1. Provision of Services
1.1 KINDLEMAN Pty Ltd. Mailing address Kindleman, Level 1, 27 Belgrave St, Manly NSW 2095 – ABN 96 149 215 583 (“KINDLEMAN”) will provide you with the services set out in your confirmed Purchase Order.
Only those services mentioned will be provided by KINDLEMAN and any amendments, add ons or schedule changes must be agreed to in writing. This and the following clauses are the General terms and conditions on which those services are supplied and together with the Purchase Order and Fee Schedule form the total agreement between us.
1.2 For the purpose of these terms and conditions, “you” and “your” refers to a person, firm or corporation, jointly and severally, if there is more than one, obtaining services from KINDLEMAN.
2. Costs and Payments
2.1 You must pay all charges as set out in the Purchase Order. As prices quoted on KINDLEMAN material may change at any time without notice, please check the price on your Purchase Order before confirmation. Cost estimates are only valid for a period of 30 days.
2.2 You will remain liable for all fees during any period when Services have been discontinued or suspended due to a failure on your part to comply with these terms and conditions
2.3 Subject to clauses 2.7, 2.10, 2.11 and 7.1, you will be invoiced as agreed in your purchase order. You must pay KINDLEMAN’s charges without any set off, counter claim or deduction unless same is agreed in writing between you and KINDLEMAN.
2.4 You are liable to pay overdue interest at 5% per week on any amounts not paid within 30 days of invoice, 10% per week in case of web hosting. All intellectual property rights remain with KINDLEMAN until payment.
2.5 All accounts are payable within 30 days of invoice.
2.6 KINDLEMAN reserves the right to prioritize early paying clients and to charge urgency fees for turnaround within 3 working days. (VIP status)
2.7 Agreed Costing is conditional on your supplying data required for a Website Stage or completion deadline agreed within 10 working days of confirmation of Order. KINDLEMAN reserves the right to revise costings if that condition is not met in line with charges applying at the relevant time.
2.8 No final artwork or files will be delivered until final invoices are paid in full. Payment by cheque will entail waiting for clearance before supply of files. Delivery being: Supply of final artwork digital files to printer, on disk, via email or uploaded to nominated ISP. Construction files remain the property of KINDLEMAN unless arranged otherwise.
2.9 Printer or ISP Liaison is charged at our current rate per hour.
2.10 The fees and expenses shown are minimum estimates only. Final fees and expenses
shall be shown when invoice is rendered. Estimates may vary based on design details, project scope, content amendments and other external factors. The Client’s approval shall be obtained for any increases in fees or expenses that exceed the original estimate by ten percent (10%) or more. Author’s Corrections & Client Requests are aside this term & shall be invoiced accordingly. Quotations are available on request.
2.11 Projects over $3000 may be invoiced progressively including an upfront payment of between 30-50% depending on the work required.
2.13 Consultancy fees are charged in accordance with KINDLEMAN’s Fee Schedule. The minimum fee for KINDLEMAN’s services for any project is $250.
2.14 Payment by cheque shall not be deemed made until clearance of the cheque. Cheques must be made payable to KINDLEMAN Pty Ltd and crossed ‘not negotiable’.
2.15 Time for payment shall be of the essence.
3. Limitation of Liability
3.1 All terms conditions, warranties, undertakings inducements and representations, whether express or implied, statutory or otherwise relating to the provision of services by KINDLEMAN not contained in the Agreement are excluded and KINDLEMAN WILL NOT ACCEPT LIABILITY FOR ANY LOSS OR DAMAGE (INCLUDING CONSEQUENTIAL LOSS OR DAMAGE) HOWEVER CAUSED (WHETHER BY NEGLIGENCE OR OTHERWISE) WHICH MAY BE SUFFERED OR INCURRED OR WHICH MAY ARISE
DIRECTLY OR INDIRECTLY with respect to the service.
3.2 Where any applicable legislation implies any term, condition or warranty into the Agreement or in respect of KINDLEMAN’s relationship with you, or otherwise gives you a particular remedy against KINDLEMAN and the legislation or any other legislation renders void or prohibits provisions excluding or modifying the application of, exercise of, or liability under such implied term, condition, warranty or remedy will be deemed to be included in the Agreement or as the case may require apply to the relationship
between KINDLEMAN and you. However, KINDLEMAN’s liability for any such breach of such implied term, condition or warranty or under such remedy, will be limited, at KINDLEMAN’s option, in any one or more of the ways permitted in that legislation, including, where so permitted if the breach relates to Services the supplying of those services again or the payment of the cost of having those Services supplied again.
3.3 You acknowledge that web sites cannot be guaranteed to be 100% error free in construction and/or 100% secure, and acknowledge that the existence of errors falling short of a complete failure of consideration in the site shall not constitute a reason to terminate this agreement. No responsibility is taken by KINDLEMAN should your web site become compromised in any way. Clients with sensitive security requirements may consider independent audit.
4. Suspension of Services
4.1 KINDLEMAN reserves the right to suspend services in any case where you fail to perform your obligations under this agreement. If payment for services is not received within the terms of payment stipulated by us websites may be taken down until payment is confirmed.
4.2 KINDLEMAN may from time to time and without notice or liability to you suspend any of the services if the reason for doing same is an event beyond the reasonable control of KINDLEMAN.
5. Termination & Cancellation
5.1 If you:
a) default in payment by the due date of any amount payable to KINDLEMAN; or
b) where you are an individual and die, commit an act of bankruptcy or enter into any scheme of arrangement or any assignment or composition with or for the benefit of your creditors or any class of your creditors generally; or
c) where you are a corporation and enter into any scheme of arrangement or any assignment or composition with or for the benefit of your creditors or any class of your creditors generally, or have a liquidator, provisional liquidator, administrator, receiver, or receiver and manager appointed, or any action is taken for, or with a view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the corporation then all money which would become payable by you to KINDLEMAN at a later date in relation to your purchase order(s) (i.e. the total contract costs), becomes immediately due and payable without the requirement of any notice to you and KINDLEMAN may, without prejudice to any other remedy available to it:
i) Charge you for all disbursements, expenses and costs (including legal costs on an indemnity basis) incurred by KINDLEMAN in taking whatever action deemed appropriate to recover any sum due;
ii) Cease or suspend for such periods as KINDLEMAN thinks fit, supply of any further services to you or take down a website permanently;
iii) By notice in writing to you, terminate any agreement with you so far as unperformed by
iv) Retain any security given or moneys paid by you or available through the enforcement of any guarantee, security, or bond and apply it against any costs and expenses incurred by
KINDLEMAN as a result of the default; and/or
v) Cancel in writing any current Purchase Orders from you.
5.2 In the event you cancel a project before completion, you must pay the full amount outstanding for completed stages, along with a sum equal to 30% (plus GST) of the value of the incomplete stages by way of liquidated damages and not as a penalty.
6. Contents of Web Pages and Undertakings
6.1 You will be solely responsible for the content of your Web Page/undertakings. KINDLEMAN is not responsible for proofreading any content unless specifically agreed.
6.2 KINDLEMAN makes no representations and accepts no responsibility in relation to the content, accessibility, SEO or functionality of your Web Site. It is your responsibility to ensure that your site meets your requirements. KINDLEMAN may assist you with accessibility and SEO (using best practice white hat techniques) at additional cost to you and by express agreement between us.
6.3 If you provide KINDLEMAN with goods, material, photographs, film, data or information to be used in any form, you hereby warrant that these do not infringe the rights of third parties and indemnify KINDLEMAN against any action taken against KINDLEMAN by any such third party.
6.4 Without limiting the generality of the foregoing, you agree not to infringe the copyright trademark, privacy or personal or proprietary rights of third parties, supply libelous, abusive, obscene material or disparage the products or services of any third party.
6.5 KINDLEMAN for its part hereby undertakes not to knowingly infringe the rights of third parties in activities conducted on your behalf.
6.6 You are solely responsible for dealing with persons who access your data or webpage and warrant that you will not refer complaints or enquiries in relation to such data to KINDLEMAN.
6.7 Where the option of a sitemap or website proposal is not taken, and conversation forms a verbal agreement to functionality of your website, you agree to reasonably follow guidance and website build understanding by KINDLEMAN. Where additional work is required outside that verbal agreement, you understand that the work is charged at hourly rates with your consent to go ahead.
6.8 KINDLEMAN takes no responsibility for site back-ups, however this service may be provided at additional cost to you and by express agreement between us.
7. Artwork Files
7.1. Any file retrieval & design refinement/ author’s corrections exceeding the quotation will be charged at an hourly rate as set out in KINDLEMAN’s schedule of fees, or part thereof. After the Finished Artwork stage, any urgent author’s corrections/changes will incur a fifty percent (50%) surcharge in addition to the given hourly rate.
7.2 In-house colour inkjet/ laser prints supplied by KINDLEMAN may not be an exact colour match, compared to professional printing by a professional print house (due to ink mixes).
If you would like to proof an exact colour match, prior to printing, we suggest you ask your printer, or KINDLEMAN to provide colour swatches, specification books or professional proofing at final artwork stages. Colour matching may vary accordingly to devices (due to ink mixes & varying colour gamma across devices). We cannot guarantee that output will be 100% identical to output received from KINDLEMAN.
7.3 KINDLEMAN is entitled to ten printed/ finished samples of all projects for portfolio and project management/archiving purposes.
7.4 Due to Font Licensing restrictions, font files cannot be provided to the client, KINDLEMAN retains ownership of all fonts, as the purchaser & license owner (same terms apply as software licensing). However, outlined & embedded forms in Finished Artwork (to be provided to your suppliers for printing) of the fonts may be permitted (depending on individual licenses). If you would like further information on font licensing or specific resellers, please direct your enquiries to KINDLEMAN.
8. Technical Support, Changes and Maintenance
8.1 In the event your web site experiences any errors or faults as a direct result of KINDLEMAN’s work on the site, KINDLEMAN shall repair such errors or faults within 30 days, provided notice of such errors or faults is given to KINDLEMAN within 7 days of their detection. This service is provided at no cost for a maximum period of 90 days from the date the project was completed and invoiced. Support and maintenance provided outside of this period will be provided in accordance with clauses 8.2 and 8.3.
8.2 Technical assistance via telephone or email will be offered. Extensive queries taking more than 15 minutes to deal with and/or site maintenance will be charged at hourly rates. See particulars of hourly rates in our Fee Schedule.
8.3 Technical assistance on-site will be offered and will be charged at hourly rate. Transportation fees will also be charged on hourly rate where applicable, otherwise as agreed.
9. Web Hosting
9.1 Web hosting for development is supplied by trusted 3rd party providers for all material developed by KINDLEMAN.
9.2 Please note that KINDLEMAN accepts no responsibility for delays or down time, breakdowns, data loss or any other hosting issues caused by Internet Service Providers (ISPs) or web hosts.
9.3 In the event you require KINDLEMAN’s help with technical aspects when dealing with a hosting company that has not been hired by KINDLEMAN, we shall charge you at hourly rate.
10. Dispute Resolution
10.1 The parties agree that if any dispute should arise under this agreement, attempts in good faith by both parties will be made to resolve the matter fairly before resorting to court procedures. In doing so, each party agrees to use its best endeavours to:
• Clearly communicate in writing the background facts leading to or causing the dispute
• Set out clearly what action is required to settle the dispute
• Select a way of resolving the dispute and explain why that way of resolving the dispute can be said to be a fair resolution
• Discuss specific means of avoiding such disputes in the future
10.2 Attempts to resolve the dispute must follow the following procedure:
! 1.! The person complaining shall set out in writing the background, the issues and the outcome
! 2.! The person to whom the complaint is addressed will reply in writing within 10 business days to
each issue in dispute setting out its perspective on the issue and the outcome desired.
! 3.! If the dispute is not resolved in accordance with this exchange of written issues and outcomes, then the complainant will raise the matter with a neutral professional adviser or Alternative Dispute Resolution (ADR) provider listed in a relevant publication of the Department of Workplace Relations and Small Business or similar government department within 10 business days.
! 4.! If the dispute is not resolved in accordance with such reference, the matter shall be referred to a single agreed arbitrator within 10 business days; whose decision shall be final.
! 5.! In the case of disagreement on the appointment of a single arbitrator, then the parties shall be entitled to nominate one independent arbitrator with 10 days of disagreement and a coin will be tossed by an independent person to decide which will act as arbitrator of the dispute.
! 6.! Action taken to settle the dispute at each stage must be undertaken promptly and the parties shall equally share the costs associated with the dispute settlement procedure.
11. Intellectual Property
11.1 It is standard practise for KINDLEMAN to retain original source files. in the event you require the original files in their final format, an additional fee will be negotiated to cover copyright and future usage.
11.2 KINDLEMAN retains the Copyright in and the right to use all artwork created in advancing the profile of KINDLEMAN and to be recognized for artwork created by KINDLEMAN.
11.3 KINDLEMAN shall be free to reproduce, use, disclose display exhibit, transmit, perform, create derivative works, and distribute any item from your Web Page unless specifically agreed otherwise. Further, KINDLEMAN shall be free to use any ideas concepts know-how or techniques acquired in construction of sites for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products and other items incorporating such information unless specifically agreed otherwise.
11.4 KINDLEMAN observes Privacy Laws and Guidelines relating to personal data.
11.5 Any software, systems, code or original artworks or graphics developed by KINDLEMAN or it’s contractors including HTML markup, Flash and multi media including audio and video, database design and development, data collection and web based administration are licensed to the client for use in their own single website. It cannot be copied, reused or resold without the written permission of KINDLEMAN.
Original graphics created for use in the proposed website cannot be re-used in any other website or for other promotional media including brochures, press or other advertisements without our express written permission and/or additional fees.
The licensing for any server side programs and scripts including those written in PHP, Java, CGI requires the program, scripts and data to be held on a web server run by KINDLEMAN. Such scripts are strictly the copyright of KINDLEMAN and all rights are reserved. They must not be edited, copied or transferred to another server without the express written permission of KINDLEMAN.
12.1 In the event KINDLEMAN requires a Guarantor in relation to its supply of services to you, the Guarantor hereby:
12.1.1 Agrees to guarantee to KINDLEMAN the due and punctual payment of all money presently
owing or any money that may be owing in the future by you, in respect of the cost of goods or services supplied by KINDLEMAN to you and any other sums payable by you to KINDLEMAN.
pursuant to KINDLEMAN’s Terms and Conditions of Sale (hereinafter collectively called “secured moneys”).
12.1.2 Agrees as a separate severable and additional covenant and obligation to indemnify and keep indemnified KINDLEMAN from and against all losses, costs, charges and expenses
whatsoever that KINDLEMAN may suffer or incur in relation to the supply of goods or services you and further agrees that each of the provisions hereinafter contained that applies or is capable of application will apply to the indemnity hereby given by the Guarantor.
12.2 The Guarantor covenants, acknowledges and agrees as follows:
12.2.1 The Guarantee hereby given is a continuing guarantee, the indemnity hereby given is a continuing indemnity and neither the said guarantee nor the said indemnity will be discharged in any way or be considered or deemed to be discharged in any way by any payment to KINDLEMAN and shall apply to the present and any future balance of the secured moneys.
12.2.2 Notwithstanding that as between the Guarantor and you the position of the Guarantor is that of surety only nevertheless as between the Guarantor and KINDLEMAN, the Guarantor is liable hereunder as a principal and as a primary debtor for the payment of the guaranteed money.
12.2.3 The Guarantee is valid and enforceable against the Guarantor and the liability hereunder of the Guarantor continues and may be enforced by KINDLEMAN notwithstanding:
(i) that no steps or proceedings have been taken against you;
(ii) any indulgence or extension of time granted by KINDLEMAN to you;
(iii) the death or bankruptcy or winding up of you;
(iv) that payment of the secured moneys by you cannot be legally enforced.
12.2.4 The Guarantor hereby acknowledges having given its consent to KINDLEMAN to obtain from a credit reporting agency a consumer credit report containing information about it for the purpose of KINDLEMAN assessing whether to accept the Guarantor as a guarantor for credit that may be applied for by you.
12.2.5 The term “KINDLEMAN” includes its successors and assigns and the terms “you” and
“Guarantor” include their respective executors, administrators and successors.
Where a Guarantor is required, the following must be executed ……………………………..
13.1 If any of these terms and conditions (or part of them) is void or unenforceable, it is taken to be removed and no longer forms part of the Agreement between us. The remaining terms and conditions remain in full force and effect.
13.2 The laws of NSW from time to time govern these Terms and the parties agree to the exclusive jurisdiction of the courts and tribunals of NSW, the Federal Court of Australia, and of the courts entitled to hear appeals from those courts and tribunals.
13.3 Failure by KINDLEMAN to enforce any of these Terms shall not be construed as a waiver of its rights.
13.4 If any provision of these Terms is or becomes invalid, illegal or unenforceable the provision must be read down so as to be enforceable, or if it cannot be read down, the term may be severed from these Terms without affecting the enforceability of the remaining Terms.
13.5 Words in the singular shall be construed so as to include the plural and vice versa.
13.6 Any notice to be served hereunder may be served by hand, facsimile transmission, email or post to the last known trading address of either party. A notice is deemed to be received by facsimile transmission at the time recorded on the transmission report. A notice is deemed to be received by post after two days if posted within the Australia and 10 days if posted from outside Australia.