Mish Digital Terms & Conditions
The following terms and conditions (“Terms”) apply to all Agreements entered into with Mish Digital (ABN 96 693 568 513), and together with the “Project Specifications” constitute a legally binding agreement between you (the “Client”) and Mish Digital.
The “Services” include the provision of website design and development services, optimisation services, digital marketing and design services, online advertising services and/or other services set out in your Project Specifications.
Definitions
The following definitions apply to this agreement (unless the context otherwise requires):
‘Agreement’ means these Terms, the Project Specifications and any documents, schedules or addendums referenced or incorporated into this agreement;
‘Commencement Date’ means the date the Project Specifications is signed by the Authorised Representative of the Client, unless otherwise agreed;
‘Existing IPR’ means a party’s Intellectual Property Rights that existed prior to, or are created independently of, this Agreement;
‘Project Specifications’ means the document titled the “Project Specifications” incorporating these Terms, that sets out the Services, Fees and Special Conditions and/or other details of the Client’s engagement with Mish Digital;
‘Client Content’ means all text, data, graphics files, videos and sound files, and other materials contained in the website or as otherwise owned or created by the Client in whatever form that information may exist and whether entered into, stored in, generated by or processed through software or equipment by or on behalf of the Client;
‘Fee’ means the money payable to Mish Digital for the Services and any incidental costs as set out in Project Specifications;
‘Intellectual Property Rights’ or ‘IPR’ means all statutory and other proprietary rights in respect of copyright and neighbouring rights (including but not limited to rights in relation to software), all rights in relation to inventions (including registered and not yet registered patent rights), registered and unregistered trademarks, designs, the right to have Confidential Information (including trade secrets and know-how) kept confidential, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields;
‘Material’ means information, documents, equipment, software, goods, computer files, designs, transferable knowhow and data, stored by any means, whether or not in material form, and includes any Intellectual Property Rights in such Material;
‘Services’ means the services described in the Service Schedule;
‘Services Material’ means any Material that is created during the performance of the Services but does not include the Client Content;
‘Special Conditions’ means the special conditions set out in the Project Specifications (if any).
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Term and Extension
1.1 This Agreement will commence on the Commencement Date and continue until the Completion Date (the “Term”), unless terminated earlier as per clause 13.
1.2 Where applicable, the parties may choose to extend the Term for as agreed by the parties in writing (including moving to a monthly agreement). -
Provision of the Services
2.1 During the Term, Mish Digital will:
a) provide the Services to the Client with all due care and skill and in a professional manner, following best practices and generally-accepted industry standards;
b) keep the Client’s nominated contact(s) informed of the progress of the Services; and
c) provide the Client with periodic accounts of Services rendered.
2.2 The manner of performance of the Services will be at all times within the judgement and discretion of Mish Digital. -
Client Obligations
3.1 The Client warrants that:
a) it owns the rights or has the right to use the Client Content; as well as any software, hardware, systems, IP addresses, domain names and other items in the Clients’ ICT systems and infrastructure (“Infrastructure”);
b) its Infrastructure is in good working order and that it has sole responsibility for the availability and integrity of the Infrastructure; and
c) has put in place sufficient internal controls to ensure the accuracy and integrity of the Client Content.
3.2 Mish Digital does not take any responsibility for the Client Content and it is the Client’s sole responsibility to ensure the integrity of the Client Content.
3.3 During the term of this Agreement, the Client must:
a) provide all necessary information to Mish Digital upon request;
b) provide access to systems and Infrastructure including relevant passwords and/or data required by Mish Digital in order to perform the Services;
c) regularly backup its data, Client Content and/or website and use appropriate and up-to-date virus detection software and take all reasonable precautions to safeguard its business against loss or disruption.
d) provide other such access, documents, information or data as Mish Digital reasonably requires in order to perform the Services; and
e) observe the terms and conditions of this Agreement, including any Special Conditions set out in the Service Schedule. -
Fee and Payment
4.1 The Fee and Payment Terms for the Services are set out in the Service Schedule.
4.2 Currently, GST is not applicable to services provided to the Client as per the Service Schedule.
4.3 Any expenses incurred as a result of providing the Services will be on-charged at cost to the Client.
4.4 If there is a change in the scope, timing or order of the Services, then Mish Digital will be entitled to additional payment of any amount which is reasonable in the circumstances. -
Services
5A. Website Design and Development
5A.1 Website design and development services are provided as per the Project Specifications, which include an approximate timing schedule. Failure to provide content or other items within the specified time will delay the development and roll-out of the website.
5A.2 If the Client discontinues the development of the website at any stage prior to completion, the Client is responsible for any expenses already incurred and Fees for Services already rendered, as per clause 13.3.
5A.3 After the launch of a website, the Client is responsible for backing up their website on a regular basis, unless the website hosting is managed by Mish Digital. In the event that the Client’s website goes down and it is hosted on a website server independent of an ongoing site management contract with Mish Digital, we are not responsible for bringing the website back online, nor liable for any down-time.
5B. Website Content Management
5B.1 On-going or ad hoc website management including content updates is charged at the hourly rates set out in the Services Schedule with a one (1) hour minimum and has a seven (7) business day turnaround time.
5C. Search Engine Optimisation (SEO)
5C.1 Mish Digital will undertake the optimisation of the Client’s website as per industry best practices.
5C.2 Although Mish Digital is an SEO specialist, the Client agrees and understands that SEO does not provide any guaranteed results and that results can vary based on the Client’s website history, industry and other factors.
5C.3 Any alterations of SEO keywords by the Client after the initial selection of the keywords will incur additional fees.
5C.4 The purpose of Search Engine Optimisation is to attempt to improve your position (ranking) in organic search results when potential customers use search engines (eg. Google) to search for businesses in your industry. It does not guarantee increased website traffic, improved interaction or time spent on your website, nor increased custom to your business.
5D. Upload of Content to Client Websites
5D.1 Mish Digital will curate optimised content and upload it and relevant tags to the Client’s existing website, provided the CMS is in a format we are familiar with. If a web page has been designed using languages that we are not skilled in, uploading of content will be the responsibility of the Client and/or their webmaster.
5D.2 During the provision of the Services, the Client may provide Mish Digital with access to make changes to their existing website. However, Mish Digital accepts no liability for any errors which may occur in these updates. Although full care is taken when making such website changes, the Client is expected to regularly back up its data in accordance with clause 3.3.
5E. Email Setup
5E.1 Mish Digital will assist the Client in the setup of email addresses via a preferred services provider. Instructions will be provided on the setup of the email access on your desktop and mobile devices.
5E.2 Any further support regarding the setup or ongoing usage of your email will be provided via the preferred services provider. -
Service Exclusions
6.1 Unless otherwise agreed in writing, Mish Digital accepts no liability for, and is not required to provide Services under this Agreement if it relates to:
a) rectification of lost or corrupted data arising for any reason other than Mish Digital’s own negligence;
b) support rendered more difficult because of any changes, alterations, additions, modifications or variations to the Services;
c) restoration of data files following failure to backup in accordance with Mish Digital’s recommended procedures;
d) diagnosis and/or rectification of problems not associated with the Services;
e) damage due to external causes outside Mish Digital’s control including accident, disaster, electrical fault, power surges, lightning, internet connection fault, vandalism or burglary;
f) the Client not following Mish Digital or the a third party (such as Google) written instructions for the Services;
6.2 Mish Digital may choose to provide the above services at an additional cost to the Client (which will be invoiced separately). -
Confidentiality
7.1 Each party must at all times:
a) maintain the secrecy and confidentiality of any Confidential Information of the other party;
b) not divulge or disclose to any other person, firm, corporation or entity any Confidential Information of the other party; and
c) refrain from copying, transmitting, retaining or removing any Confidential Information of the other party, or attempting to do the same;
7.2 All processes and documentation used by Mish Digital in providing the Services are classified as Mish Digital’s Confidential Information. Disclosure to third parties of this Confidential Information is strictly prohibited unless Mish Digital provides its express written consent (which may be withheld in its absolute discretion). -
Privacy
8.1 The Client agrees to comply with the Privacy Act 1988 in its dealings with Mish Digital. In particular, the Client warrants that it has made all necessary disclosures and obtained all consents required under the Act in respect of personal information given to or accessed by Mish Digital in undertaking this Agreement. The Client indemnifies Mish Digital from and against all costs, losses, damages, and claims arising from the Client’s breach of this warranty.
8.2 By entering into this Agreement, the Client confirms that it has read the Mish Digital Privacy Policy which can be found at www.mishdigital.com/privacy. -
Ownership of Data and Services Material
9.1 No Existing IPR is transferred by virtue of this Agreement. Each party hereby grants to the other a royalty-free, non-exclusive, non-transferable license to use its Existing IPR for the purposes of this Agreement.
9.2 All IPR in the Services Material created by Mish Digital remains the property of Mish Digital until final payment of the Fee, at which time it will become the unrestricted property of the Client. For sake of clarity, this naturally excludes any third-party owned Templates, Stock Images, Software or otherwise that is not directly created by Mish Digital. -
Security
10.1 Notwithstanding the security precautions taken against disclosure of information, there are certain conditions that exist on the Internet generally which are outside Mish Digital’s control and could result in a breach of security. The Client hereby expressly waives any claim against Mish Digital arising out of the loss of data through corruption, piracy, and breach of security or for any other reason. -
Warranties and Indemnities
11.1 Nothing in this Agreement is to be read as excluding, restricting or modifying the application of any legislation which by law cannot be excluded, restricted or modified.
11.2 Any liability Mish Digital may have for any failure to comply with a consumer guarantee imposed by the Australia Consumer Law, or any condition or warranty implied into this Agreement by legislation that cannot be excluded is not excluded but to the extent permitted by law is limited to (at Mish Digital’s discretion) in the case of the Services:
a) re-supplying the Services;
b) paying the cost of re-supplying the Services.
11.3 To the extent that Mish Digital’s liability cannot be or is not otherwise limited according to this clause 11, under no circumstances will Mish Digital’s total aggregate liability under this Agreement, whether based upon warranty, contract, statute, tort (including negligence) or otherwise, exceed the actual amounts paid to Mish Digital by the Client under this Agreement.
11.4 The Client assumes sole responsibility for the use of the Services in its business operations and hereby indemnifies (and keeps indemnified) Mish Digital, its officers, employees, agents, and contractors from and against all liability, losses, actions, claims (including third party claims), demands, proceedings, awards, settlements, compensation, damages, costs and expenses, directly or indirectly arising from, or relating to:
a) the Client’s use of, or reliance on, any part of the Services and/or Services Material; or
b) any other person’s use of, or reliance on, any part of the Services and/or Services Material which were provided to that person directly or indirectly by the Client.
c) a breach or failure to perform by the Client of its obligations under this Agreement; or
d) any wilful, unlawful or negligent act or omission of the Client.
11.5 The Client’s liability under clause 11.4 will be reduced proportionately to the extent that Mish Digital’s negligent act or omission contributed to that loss or liability.
11.6 For the avoidance of doubt and to the fullest extent permitted by law, Mish Digital is not liable for:
a) any special, indirect or consequential loss including (but not limited to) loss of opportunity and/or loss of profits, savings, clients, contracts, revenue, interest or goodwill, suffered or incurred by the Client as a result of its use of the Services and/or Services Material under this Agreement; or
b) Any loss or damage suffered by the Client or any third party due to the Client’s negligent or improper use or of the Services and/or Services Material.
11.7 Mish Digital does not represent, warrant, or guarantee that the Clients URLs will achieve a favourable position, or any position. No organisation or person can control or guarantee which, if any, search engines will accept the submission of a website. -
Disputes
12.1 The parties must work in good faith to resolve any dispute between them arising from this Agreement.
12.2 Any dispute will initially be referred to the nominated representatives of each party for resolution. If such dispute is not resolved within 7 days, the dispute will be referred to a meeting of the Director/CEO or authorised delegate or equivalent of each party.
12.3 If the dispute remains unresolved after a period of 60 days after the second meeting referred to in clause 12.2, the parties will agree upon an appropriate mediator. Agreement as to the allocation of costs will be determined through mediation.
12.4 A party may not commence court proceedings until 30 days after referral to a mediator pursuant to clause 12.3, with the exception of seeking urgent interlocutory relief through court’s of appropriate jurisdiction. -
Termination
13.1 Each party may terminate this agreement by giving 30 days’ written notice to the other party.
13.2 Without limiting any other rights or remedies Mish Digital may have against the Client arising out of, or in connection with, this Agreement, Mish Digital may terminate the Agreement with immediate effect if the Client:
a) Commits a serious breach of this Agreement including (but not limited to) posting offensive material or material promoting or suggestive of illegal or criminal activity;
b) Breaches a provision of this Agreement and fails to remedy the breach within 30 days of receiving notice to do so; or
c) Becomes insolvent or enters into liquidation or receivership or makes a composition or arrangement with its creditors generally or takes advantage of any statutory relief for insolvent debtors.
13.3 Termination of this Agreement will not affect the Client’s liability to pay Fees for Services already rendered.
13.4 The provisions of clauses 7, 8, 9, 10, 11 and this clause 13.4 survives termination or expiration of this Agreement. -
Independent Contractor
14.1 Mish Digital is an independent contractor and not an employee or agent of the Client.
14.2 The parties to this Agreement will not be or be deemed to be in any partnership, collaboration or joint venture and neither party will hold itself out as being in any way a partner or joint venturer of the other party and neither party will pledge the credit or warrant the authority of the other party.