Seventh Vision Pty Ltd ABN 40 120 650 606 trading as 7thVision (hereinafter called “7thVision”)

RECITALS

1. The Client wishes to engage 7thVision to provide the services detailed in this Agreement on the terms and conditions contained in this Agreement

2. The Client has agreed to engage 7thVision to perform one or more of the services detailed in an Order Form for the provision of services and acknowledges and agrees that the Order Form is to be read in conjunction with the terms and conditions of this Agreement (called “Agreement”) and further acknowledges that the Agreement and Order Form form part of the contract of engagement between 7thVision and The Client.

7thVision and The Client agree to the following terms and conditions:-

INTERPRETATION

In this Agreement, unless the contrary intention appears:

(a) Headings are for ease of reference only and do not affect the meaning of this Agreement;

(b) A reference to a right or obligation of any two or more persons confers that right or imposes that obligation, as the case may be, jointly and severally; and

(c) A reference to a party includes executors, administrators, permitted assigns and successors of that party.

1. DEFINITIONS AND INTERPRETATION

1.1. Definitions

In this Agreement, unless the context or subject matter otherwise require:

"The Client" is the party referred to in the Order Form to be read in conjunction with this, or who has otherwise engaged the services of 7thVision.

"Agreement" means this Agreement, (including the recitals, schedules, appendices and exhibits to it).

"Order Form" is an order for services, completed by The Client, and is to be read in conjunction with this Agreement.

"Standard Hourly Rate" is the hourly rate advised to The Client by 7thVision.

"Confidential Information" means all information disclosed (whether orally, in writing or in any other form) by one party (the ‘Disclosing Party’) to the other party (the ‘Recipient’) in connection with this Agreement which is identified as being confidential and all copies, notes and records and all related information based on or arising out of any such disclosure which is not:

1. In the public domain (other than as a result of a breach of this Agreement); or

2. Independently developed or known by the Recipient;

but this does not include Personal Information.

"Deliverables" means all products and services supplied or to be supplied under this Agreement.

"Fee" means the 7thVision fee set out in the Order Form.

"Intellectual Property" or "IPR" means all intellectual property rights in Australia of the parties hereto, including:

(a) Patents; copyright, rights in circuit layouts, registered designs, trade or service marks, trade, business or company names, indication of source or appellation of origin, and any right to have confidential information kept confidential;

(b) Any application or right to apply for registration of, or assert or waive, any of the rights referred to in paragraph (a);

(c) Trade secrets, ideas, concepts, materials, know-how and techniques; and

(d) Moral rights.

"Force Majeure Event" means an act of God, national emergency, insurrection, riot war or industrial action.

"Moral Rights" means all present and future rights of integrity of authorship, rights of attribution of authorship, rights not to have authorship falsely attributed and rights of a similar nature conferred by statute anywhere in the world.

2. ACCOUNTS

2.1. Accounts will be issued on such basis as may be agreed between 7thVision and The Client provided however that 7thVision reserves the right in its absolute discretion to vary the basis of issuing accounts (e.g. monthly, quarterly, or such other period/s as 7thVision may determine).

2.2. 7thVision may, in its absolute discretion, vary the payment terms of such accounts provided written notice equivalent to the prevailing fee payment period is provided by 7thVision to The Client.

2.3. The initial payment detailed in the Order Form for printing, graphic design or website design works must be paid prior to the commencement of design works by 7thVision. The Client acknowledges that the initial payment is a non-refundable payment.

2.4. The final payment for works completed by 7thVision must be made as provided for in the Order Form. 7thVision will issue an invoice upon completion of the project.

2.5. Prepayment

7thVision may, in its absolute discretion, require The Client to prepay an amount specified by 7thVision prior to it performing any of the works subject to this Agreement.

2.6. Corporate Client

Where The Client is a corporate entity 7thVision reserves the right to require of the Director/s of the corporate entity to provide a personal guarantee in support of the obligations of the corporate Client pursuant to the terms of this Agreement.

2.7. Late Payment Fee

7thVision may, at its option, impose a late payment fee of 1.1% per month compounding with respect to all monies owing by The Client to 7thVision. This fee shall be calculated on the daily outstanding balance of any amounts owing to 7thVision by The Client, and shall accrue from the day that the account first became overdue until 7thVision has received payment in full from The Client.

2.8. If The Client fails to pay an account issued by 7thVision for services provided by 7thVision it may, at its discretion, decline to provide further service/s to The Client until the outstanding account/s are paid. 7thVision further reserves the right in such an event to suspend access to The Client’s website/s, email account/s or other services provided by 7thVision to The Client. 7thVision reserves the right, at its absolute discretion, to charge a reconnection fee to effect the reinstatement of suspended services.

3. WEBSITE DESIGN AND DEVELOPMENT

3.1. The Client acknowledges that the standard of the intended design works detailed in the 7thVision portfolio is a fair representation of the design The Client can expect to secure for its own website.

3.2. The website concept design

7thVision will either update the existing website graphic design (if one exists) or will create a completely new website graphic design concept for The Client. The conceptual stage requires continual and timely feedback from The Client.

3.3. Number of website design concepts and design variations

(a) One design concept will be provided with up to three concept variations completed if required.

(b) A second design concept can be provided on request only if there have been no design variations requested on the first design concept. If a second design concept is requested only one concept variation is included.

All additional design variations and any further design concepts will be charged at the Standard Hourly Rate unless otherwise agreed in writing by both parties.

3.4. Design Concept Approval

When the design concept and any requested design variations are complete, The Client must notify 7thVision in writing that the design concept is approved. Any further design variations will be charged at the Standard Hourly Rate. It is much more time and cost effective to make any design variations before proceeding to the next stage of the website development.

No further work will be undertaken on the website without written design concept approval.

3.5. Website design and development does not include any Adobe Flash design or development, or animated GIF design or development unless otherwise agreed upon by both parties.

3.6. All content entered into the website must be proof read by The Client and any errors which require updates must be communicated to 7thVision forthwith in writing.

3.7. Content Resources

The Client must provide the web content resources, including text and photos. If suitable photos are not provided, 7thVision may look for stock photography which may incur an additional charge to The Client.

3.8. Post Agreement Changes

If changes are required to the website, the details of the changes must be submitted to 7thVision in writing. 7thVision will determine if the changes are covered by the scope of the original Agreement. If the changes are deemed to be outside of the scope by 7thVision then a quote will be provided to The Client for changes.

3.9. Content Ownership

The Client warrants that the Intellectual Property content provided by The Client to 7thVision is the unencumbered property of The Client.

3.10. At the time of launching The Client’s website, 7thVision will make the website compatible with versions of Google Chrome and Mozilla Firefox released in the previous year from when the site was launched.

3.11. The Client gives permission to 7thVision to access The Client’s Google Analytics account, or to set up a new Google Analytics account on The Client’s behalf.

4. GRAPHIC DESIGN

4.1. Number of Graphic Design Concepts and Design Variations

(a) Logo Design

(i) A minimum of three logo design concepts will be provided with up to three concept variations included on the selected logo design concept only.

(ii) An additional design concept can be provided on request only if there have been no design variations requested on any of the first design concepts. If an additional design concept is requested, only one concept variation is included.

(b) Other designs (including, but not limited to, brochures, flyers, business cards, letterheads etc.)

(i) One design concept will be provided with up to three concept variations included.

(ii) An additional design concept can be provided on request only if there have been no design variations requested on the first design concept. If a second design concept is requested only one concept variation is included.

Any further design variations and design concepts will be charged at the Standard Hourly Rate.

4.2. Design Concept Approval

When the design concept and any requested design variations are complete, The Client must notify 7thVision in writing that the design concept is approved. Any further design variations will be charged at the Standard Hourly Rate.

4.3. Content Supply and Approval

The Client is required to supply the content for the graphic design in final draft format.

All content entered into the design must be proof read by The Client and approved in writing by email.

4.4. Content Resources

The Client must provide the content resources, including text and photos. If suitable photos are not provided 7thVision may look for stock photography which may incur a small additional charge. 7thVision will quote The Client for the use of stock photography prior to purchasing the images.

5. PRINTING

5.1. 7thVision will provide The Client with a proof of the item to be printed which must be checked carefully by The Client, and approved in writing to 7thVision before 7thVision will commence the printing process. 7thVision will not be responsible or held liable under any circumstances for any errors in the printed item that appeared on the proof that was approved by The Client.

5.2. The Client warrants that the Intellectual Property of the content provided by The Client to 7thVision is the unencumbered property of The Client.

5.3. The Client acknowledges that the printed colours may vary from print run to print run and/or from job to job or from front to back. The Client also acknowledges that trimming of the printed item may vary up to 3mm.

5.4. The Client acknowledges that 7thVision cannot guarantee the delivery time of any printed material. All turnaround and delivery times quoted by 7thVision to The Client are estimates only, and although 7thVision will make every effort to meet the expected delivery time, under no circumstances is 7thVision liable for any late or overdue printing deliverables. In addition, delays or damage during shipping are the sole responsibility of the shipping supplier. The Force Majeure provision as hereinbefore defined applies to this clause 5.4 and generally. 7thVision is not liable for any damage sustained by The Client whether direct, indirect or consequential as a consequence of a Force Majeure event.

5.5. 7thVision reserves its right to request receipt of payment from The Client before sending the artwork to the printer.

6. SEARCH ENGINE OPTIMISATION (SEO) & OTHER ONLINE MARKETING SERVICES

6.1. The Client acknowledges and agrees that it is not possible for 7thVision to provide a specific ranking result on any search engine. Search engines have their own ranking algorithms which cannot be controlled by any third party.

6.2. The Client acknowledges and agrees that 7thVison cannot guarantee any increased website traffic or sales.

6.3. These services may require the content on The Client’s website to be changed.

7thVision is permitted to make changes without The Client’s direct approval.

6.4. 7thVision cannot warrant that The Client’s website rankings will not go down as a result of the online marketing services provided by 7thVision and under no circumstances is 7thVision liable for any loss of business income as a result of any drop in The Client’s website rankings. While a drop in rankings is unlikely, 7thVision does not control the search engine algorithms, and cannot predict future changes to these algorithms.

6.5. The Client acknowledges and agrees that 7thVision reserves the right to outsource SEO work to subcontractors or affiliates. If this does occur, 7thVision may be required to pass on The Client’s website login information, and any other relevant login details.

7. GOOGLE ADWORDS MANAGEMENT (STANDALONE OR BUNDLED WITH OTHER ONLINE MARKETING SERVICES)

7.1. The Client gives permission to 7thVision to access The Client’s Google AdWords account, to add The Client’s account to 7thVision’s Google Client Centre account, or to set up a new Google AdWords account on The Client’s behalf.

7.2. All click fees charged by Google will be paid to Google directly by The Client.

7.3. On termination of this Agreement, 7thVision reserves the right to remove or delete any of the AdGroups and associated ads and keywords from The Client’s Google AdWords Account that were created by 7thVision.

7.4. The Client acknowledges and agrees that 7thVision may disable The Client’s Google AdWords account if The Client’s account with 7thVision becomes overdue.

7.5. The Client acknowledges and agrees that 7thVision will not be held liable for any losses incurred by The Client due to incorrect information or misspellings in the ads.

7.6. The Client acknowledges and agrees that 7thVision will not be held liable for any losses incurred by The Client due to unauthorised third parties making changes to their Google AdWords account.

7.7. The monthly management items outlined in 7thVision’s AdWords management packages may not be completed every month. The monthly management items are a guide only and indicate what work is done in an average month. Some monthly management items may not be required each month.

7.8. The Client acknowledges and agrees that 7thVision reserves the right to outsource AdWords management work to subcontractors or affiliates. If this does occur, 7thVision may be required to pass on The Client’s Google AdWords account login information, and any other relevant login details.

7.9. The Client acknowledges and agrees that 7thVision will not be held responsible if The Client’s Google AdWords account is cancelled by Google for any reason.

8. DOMAIN NAMES

8.1. 7thVision is a domain name reseller, and therefore The Client will be bound by the terms and conditions of the upstream domain name registrar. It is the responsibility of The Client to seek out these terms and conditions if they wish to do so.

8.2. The Client acknowledges and agrees that 7thVision will not be held liable for losses incurred by The Client due to the expiration of domain names under any circumstances.

8.3. It is the responsibility of The Client to renew the domain name before the expiration date. 7thVision will endeavour to remind The Client of upcoming expiration dates, however it is not the responsibility of 7thVision to do so.

8.4. 7thVision will not be held liable for any losses incurred by The Client due to unauthorised third parties making changes to domain name settings.

8.5. It is the responsibility of The Client to check for correct spelling when registering a domain name, or when advising 7thVision to register a domain name on their behalf.

8.6. 7thVision reserves the right to not register or renew a domain name for The Client until payment has been received.

8.7. 7thVision reserves the right to change domain name pricing without notice.

9. WEBSITE HOSTING AND EMAIL HOSTING

9.1. 7thVision makes every effort to maintain the highest level of server uptime. However, the server may go down from time to time and there may be interruptions. 7thVision is not liable for any errors or interruption in service, whether within or outside of 7thVision’s reasonable control. 7thVision shall remain free of liability from the following, including but not limited to, the loss of data, loss of information security, loss of business or sales caused by server downtime (including loss of sales through any shopping cart module), and loss of emails.

9.2. The website and email hosting service is provided on an “as is, as available” basis. 7thVision gives no warranty, express or implied, for the website and email hosting services provided.

9.3. 7thVision will not be held liable for reimbursement for losses of income due to the disruption of the website and email hosting service by 7thVision or its providers, beyond the fees paid by The Client to 7thVision for these services.

9.4. While 7thVision shall make every reasonable effort to protect data stored on its servers, 7thVision is not responsible for The Client’s data, files or directories residing on the servers. It is The Client’s responsibility to make backups of any data they feel necessary to protect from loss.

9.5. The website and email hosting service is provided by 7thVision from its data centres in Australia and overseas. 7thVision will determine in its absolute discretion from time to time the data centre location from which the website and email hosting service is provided. 7thVision reserves the right to migrate The Client’s website and email to a different server for any reason. The Client acknowledges that there may be some downtime during this migration process.

9.6. The Client agrees to only use the website and email hosting service for lawful purposes. This includes (but is not limited to) material that is obscene, threatening, harassing, or violates copyright or intellectual property laws in any way.

9.7. The Client agrees to indemnify and hold harmless 7thVision in any legal action which arises as a result of use of the website and email hosting service, without limitation or exception.

9.8. The Client agrees not to maliciously or intentionally interfere with the proper operation of the website and email hosting service, or any of 7thVision’s related systems or services, including but not limited to defeating identification procedures, obtaining access beyond that which The Client is authorised for, and impairing the availability, reliability, or quality of service for other clients. The Client further agrees not to interfere with the proper operation of other systems reachable through the Internet, including any attempts at unauthorised access.

9.9. The Client agrees that the security of their account is first and foremost their own responsibility. The Client further agrees that if they believe the security of their account has been compromised in any way, The Client will notify 7thVision immediately.

9.10. The Client agrees not to transmit unsolicited or prohibited advertising through email or through any of 7thVision’s other services. The Client specifically agrees that the use of 7thVision’s services for unsolicited mass mailings or postings (commonly known as “Spam”) will cause The Client’s services to be terminated immediately and without warning, and that The Client will be held legally responsible for any and all damages to 7thVision , both monetary and in reputation.

9.11. To use 7thVison’s content management system, The Client’s website must be hosted on 7thVision’s servers. If The Client would like to move their website to another server, then a HTML version of the website can be provided for a fee of $160 plus GST. The Client acknowledges that by doing this they may lose the functionality of the content management system and other features and functionality of the website.

9.12. The Client acknowledges that any web forms must be constructed and implemented by 7thVision using 7thVision’s content management or form system, and that there will be an additional charge for this even if it has not been included in the Order Form.

9.13. The Client will not be granted direct FTP access or MySQL database access for their website hosting account. If access is requested then this request need to be lodged to 7thVision in writing.

9.14. Hosting packages include the following (anything outside these limits will be custom quoted):

Hosting Package Information

9.15. To terminate an email hosting facility The Client must complete a Hosting Termination Form. Fees applicable to website and email hosting will continue to apply until 7thVision is in receipt of a Hosting Termination Form.

9.16. For websites that are not hosted by 7thVision, The Client acknowledges that 7thVision has no control over the quality of the hosting service provided by the hosting company (whether recommended by 7thVision or not), and is not responsible for any negative outcomes associated with the hosting service (including but not limited to loss of data, loss of business, website downtime, etc). It is the responsibility of The Client to ensure bills issued by the hosting company are paid on time to prevent loss of data and/or disruption to their hosting service.

10. 7THVISION SUPPORT SERVICE PACKAGES

10.1. As part of the 7thVision support service packages, 7thVision performs ongoing maintenance to The Client’s website.

10.2. While 7thVision will make every effort to minimise issues that maintenance may cause, there is always the possibility that website problems may occur when maintenance is performed. 7thVision is not liable for any problems that may occur during maintenance (including, but not limited to security problems, technical problems, visual problems, loss of data or loss of business).

10.3. While performing regular maintenance can help to reduce the risk of website problems (such as security problems, technical problems, etc), there is still a chance these problems could occur.

10.4. If 7thVision is not able to resolve any problems that may occur on the website, it may be necessary for The Client to contract a specialist to help with specific problems. Depending on the problem, 7thVision may be able to provide a recommendation of a suitable specialist.

10.5. While the Support Packages process does include a regular backup facility, 7thVision recommends that The Client also keep their own set of regular backups.

10.6. If more than one hour is required by 7thVision to solve a complicated issue, additional charges may be applied. 7thVision will endeavour to inform The Client of additional charges before commencing work on the issue, however if the issue is urgent 7thVision has the right to carry out the additional works and invoice The Client for the time spent at the Standard Hourly Rate.

11. FEES – HOW CALCULATED

(a) 7thVision will charge its time on the basis of a fifteen minute unit with one unit applying to any time of fifteen minutes or part thereof. Each unit is charged as one quarter of the Standard Hourly Rate.

(b) 7thVision may vary these rates on thirty days notice.

12. TERMINATION OF THIS AGREEMENT

12.1. The Client may terminate this Agreement upon giving fourteen days notice in writing in that regard to 7thVision. Such termination shall take effect upon the expiry of the said notice period and upon payment of any and all outstanding fees payable by The Client to 7thVision.

12.2. 7thVision may at its option terminate this Agreement and cease work on behalf of The Client if The Client:-

(a) Breaches any one or more terms of this Agreement and fails to rectify such breach within fourteen days of 7thVision requiring rectification of such breach;

(b) Requires 7thVision to act unlawfully or unethically;

(c) Fails to give 7thVision adequate and ongoing instructions;

(d) If the project period stretches out beyond a period of (a) 6 months, or (b) 12 months, from the date of the signed Agreement and/or the payment of the project deposit, and the delay is the result of the client not providing 7thVision with enough ongoing instructions or reasonable content (images and text copy) to effectively progress and/or complete the project.

(e) Fails to pay any accounts or fails to provide any advance payment required;

(f) Becomes bankrupt; or

(g) If a corporate client enters into administration or liquidation.

12.3. 7thVision will give The Client not less than seven days notice of its intentions to terminate the Agreement with the exception of:- 

(a) 12.2 (d) – where if there has been an extended period (over 90 days) of no contact or response from the client then no termination notice is required by 7thVision.  

12.4. If this agreement is terminated by 7thVision or The Client, 7thVision is entitled to all outstanding fees and costs up to the termination date and will be entitled to retain possession of The Client’s files or other property until payment of those fees and costs. 7thVision reserves the right in its absolute discretion to discontinue the services to The Client in such circumstances without reference to The Client.

13. QUALIFIED ADVICE

The Client acknowledges that from time to time certain advice may be given by 7thVision to The Client which may be based on assumptions and/or qualifications which may be conditional upon information not yet available or which may be based on future events (“Qualifications”).

The Client agrees that if it acts on part of an advice that contains Qualifications 7thVision will not be held liable in relation to that part of the advice, which is subject to the Qualifications in circumstances where further information is not available or actual events are not contemplated by or included in the Qualifications that make that part of 7thVision’s advice incorrect.

14. THE CLIENT’S RECORDS

On completion of any work, 7thVision may store The Client’s records relating to the work for such period as 7thVision, in its absolute discretion, shall deem fit upon 7thVision’s present business premises or in such offsite storage facility as 7thVision may in its absolute discretion determine.

15. CLIENT RESPONSIBLE FOR GST

The Client acknowledges that any liability imposed upon 7thVision pursuant to A New Tax System (Goods and Services Tax) Act 1999 in respect of taxable supplies will be passed on by 7thVision to The Client and included in accounts and shall be payable by The Client.

16. JURISDICTION

This Agreement is governed by the laws of the State of Queensland.

17. INTELLECTUAL PROPERTY

All documentation and software provided to The Client (including but not limited to Order Forms, proposal forms, email setup forms, web design briefs), remain the intellectual property of 7thVision.

18. LIMITATION OF LIABILITY

18.1. The Client shall have no claim against 7thVision at all times, subject to the terms of this Agreement, and indemnifies 7thVision, its officers, employees, agents and contractors from any loss (including legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any claim, suit, demand, action or proceeding by any person against any of those indemnified where such loss or liability was caused by any wilful, unlawful or negligent act or omission of 7thVision, its employees, agents or subcontractors in connection with this Agreement.

18.2. If any hosting provided by 7thVision proves to be deficient or defective in any manner then the liability of 7thVision shall be limited to providing a refund of monies paid for hosting during that period that such deficiency or defect existed.

19. SEVERABILITY

Each provision of this contract and each part thereof shall be read and construed as a separate and severable provision or part. If any provision or part thereof is void or otherwise unenforceable for any reason then that provision or part shall be severed and the remainder shall be read and construed as if the severed part had not existed.

20. ENTIRE AGREEMENT

20.1. This contract constitutes the entire Agreement between the parties and supersedes all communications, negotiations, arrangements and Agreements, whether oral or in writing, manual or electronic between the parties.

20.2. 7thVision may vary these terms, including pricing for any service, or the terms of the operation of the service, at any time by updating this document on 7thVision’s website, or by emailing or in writing. All changes will become effective upon publication of the changes.

21. NOTICES

Any statement, demand or notice to either party to this Agreement may be validly served by being delivered or sent by registered post to the last known address of the addressee or sent by email transmission to the address of the addressee.