These terms and conditions ("Terms") apply to all consultancy services and any goods provided by Flint Interactive PTY Limited, ACN: 127 159 620 of 17 Marine Pde, Abbotsford, Victoria 3067 to the CUSTOMER referred to in a Quotation or Project Schedule issued by Flint Interactive or for whom Flint Interactive provides DELIVERABLES.
Flint Interactive will provide consulting services to the Customer in relation to the creation or modification of software, design, one or more websites, or other creative artistic work. The specific nature of the services that Flint Interactive will provide will be as agreed in writing by Flint Interactive and the Customer from time to time and contained in a written Project Schedule (the "Services"). Flint Interactive may also supply the Customer with Products, as ordered by Customer and agreed by Flint Interactive from time to time and specified in a Project Schedule. The term "Products" means any hardware and/or third party software, design, one or more websites, or other creative artistic work provided to the Customer by or on behalf of Flint Interactive pursuant to these Terms. The term "Deliverables" refers collectively to Services and Products and the work products (including software, design, one or more websites, or other creative artistic work) of such Services.
These Terms and any written Project Schedule set out the entire agreement between Flint Interactive and the Customer in relation to the supply by Flint Interactive of Deliverables. They supersede any document that the Customer may issue (such as a purchase order), and all prior agreements, negotiations, communications and representations by the parties.
2. Quotations and Ordering
If the Customer requests it, Flint Interactive may issue a quotation in respect of any Deliverable proposed to be provided under these Terms. The quotation remains open for acceptance for up to 21days from the date of issue (or such other time as specified in the quotation). Flint Interactive may withdraw a quotation at any time. The Customer can accept a Quotation by signing a copy of it and sending to Flint Interactive, or if Flint Interactive agrees to it, by e-mail. If the Customer accepts Flint Interactive's quotation, Flint Interactive will issue a Project Schedule setting out the following details:
(a) the nature of the Deliverables to be provided pursuant to the Project Schedule;
(b) any specifications for the Deliverables;
(c) a project plan for the preparation of those specifications and/or the Deliverables;
(d) the fee payable to Flint Interactive for the Deliverables (if the Project Schedule states that the price for the Deliverables is fixed) or a method for calculating that price, and the payment schedule for the Deliverables;
(e) the Facilities to be made available by the Customer (including any Means of Access required an d any Restrictions on Access);
(f) such other items as Flint Interactive considers relevant for that Project Schedule; and
(g) the deposit amount to be paid in advance on account of the Deliverables.
Once the Customer accepts the Project Schedule and pays any deposit amount referred to in paragraph(g), Flint Interactive will begin providing the Deliverables in accordance with the Project Schedule. The Customer can accept a Project Schedule by signing a copy of it and sending it to Flint Interactive, or by e-mail. To the extent of an inconsistency between these Terms and a Project Schedule, the Project Schedule prevails.
Any quotation that Flint Interactive gives (whether before this Agreement was signed) is based on the information that was provided to Flint Interactive at the time of quotation. If that information is later found to be inaccurate or there is a change to the nature or scope of the Deliverables or if circumstances change, Flint Interactive may charge an additional amount calculated on a time and materials basis at Flint Interactive's standard scale of charges.
3. Reporting, Means of Access and Facilities
The Customer shall make an employee (as specified in the Project Schedule) available to meet with Flint Interactive when Flint Interactive reasonably requires it for the purposes of discussing the status of the Deliverables.
Flint Interactive may provide the Services remotely and is not required to attend the Customer's premises. The Customer authorises Flint Interactive to access the Customer's computing facilities referred to in the Project Schedule (the "Facilities") using the Means of Access and subject to any Restrictions on Access set out in the Project Schedule, for the purposes of providing the Deliverables. Flint Interactive will not use the Means of Access to access the Facilities for any purpose other than in accordance with these Terms. However, Flint Interactive may gain remote access to the Facilities for lawful purposes using any publicly available means (such as the World Wide Web) which do not require special authorisation.
If stated in a Project Schedule or project plan, or if Flint Interactive requests it, Customer will provide Flint Interactive with reasonable assistance and facilities free of charge (including the Means of Access and any other Items referred to in the Project Schedule or a project plan, office facilities, and liaison with the necessary officers and employees of the Customer) in order to assist Flint Interactive to provide the Deliverables.
4. Consulting Rates, and Other Expenses
Unless the price for the Deliverables is stated in a Project Schedule to be fixed, Flint Interactive is entitled to charge the Customer for Deliverables on a time and materials basis at Flint Interactive's standard scale of charges from time to time. The Customer will also pay Flint Interactive any licensing or other fee that Flint Interactive is required to pay to obtain or maintain a licence for the Customer for any third party software, design, one or more websites, or other creative artistic work) together with Flint Interactive's own charge that it levies for handling and/or obtaining any relevant sub-licences.
If Flint Interactive is required to attend the Customer's or any other premises for any reason pursuant to these Terms, the Customer will reimburse Flint Interactive for reasonable transport and/or accommodation expenses incurred by Flint Interactive in doing so. However this does not include transport or accommodation expenses where those premises are located within 25km of the Melbourne Central Business District. The Customer will also indemnify Flint Interactive and keep it indemnified for all expenses Flint Interactive may incur on the Customer's behalf or in carrying out its obligations under these Terms.
If we arrange third party suppliers to provide goods or services to you that are ancillary to the Deliverables (for instance, web hosting, or third party printing), we are doing so as your agent. You are primarily responsible for any ongoing fees or charges and other responsibilities (such as account management) direct to those suppliers, and you will be bound by their terms and conditions.
You will indemnify us for all expenses we incur on your behalf or in carrying out our obligations under these Terms (including freight, handling, insurance, prints, materials, proofs and media and any contracts that we enter into as your agent under clause 4.3).
5. Invoicing and Payment
Flint Interactive may invoice the Customer on an interim basis for progress payments, including for such expenses as the Customer is required to reimburse Flint Interactive. Flint Interactive's invoices will contain such information and detail as the Customer reasonably requires to permit the Customer to account for the Deliverables.
Unless otherwise expressly stated, all amounts specified in a quotation or Project Schedule represent the value of the Taxable Supply, and do not include GST. Flint Interactive will provide the Customer with a Tax Invoice in a form that complies with the law relating to the imposition of GST.
Flint Interactive's invoices are payable within 14days of the invoice date, regardless of whether or not the Customer has received payment from any other party in respect of any Deliverables. Payment is to be made by direct debit to an account nominated in writing by Flint Interactive (and must confirm to Flint Interactive in writing when it has done so). If the Customer does not pay an invoice by that time, then without prejudice to Flint Interactive's rights: (a) interest is also payable on the outstanding amount, to be calculated at the prescribed rate under the Victorian Penalty Interest Rates Act 1983; and (b) by written notice to the Customer, Flint Interactive can suspend or terminate any licence granted to the Customer to use the Deliverable in respect of which payment is outstanding, and may recover or remove from the Facilities any Deliverables for which payment has not been made.
If the Customer breaches any obligation under this document (including clause5.3) then without prejudice to Flint Interactive's rights, Flint Interactive may recover from the Customer all reasonable expenses (including legal costs) incurred by Flint Interactive in the enforcement of that obligation.
Each party acknowledges the confidentiality of the other party's confidential information. Neither party will gain a right or interest in the other party's confidential information, other than for the purposes contemplated by these Terms. Each party must keep all of the other party's confidential information confidential, and only use it for the purposes of fulfilling its obligations under these Terms. However this obligation will not apply to information which: (a)was in the public domain when it was provided to a party, or later enters the public domain, through no fault of the party; or (b)the party is obliged by law to disclose, provided that it has first advised the other party of this obligation.
7. Intellectual Property
Except to the extent agreed in writing by Flint Interactive, all intellectual property rights relating to any additional software, specifically the site Content Management System (CMS) provided to the Customer by or on behalf of Flint Interactive pursuant to these Terms (the “Intellectual Property”) remains the property of Flint Interactive, or where applicable Flint Interactive’s licensors. Flint Interactive may display its own copyright and intellectual property notices on any Products and the Customer must not, and must ensure that all third parties do not, remove, obscure, deface or alter such copyright and intellectual property notices.
Upon payment in full for the Deliverables, Flint Interactive grants the Customer a non-exclusive and non-transferable perpetual licence to use the Intellectual Property for the Customer's own business purposes or for sub-licensing to the Customer's own client (each as specified in the relevant Project Schedule), and in the case of the third party software will obtain a sub-licence in favour of the Customer in similar terms. In relation to third party software, the Customer will be bound by the third party licensor's licence terms, and if the third party licensor requires it, the Customer will execute a written licence agreement with that party. The licences granted under these Terms will also permit the Customer to copy the Intellectual Property for the purposes of staff and subcontractor education and system backups. However, the Customer must not copy or use any of the Intellectual Property for any other purposes, or do or permit any act to be done, that infringes Flint Interactive's (or its licensors') intellectual property rights. If the Customer intends to sub-license the Deliverables to its own client, it may only do so if Flint Interactive consents to it, and even if Flint Interactive consents to it, the Customer must ensure that any sub-licence agreement with that client contains the same protections in respect of Flint Interactive's confidential information and the Intellectual Property, and the same limitations and exclusions of Flint Interactive's liability, as set out in this document. If despite this provision, the Customer or any other party on the Customer's behalf makes any amendment, adaptation or alteration to such Intellectual Property (or any part of it), or creates a derivative work based on any part of the Intellectual Property (collectively "Derivatives"), ownership of the Derivatives will automatically vest in Flint Interactive, and the Customer assigns all future copyright and other intellectual property rights in the Derivatives to Flint Interactive. If Flint Interactive requests in, the Customer will sign all documents and do all things required to better evidence that assignment.
The Customer must not decompile, disassemble, decrypt, extract or otherwise reverse engineer any part of any software that is provided to the Customer pursuant to these Terms without Flint Interactive's prior written consent.
The Customer must hold any software, design, one or more websites, or other creative artistic work (in source and/or in object code) and other materials provided by or on behalf of Flint Interactive confidential. The Customer must not disclose any of those materials to any third party without Flint Interactive's prior written consent. The Customer must also take all reasonable steps within its power to protect the Intellectual Property from unauthorised disclosure or use.
The Customer will indemnify Flint Interactive fully against any loss, liability, cost or expense that Flint Interactive suffers or incurs (including liability to any other party) as a result of the Customer's (or if applicable, the Customer's client's) breach of this clause7.
Flint Interactive warrants to the Customer that Flint Interactive has the right to grant the licences referred to in these Terms in Australia. On becoming aware of any claim or allegation by a third party against the Customer, alleging that the Customer's authorised use of the Deliverables in Australia infringes the intellectual property rights of that third party, the Customer must:
(a) promptly tell Flint Interactive in writing, giving full particulars of the infringement or alleged infringement;
(b) give Flint Interactive the option to conduct the defence of that claim, including negotiations for settlement or compromise prior to or after the institution of legal proceedings, and give Flint Interactive reasonable assistance in conducting the defence of that claim;
(c) permit Flint Interactive to modify the Deliverable or replace components or parts of components, to render the Deliverable non-infringing; and
(d) authorise Flint Interactive (or its licensors) to obtain for the Customer's benefit the authority to continue using the Deliverable.
If an independent tribunal of fact or law determines, or Flint Interactive agrees with the other parties to the dispute that an infringement of third party intellectual property rights has occurred, Flint Interactive will at its option:
(e) take reasonable steps to obtain for the Customer the right to continue using the Deliverable; or
(f) modify the Deliverable in order to avoid continuing infringement.
If the solutions in either of earlier two paragraphs(e) or (f) cannot be achieved using reasonable commercial efforts, Flint Interactive may terminate the licence under these Terms (or the relevant part of it) by written notice to the Customer. However Flint Interactive has no liability under this clause7.4 with respect to any claim based upon:
(g) the combination of the Deliverable with other products or software, design, one or more websites, or other creative artistic work that Flint Interactive did not supply to the Customer for use with the Deliverable;
(h) any addition to or modification to the Deliverable that Flint Interactive did not create or supply;
(i) use of a superseded release or version of a Deliverable;
(j) any use of the Deliverable that is not in accordance with its documentation, these Terms or Flint Interactive's written instructions; or
(k) any aspect of the or any third party's systems or software, design, one or more websites, or other creative artistic work.
This clause7.4 sets out all of Flint Interactive's obligations, and the Customer's only remedies in respect of any claim that the Customer's authorised use of a Deliverable infringes the intellectual property rights of any party.
Flint Interactive warrants that any services that it provides as part of the Services will be provided with a reasonable level of care and skill, using appropriately skilled personnel. In relation to Products, Flint Interactive will endeavour to pass to the Customer the benefit of any warranties given by their manufacturers or licensors.
The Customer must ensure that the written specifications for any Deliverable (whether in the Project Schedule or prepared pursuant to a project plan) meets with the Customer's requirements prior to the work commencing under this document. Once Flint Interactive has provided a Deliverable to the Customer, the Customer must promptly test the Deliverable for compliance with the Project Schedule. The Customer must submit all complaints, claims, or notifications of Deliverables that do not comply with the Project Schedule to Flint Interactive in writing within 14days of the date of Flint Interactive's invoice for the Deliverable. Otherwise, the Customer is deemed to have accepted the Deliverable. On no account shall the Customer have any claim against Flint Interactive on the basis that the Deliverable provided in accordance with its specifications does not meet the Customer's or any other person's requirements.
None of the Deliverables provided pursuant to these Terms or a Project Schedule are designed or intended to be fault-tolerant or to be used where their failure or malfunction could lead to death, personal injury, or economic, physical or environmental damage ("Risky Activities"). Flint Interactive specifically disclaims any express or implied warranty of fitness of any of the Deliverables for Risky Activities, and the Customer will indemnify Flint Interactive for any losses arising from the use of any Deliverable by any person for Risky Activities.
Except for express undertakings to indemnify and any warranties set out in these Terms, to the extent permitted by the law, Flint Interactive expressly excludes all conditions and warranties whether express or implied.
Despite any other provision in these Terms or a Project Schedule, in no event will Flint Interactive be liable to any party including the Customer for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of these Terms (including for loss of profits, use, data, or economic advantage), regardless of how it arises. The Customer will indemnify Flint Interactive from and against any claim by any party claiming any such damage against Flint Interactive.
Subject to clause9.5, in no event will Flint Interactive's total aggregate liability in respect of all claims arising under or pursuant to these Terms exceed the amount actually paid to Flint Interactive under these Terms during the previous 12months, regardless of whether such claims arise out of a single event or a series of events.
Certain provisions of the Trade Practices Act, 1974 (Cth) and other statutes, rules and regulations may imply certain non-excludable warranties or conditions. To the extent that they are not permitted to be excluded, they are included in these Terms, and Flint Interactive's cumulative liability for breach of those non-excludable conditions or warranties and the Customer's only remedy in relation to such a breach is limited to:
(a) in the case of the software, design, one or more websites, or other creative artistic work or goods that were supplied by Flint Interactive or on its behalf, at Flint Interactive's option: (i)replacing or repairing the software, design, one or more websites, or other creative artistic work or goods, or supplying equivalent software, design, one or more websites, or other creative artistic work or goods; (ii)paying the cost of replacing or repairing the software, design, one or more websites, or other creative artistic work or goods or of acquiring equivalent software, design, one or more websites, or other creative artistic work or goods; or (iii)refunding the amount paid to Flint Interactive for the software, design, one or more websites, or other creative artistic work or goods; and/or
(b) in the case of any other services that were supplied by or on behalf of Flint Interactive, at Flint Interactive's option: (i)supplying the services again; (ii)paying the cost of having the services supplied again; or (iii)refunding the amount paid to Flint Interactive for the services.
The Customer is solely responsible for the proper backup and protection of all of its software, design, one or more websites, or other creative artistic work and data (including any Deliverables once installed), as well as the implementation and maintenance of firewalls and security measures such as, for example, proper virus control.
10. Agreement Non-exclusive
The Customer acknowledges that Flint Interactive is providing Deliverables to the Customer on a non-exclusive basis and that Flint Interactive may provide services and products of the same or a similar nature as the Deliverables to any other party (provided that in doing so it does not breach clause6).
11. Term and Termination
Either party may terminate the agreement under a Project Schedule or these Terms generally, if the other party:
(a) breaches a material obligation under these Terms and does not remedy that breach within 14days of a written notice of that breach from the other party; or
(b) is or is deemed to be insolvent, or ceases to conduct it business in the ordinary way (except if it has assigned its rights and obligations under these Terms in accordance with these Terms prior to that occurring), or an administrator, receiver, receiver and manager, official manager, liquidator, provisional liquidator, or similar is appointed in respect of the other party or any of its assets.
On termination of an agreement under a Project Schedule or these Terms, Flint Interactive is entitled to invoice the Customer for all Deliverables provided or in the process of being delivered but not yet invoiced, including Products ordered for the Customer but not yet delivered and invoiced (unless the Products can be returned to their supplier for a refund without cost or penalty). If any amount payable under these Terms remains unpaid 30days after termination then, without prejudice to Flint Interactive's other rights, all licences granted to the Customer for which payment has not been received shall automatically terminate, and Flint Interactive may retake possession of any unpaid Products and disable or remove any such unlicensed software, design, one or more websites, or other creative artistic work (including by remote means).
11. The Customer's obligations (including any obligations to indemnify) under clauses 7 (Intellectual Property) and 9 (Liability), and each party's obligations under clause 6 (Confidentiality) and this clause 11 survive the termination of any agreement under these Terms for any reason.
12. General Provisions
These Terms are governed by and will be interpreted according to the laws of Victoria, and the parties consent and submit to the jurisdiction of the Victorian courts.
If any provision of these Terms proves to be illegal or unenforceable for any reason, that provision is deemed omitted without affecting the remaining provisions and the remaining provisions of these Terms shall continue in full force and effect.
Any notice required or contemplated by these Terms is deemed to have been properly given to a party if it is in writing, properly addressed and delivered personally, or mailed postage prepared addressed or by facsimile to the party at its addresses set out in these Terms, or such other address nominated by a party in writing.
The Customer may not assign any of its rights or obligations under these Terms without Flint Interactive's prior written consent. Flint Interactive may arrange for subcontractors to perform any of its obligations under these Terms or a Project Schedule.
Flint Interactive will not be liable to the Customer or to any third party for any non-performance or delay in the performance of its obligations under these Terms, if events or conditions beyond its reasonable control cause the non-performance or delay. In no event will this provision affect Customer's obligation to make payments to Flint Interactive under these Terms except in respect of Deliverables that cannot be delivered, until they can be delivered.
Flint Interactive's failure, delay or neglect to enforce a term of these Terms is not to be taken as a waiver of that term or Flint Interactive's rights, or a consent to, a waiver of, or any excuse for any different, continuing, or subsequent breach.
These Terms may only be amended or varied by written agreement of the parties.