1. About this Agreement
1.1 How a Proposal can be accepted
By providing the Client with a signed copy of the Proposal, PlinkIT is making an offer to enter into an Agreement with the Client. The Client may accept the terms of this Agreement by: signing the Proposal, whether physically or electronically, and returning it to PlinkIT; instructing and engaging PlinkIT after receiving the Proposal; or paying the Fees to PlinkIT.
Failure by the Client to accept this Agreement within 14 days of their receipt of this Agreement will result in the immediate withdrawal of the offer.
1.2 How long the Agreement lasts
This Agreement is binding from the Commencement Date and will continue for the Term unless terminated earlier in accordance with clause 11, notwithstanding the provision of the Services anticipated by this Agreement may predate its execution.
1.3 What are Special Conditions?
This Agreement may contain Special Conditions as set out in the Proposal. Special Conditions operate as terms in addition to terms contained in this Agreement. If there is any inconsistency between any Special Condition and any other term contained in this Agreement the effect of the Special Condition prevails over any inconsistent term to the extent of that inconsistency.
2. About PlinkIT’s Services
2.1 How and when will the Services be provided.
PlinkIT will provide the Services, subject to this Agreement. Services will be provided between 9:00am and 5:00pm on Business Days unless otherwise determined by PlinkIT in its sole discretion, acting reasonably.
PlinkIT agrees to establish and maintain clear channels of communication, at all reasonable times, with the Client, provide the Services professionally, efficiently and within any timeframe(s) set out in the Proposal, or in any event, in a timely manner and promptly inform the Client of any change of circumstances that may materially impact the provision of the Services.
In performing the Services, PlinkIT will comply with relevant laws including State and Federal laws and local government laws and regulations and observe the Client’s reasonable directions in relation to security or the use of any of its facilities or equipment.
2.2 What happens if the Services need to change?
The Client agrees and acknowledges that the Fees are based on the scope of the Services stipulated in the Proposal. If the Client wishes to change the scope or specifications of the Services after the Commencement Date (Variation), PlinkIT will negotiate with the Client in respect to extra Fees (Additional Fees) which result from the Variation. Unless otherwise agreed in writing, the Additional Fees will be charged at the Default Rate.
For the avoidance of doubt any change that is considered by PlinkIT, at its sole and absolute discretion, to be a change to the scope of the Services, will be considered a Variation, any additional work required owing to a change in third party software or systems will also be considered a Variation and PlinkIT is under no obligation to accept a Variation requested by the Client.
PlinkIT may provide Services that are to be executed on a rush basis on the request of the Client. (Rush Work) means work that the Client requests PlinkIT to complete within one (1) week from the request. Rush work is considered a Variation and will be charged Additional Fees.
2.3 PlinkIT may appoint employees and sub-contractors to help deliver the Services
PlinkIT may appoint employees or agents to provide all or part of the Services without consent or notice to the Client. The appointment of any such employee or agent does not relinquish PlinkIT of its obligations under this Agreement. It is PlinkIT’s responsibility to ensure such entities are bound by the same obligations as PlinkIT.
2.4 Use and storage of Client Materials
The Client acknowledges, agrees and consents to PlinkIT storing, using, copying, transmitting, and backing up Client Materials and granting access, or otherwise disclosing, Client Materials to third parties, as reasonably required for the provision of Services to the Client under this Agreement.
The Client must maintain copies of any Client Materials provided to PlinkIT and must not rely on PlinkIT as a storage service provider. PlinkIT will not be liable or responsible for any failure by the Client to maintain its own copies of Client Materials.
3. Important Client obligations under this Agreement
3.1 The Client must Nominate a representative if PlinkIT requests it
The Client agrees, upon PlinkIT’s request, to nominate a key representative to liaise with PlinkIT, who has the authority to make decisions and give instructions on the Client’s behalf in relation to the Services. The Client agrees this nominated representative will be the sole individual which PlinkIT will be required to liaise with.
In order to achieve the objectives of the Proposal the Client has the following key responsibilities
The Client will:
a) provide PlinkIT with assistance in drafting written content;
b) be responsible for proof-reading and advising PlinkIT of necessary amendments to any written content developed by PlinkIT;
c) ensure that PlinkIT has access to all information, equipment and personnel, and the Client’s premises, as may be required in order for PlinkIT to provide the Services to the Client in accordance with this Agreement;
d) promptly, and in all circumstances within 5 Business Days of PlinkIT requesting it, provide PlinkIT with all approval, feedback, directions, instructions, information, personnel, Client Materials and access to the Client’s property, as may be required for PlinkIT to provide the Services;
e) establish and maintain clear channels of communication at all times with PlinkIT;
f) immediately inform PlinkIT of any change of circumstances that may materially impact the provision of the Services including any service failure or system threat;
g) take all reasonable information technology security precautions, and ensure the users of its computer systems take similar precautions;
h) reimburse PlinkIT the amount of all expenses reasonably and properly incurred by it in the performance of its duties under this Agreement, including travel expenses between PlinkIT premises and the Client’s site, accommodation and subsistence expenses, and all other expenses incurred or required to be incurred by PlinkIT to promptly and efficiently provide the Services; and
i) promptly provide PlinkIT with directions, instructions or information which are requested by PlinkIT.
4. Performance limitations
4.1 SEO goals, KPI’s and similar objectives are targets not guarantees
The Client acknowledges and agrees that all key performance indicators, targets, search engine optimisation (SEO) goals or similar objective evaluation criteria (KPIs) agreed between PlinkIT and the Client, while realistic, are aspirational only.
PlinkIT makes no representations, gives no warranties, and makes no guarantees that the Client will achieve, complete, or satisfy any KPIs over any time period, or at all, generate any financial return or other benefit over any time period or not incur a loss over any time period.
The Client acknowledges and agrees that the suitability, accuracy, or efficacy of any Services may be subject to various factors which are outside the reasonable control of PlinkIT, including but not limited to: the terms and policies adopted by third party service providers, such as Google, Facebook, and other social media or communications services utilised by the Client; market conditions and sentiment; macro-economic or geopolitical factors; industrial relations events; and changes in laws and regulations.
The Client acknowledges and agrees that in pursuit of the KPIs, it may be necessary for PlinkIT to use unnatural language in the formation of written content and therefore, PlinkIT is not liable for the use of such unnatural language in any written content.
4.2 Limitations associated with Websites
The Client acknowledges that any Websites that are developed by PlinkIT may run on third party platforms or use open source software. If any of these third party platforms, software or environments make an update or discontinue this may cause the Client’s software to be interrupted or not operate at full functionality. Applying fixes to third party software is considered a Variation.
Where Services are provided in relation to any Website or other asset of the Client’s which were not originally created or developed by PlinkIT, the Client acknowledges and agrees that:
unless otherwise agreed by PlinkIT, PlinkIT has no obligation to identify, detect, or report any defects to the Client, although PlinkIT may choose to do so in its discretion without incurring any liability to the Client; and
PlinkIT accepts no liability for any claims or losses suffered by the Client due to the use, non-use, misuse, or malfunction of any Website or other asset of the Client, even where PlinkIT has been engaged to provide Services in relation to any such Website or other asset.
4.3 Browser compatibility
The Websites are designed to work on recent versions of the major desktop browser platforms including Apple Safari, Google Chrome, Microsoft Edge and Mozilla Firefox or their substitutes (while they continue to be maintained). We are not liable nor will we amend the Website if you or your clients suffer performance degradation or failure when accessing the Website from outdated browsers, for example, Microsoft Internet Explorer 6 or 5.5.
5. The Client must provide certain resources associated with the Service delivery
The Client acknowledges and agrees that, unless otherwise agreed by PlinkIT and the Client, in writing, the Services do not include the supply of any hardware, internet connections, data hosting services, cloud computing services, or supporting software or infrastructure which may be required to use or operate any Deliverable (whether over the Internet or otherwise) (Operational Requirements)
Furthermore, the Client will be required, at its own cost and expense, to acquire, arrange and install all Operational Requirements in accordance with PlinkIT’s requirements which may involve the payment of service fees, subscription fees, licence fees and other fees to third party suppliers identified by PlinkIT.
6. Payment of the Fees to PlinkIT
PlinkIT will invoice the Client for the Fees. All Fees are inclusive of GST. If any GST is imposed on a supply under this Agreement, PlinkIT will itemise any applicable GST on a tax invoice and the Client must pay the GST amount with and in addition to the Fees. The Client must pay PlinkIT’s invoice in accordance with the Payment Terms.
If the Client fails to pay PlinkIT the Fees in accordance with this clause 6, PlinkIT will have the right to immediately initiate proceedings against the Client to recover the overdue amount (this right takes precedence over the conditions in clause 12 of this Agreement) and to recover all costs in relation to any action taken against the Client to recover overdue amounts, including but not limited to legal costs and outlays on a full indemnity basis.
7. Intellectual Property
7.1 Client Materials remain the Client’s
The parties acknowledge that if the Client makes available to PlinkIT any Client Materials, then where the Client owns the Intellectual Property in said materials, the Client retains ownership. The Client grants PlinkIT a non–exclusive, perpetual, royalty free and worldwide licence to use the Client Materials for the sole purposes of providing the Services.
The Client warrants that it owns, or is otherwise licensed to use, the Intellectual Property in all Client Materials, and that use of the Client Materials by PlinkIT will not infringe the rights of any third party.
7.2 PlinkIT IP remains with it, however the Client is licenced to use it where necessary
No ownership or other rights in PlinkIT IP are transferred to the Client under this Agreement and PlinkIT retains its right to use PlinkIT IP for any purpose. To the extent that the Client may at any time acquire any right, title or interest in PlinkIT IP, the Client assigns to PlinkIT all such rights, title and interest.
To the extent that any PlinkIT IP is contained within the Deliverables, PlinkIT grants to the Client an irrevocable, non-exclusive, perpetual, assignable, royalty-free and worldwide licence to use the PlinkIT IP where it is necessary to operate any Deliverables.
7.3 If New IP is created as part of the Services, it is transferred to the Client upon payment of the Fees
The parties agree all New IP is owned absolutely by the Client and vests in the Client immediately upon payment of the Fees. To the extent that PlinkIT may at any time acquire any right, title or interest in New IP, PlinkIT assigns to the Client all such rights, title and interest in New IP upon payment of the Fees.
The Client grants PlinkIT an irrevocable, non–exclusive, perpetual, assignable, royalty free and worldwide licence to use New IP for the purposes of providing the Services.
7.4 PlinkIT may lawfully use third party IP in the delivery of the Services
PlinkIT may use third party materials as necessary to provide the Services. Use of third party materials may be subject to creative commons or open source licensing terms, or such third party licensing terms. Where PlinkIT has used third party materials in the Deliverables it warrants that the Deliverables will not infringe in any way on any third party’s Intellectual Property.
7.5 Advertising PlinkIT’s work
The Client grants PlinkIT an irrevocable, non–exclusive, perpetual, assignable, royalty free and worldwide licence to use images and screenshots of the Deliverables for the purpose of PlinkIT displaying its skills by reference to its previous work in a marketing and advertising context.
8. Each party agrees to keep Confidential Information, confidential
A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information. Each party will take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this Agreement, do not make public or disclose the other party’s Confidential Information.
A party will not be in breach of this clause 8 in circumstances where it is legally compelled to disclose the other party’s Confidential Information.
Notwithstanding any other provision of this clause 8, a party may disclose the terms of this agreement (other than confidential information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.
9. Limitation of liability
9.1 Implied conditions are excluded
The Client agrees that all implied guarantees, conditions and warranties are excluded from this Agreement, except any guarantee, condition or warranty (such as the consumer guarantees implied by the Competition and Consumer Act 2010 (Cth)), which cannot by law be excluded (Non Excludable Condition).
9.2 Limitation of liability
Subject to the Non-excludable Conditions, PlinkIT excludes all liability for any costs, expenses, losses and damages suffered or incurred directly or indirectly by the Client, in connection with this Agreement, whether that liability arises under contract, tort (including negligence) or under statute, including by:
a) misuse or user error except to the extent the misuse or error is caused by PlinkIT;
b) the delays, action, operation, inaction or failure of any third party, third party service, software or equipment;
c)any delays by the Client in providing Client Materials; or
d) any Force Majeure Event.
To the maximum extent permitted by law, PlinkIT’s liability for a breach is limited, at PlinkIT’s option, to in the case of goods: the re-supply of the goods or payment of the cost of the re-supply of the goods; or the replacement or repair of the goods or payment of the cost of replacement or repair of the goods and in the case of services: the re-supply of the services; or the payment of the cost of such re-supply of the services.
PlinkIT will not, under any circumstances, be liable to the Client for any Consequential Loss, except where such loss cannot be excluded in respect of a Non Excludable Condition.
PlinkIT will use reasonable efforts in providing the Services, however, subject to the Non Excludable Conditions and other than as set out in this Agreement, PlinkIT does not warrant or guarantee the Services are uninterrupted or error free or the Services for any fitness of purpose, performance, or compatibility.
10. Indemnity against third party services, Consequential Losses and breach of contract
The Client agrees to indemnify PlinkIT and its directors, employees, contractors, agents and representatives against any costs, expenses, losses, including Consequential Loss, damages and liability suffered or incurred arising directly or indirectly from the Client’s use of the Services, the Client’s breach of this Agreement, any negligent or unlawful act or omission by the Client in connection with the Services and any contract in force between PlinkIT and a third party in connection with the Services.
PlinkIT is not responsible for any damage or consequences if Client materials infringe on third party’s rights or are unlawful or illegal. The Client must indemnify PlinkIT and pay for all damages, costs, fees, expenses, and legal fees on an indemnity basis that PlinkIT incur due to Client Materials being infringing, unlawful or illegal in any country.
11. Ending this Agreement
11.1 Termination for breach of this Agreement
Either party may end this Agreement immediately by written notice if the other party commits any material breach of this Agreement and which, in the case of a breach capable of being remedied, is not remedied within 10 Business Days of a written request to remedy it, commits any material breach of any terms of this Agreement that is not capable of remedy or is guilty of dishonesty, serious misconduct or serious neglect of duty.
11.2 Termination of this Agreement where no breach has occurred
Either party may end this Agreement at any time for any reason by giving the other party 30 days written notice.
11.3 What are the consequences of terminating this Agreement?
If this Agreement ends for any reason, then in addition to any other rights PlinkIT may have:
a) PlinkIT may issue an invoice for Fees relating to Services provided up to the point of termination but not yet invoiced for; and
b) the Client must pay all of PlinkIT’s outstanding invoices whether or not due, including any invoice issued under clause 11.3(a).
c) If this Agreement ends for any reason and PlinkIT was not in default of this Agreement, then:
PlinkIT is entitled to Fees for the balance of the contract period (if any) of this Agreement (calculated using the Fees applicable as at the date of termination);
d) PlinkIT will return to the Client any login details to any third party services held on behalf of the Client; and
e) any amounts owing to PlinkIT under this clause 11.3, excluding any costs which can be reasonably mitigated, become immediately due and payable.
The parties agree that the amounts owing under this clause 11.3 do not constitute a penalty but represent a reasonable estimate of fair compensation for the losses that may reasonably be anticipated from early termination in light of PlinkIT’s sunk costs and ongoing commitments.
If PlinkIT terminates this Agreement under clause 11.2 then it will refund to the Client any unused portion of Fees which were prepaid for this Agreement, less any other amounts owed to PlinkIT.
12. How we resolve disputes if they arise
A party claiming a dispute has arisen under this Agreement (Dispute) must give written notice to the other party specifying the nature of the Dispute. The parties must submit themselves to the dispute resolution procedure set out in this clause 16 before commencing any legal proceedings.
If the parties cannot resolve the Dispute between themselves within 30 days then either party may require the Dispute to be referred for mediation. The mediation must be undertaken in accordance with the Resolution Institute Mediation Rules, in Brisbane, Queensland, and unless otherwise agreed between the parties using a mediator nominated by the Resolution Institute. If the Dispute is not resolved within 30 days of the mediation commencing either party may commence proceedings in respect of the Dispute.
Each party must pay its own internal and legal costs in relation to complying with this clause 16. The mediator’s costs are to be shared equally.
The parties acknowledge and agree this clause 16 does not apply to the recovery of any debt or prevent a party from instituting proceedings for the purposes of seeking urgent injunctive or similar interim relief from a court.
Assignment – Neither party may assign, encumber, declare a trust over or otherwise create an interest in its rights under this document without the other parties consent.
Entire Agreement – This Agreement sets out all the parties’ rights and obligations relating to the subject matter of this Agreement, and it supersedes all previous agreements or understandings between the parties in connection with the relevant subject matter.
Force Majeure Event – If a party is affected by a Force Majeure Event, they must immediately notify the other party of the circumstances. The parties’ obligations are suspended for the duration of and to the extent that they are affected by the Force Majeure. However, either party may end this Agreement if the Force Majeure continues for more than 60 days. Nothing in this clause affects the Client’s obligation to pay the Fees.
Governing law – This Agreement is governed by and is to be construed in accordance with the laws applicable in Queensland. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Queensland.
Severability – If any part of this Agreement is invalid, unlawful or unenforceable, the invalid, unlawful or unenforceable part of this Agreement will not apply but the other parts of this Agreement will not be affected.
Survival – Clauses 7, 8, 9, 10, 11.3, 12 and any other clause in this Agreement which is expressed to survive or by its
nature survives, will survive termination or expiry of this Agreement for any reason.
Variations – This Agreement may only be varied by written agreement and signed by the parties.
14. Definitions and interpretation
Definitions give context to capitalised terms.
Additional Fees is as defined in clause 2.2.
Agreement means this legally binding agreement arising between PlinkIT and the Client.
BigCommerce means an ecommerce platform that provides software as a service to retailers.
Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in the Sunshine Coast, Queensland.
Client means the party identified as the “Client” in the details section at the beginning of this Agreement.
Client Material means any material including documents, information, images, data or Intellectual Property provided by the Client to PlinkIT in connection with this Agreement.
Commencement Date takes its meaning from the definition in the Proposal under “Commencement Date”.
Confidential Information means information that is by its nature confidential including but not limited to: confidential information relating to the Client or the Client’s clientele; information relating to the personnel, policies, practices, clientele or business strategies of PlinkIT; and information relating to the terms of this Agreement, but does not include: information already known to the receiving party at the time of disclosure by the other party; or information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this Agreement.
Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than the cost of repair), loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damages.
Default Rate means $100 per hour plus GST.
Deliverables means any output produced by PlinkIT as anticipated during the provision of the Services, including any websites and written content.
Fees means any money payable by the Client to PlinkIT for the Services.
Force Majeure Event means an unforeseen event beyond the control of the affected party, including an act of war (whether declared or not) or terrorism, the mobilisation of armed forces, civil commotion or riot, natural disaster, health epidemic, hacking, industrial action or labour disturbance, currency restriction, embargo, action or inaction by a government, a failure of a supplier, public utility or common carrier or computer disruption due to the effects of a computer virus, trojan, malware, ransomware or other malicious code.
Intellectual Property means all present and future rights conferred by statute, common law or equity (and all moral rights) in or in relation to business names, circuit layouts, computer software, confidential information, copyright, designs, domain names, formulas, inventions, knowhow, patents, plant varieties, recipes, trade marks, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic field, the benefit of any application to register such a right and the benefit of any renewal or extension of such a right.
Kajabi means a content marketing platform to sell online classes.
New IP means any Intellectual Property generated under this Agreement but excluding the Client Materials and PlinkIT IP.
Payment Terms means the payment arrangement for the Services as set out in the Proposal under “Payment Terms”.
PlinkIT IP means any Intellectual Property which are independently created by PlinkIT and which are in existence before the date of this Agreement or come into existence after the commencement of this Agreement but are not created exclusively for the Client.
Proposal means the written agreement between the parties setting out the details and price payable for the Services, to which these terms apply.
Rush Work has the meaning given in clause 2.2.
Services means the Services provided by PlinkIT as described in the Proposal.
Shopify means an ecommerce platform that is used to build online or offline stores.
Special Conditions are terms as set out in the Proposal under “Special Conditions”.
Term means the period of time specified in the Proposal under “Term”, or where not specified, for the period of time until the Services are completed, and the Deliverables delivered.
Variation has the meaning given in clause 2.2.
Website means any website, content management system and associated third party plug-ins and includes the content of the website.
Wix means a cloud-based development platform creating websites and online stores.
WordPress means the third party content management system used to operate the website.
In this Agreement, headings are for convenience only and do not affect the interpretation of this Agreement.