arising directly or indirectly from any unauthorised use of photographs, text, or other Intellectual Property not under copyright ownership of the CLIENT.
11. Project Copyright
11.1 After acceptance of the website and payment of all sums due by the CLIENT, MODERN VISUAL agrees to assign perpetual and unrestricted copyright to use any materials produced by MODERN VISUAL in accordance with this Agreement to the CLIENT including exclusive usage rights to unique graphics.
11.2 MODERN VISUAL reserves all rights to licence (open source) and release all software code including website templates developed under this agreement.
12. Open Source Software
12.1 MODERN VISUAL makes extensive use of open source software and components to supply websites and services to the CLIENT. MODERN VISUAL will not charge additional licensing fees on open source software.
12.2 All software and components not developed by MODERN VISUAL retain the original licence and terms associated with them. MODERN VISUAL cannot assign any rights to the CLIENT and the CLIENT agrees to be bound by the original Author’s terms.
13. Dispute Resolution
In the event of unresolved disputes between the parties to this Agreement the following dispute resolution procedure will apply:
a) the party claiming that a dispute has arisen in relation to this Agreement shall give the other party written notice specifying the nature of the dispute;
b) within 10 Business Days of receipt of that notice the parties must hold discussions and negotiations in good faith in order to amicably resolve the dispute; and,
c) in the event that the parties cannot resolve the dispute through discussions and negotiations the parties shall refer the dispute to an independent mediator or expert as agreed or, failing agreement, as appointed by the Chief Executive Officer of LEADR and will use their best endeavours to resolve the dispute in mediation;
d) the cost of submission to an independent mediator or expert will be met equally by the parties.
14. Force Majeure
The Client and MODERN VISUAL shall not be deemed in breach of this Agreement if one party is unable to complete the Services or any portion thereof by reason of fire, earthquake, labour dispute, act of God, death, illness or incapacity or any local, state, federal, national or international law, governmental order or regulation or any other event beyond MODERN VISUAL or the Client’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, the party shall give notice to the the other party of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
15. Limitation of Liability
In all circumstances, the maximum liability of its Designers, Directors, Officers, Employees, Design Agents and Affiliates (“MODERN VISUAL’s parties”), to the CLIENT for damages for any and all causes whatsoever, and the CLIENT’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net cost of this project as specified in this Agreement. In no event shall MODERN VISUAL be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by MODERN VISUAL even if MODERN VISUAL has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
16. No Software Warranties
16.1 All software, technical solutions and systems are provided “as is” without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. MODERN VISUAL makes extensive use of third party solutions and cannot warranty systems that we have no control over.
16.2 If warranties are required, MODERN VISUAL will attempt to source warranted services. In this context any warrantee would be provided by a third party and MODERN VISUAL will assume no liability.
17. Purchased themes and other software
MODERN VISUAL takes no responsibility for the quality of purchased or leased themes, plugins and other software (defined as purchased software), assumed to be of a professional quality. If software is supplied with bugs and defects, MODERN VISUAL will not be liable for fixing them.
Either party may terminate this Agreement by giving 30 days written notice to the other of such termination. In the event that work is postponed or terminated at the request of the CLIENT, MODERN VISUAL shall have the right to bill pro rata for work completed through to the date of that request, while reserving all rights under this Agreement.
If additional payment is due, this shall be payable within fourteen days of MODERN VISUAL delivering an invoice to the CLIENT after notification by the CLIENT to stop work. In the event of termination, the CLIENT shall also pay any expenses reasonably incurred by MODERN VISUAL pursuant to this Agreement.
Part or all of any provision of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining provisions of this agreement continue in force.
Neither party may assign this Agreement or any rights under this Agreement without the prior written consent of the other party, which consent must not be unreasonably withheld.
21. Governing Law and Jurisdiction
This Agreement is governed by the laws of the State of Victoria within the Commonwealth of Australia and each party submits to the non-exclusive jurisdiction of the courts of that State.
22. Data, Security and Ongoing Management
22.1 Upon the end of this Agreement, The CLIENT is free to transfer their website management to another service provider. MODERN VISUAL will supply the last backup of the site and associated data. MODERN VISUAL will take all reasonable actions to transfer the CLIENT’S domain name to a new registrar.
22.2 Ongoing Management (see definition) is not included in this agreement and will require an additional agreement.
22.3 If The CLIENT does not proceed with an additional or Ongoing Management agreement, The CLIENT is responsible for Ongoing Management of the website and indemnifies MODERN VISUAL against any loss or damage arising directly or indirectly from website downtime or security breaches.
23. Client Responsibilities
If the CLIENT or their agent or contractor employed by the The CLIENT other than MODERN VISUAL attempts to update, edit or alter the site’s pages, infrastructure, source files or hosting management in a way that causes damage to individual pages or the site’s architecture, time to repair web pages will be assessed as an additional cost above the costs outlined in this agreement and at our professional or overtime rates.
24. Domain Names
24.1All domain names are legally owned by the CLIENT. All domain name registrations are subject to availability and registration rules. The CLIENT manages their domain(s) and payment of fees unless the CLIENT requests in writing that MODERN VISUAL manage the domain name(s) on behalf of the CLIENT. MODERN VISUAL will invoice the CLIENT when fees are due.
24.2 MODERN VISUAL uses Synergy Wholesale Pty Ltd (referred to as REGISTRAR) to register our CLIENTS’s domain names. CLIENTS are bound by the REGISTRARS’s “Domain name registration terms” which are found on their website: https://synergywholesale.com
24.3 The CLIENT indemnifies MODERN VISUAL against any loss or damage arising directly or indirectly from any failure of services provided by the REGISTRAR.
25.1 The CLIENT is responsible for contacting the chosen host for support relating to hosting matters. MODERN VISUAL will charge for costs incurred liaising with the hosting company and supporting the CLIENT with hosting related issues. MODERN VISUAL provides suitable hosting and will not charge for hosting related support for their service.
25.2 MODERN VISUAL will charge for costs incurred due to differences in hosting environment if installation and management exceeds standard time frames. This includes delays caused by slow server speeds and incompatibility with hosting environments.
26. Browser Variance
MODERN VISUAL websites are tested against the browsers and devices outlined in Schedule 2. Support for additional browsers or devices will be quoted by request.
Website visitors use different monitors with different settings. Colours and image quality of the website including graphics and photography may change between computers and monitors.
28. Testing and Acceptance of the Website
Once the project has, in the opinion of MODERN VISUAL been completed, MODERN VISUAL will notify the CLIENT either verbally or in writing, and provide the CLIENT with an opportunity to test and review the website. If the CLIENT determines that the website does not comply with the Project Components agreed to in this document, MODERN VISUAL agrees to carry out any necessary and reasonable modifications without extra charge.
29. Errors and Omissions
29.1 MODERN VISUAL is not liable for content errors or omissions.
29.2 The CLIENT indemnifies MODERN VISUAL against any loss or damage arising directly or indirectly from any errors and omissions.
All text must be supplied in digital format (TXT, RTF, HTML, MS Word, Open Office, InDesign) unless engaging our internal copywriting service.
Graphics and photographs are to be supplied in digital format to MODERN VISUAL. Photographs must not exceed a file size of 5mb each (unless by prior arrangement). Larger files will incur an extra cost due to increased time in processing.
All logos and branding must be provided in an industry standard vector format (preferences are: EPS, PDF, Illustrator).
MODERN VISUAL assumes that the client has a level of digital business skills that includes:
- Has setup and is fluent using email and attachments
- Has installed and is fluent using an internet browser using the latest version.
- Has installed (with broadband) and is fluent using skype
- Has installed and is fluent using dropbox or alternative
If the client cannot meet any of these expectations, it is assumed that the client will set up these tools and systems themselves, commission an external supplier or commission MODERN VISUAL to assist them in setting up these tools and processes. Failure to do so will significantly increase project management fees.
Due to the vast variance of devices and browsers, testing has become very complex. We provide simple testing using browser based emulators to test websites. We cannot test using physical devices and setups. We will test on the latest versions of browsers on the latest operating systems at the date of publishing the website. Stats are refrerenced from www.w3schools.com/browsers/:
Laptop/Desktop – Windows 7/OSX – Chrome
Laptop /Desktop – Windows 7/OSX – Firefox
Laptop /Desktop – OSX – Safari
Phone – IOS – Safari
Tablet (standard size ipad) – OSX – Safari
Phone – Samsung Galaxy S5 – Android – Chrome
MODERN VISUAL will test and optimise for additional browsers and devices if requested by the CLIENT before commencement of the project for additional fees.
MODERN VISUAL can also test and optimise for additional browsers and devices if requested by the CLIENT upon completion of the project for additional fees. It will likely be more expensive to test for extra browsers upon completion of the project.
CLIENT is responsible for all content.
Costs and Fees
If the project requires additional PM we will charge the client the additional time at $150 per hour plus GST. MODERN VISUAL has budgeted for Technical Development based on your initial brief. If the project requires additional Technical Development, which will be finalised in the Prototype planning phase we will quote the additional time at $150 plus GST per hour.
- Planning Workshops
- Prototype & Content Design
- Theme Selection
- Technical Planning
- Technical Development (ballpark)
- Project Management