Our Commitment to you
i) We respect our CLIENT’s confidentiality (Item 7).
ii) We use open source solutions wherever possible. This means no vendor lock-in and software fees are charged at ‘fair and reasonable rates’ or in most cases, fees are not applicable (Item 12.1).
iii) If the CLIENT determines that the website doesnot comply with the project components agreed to inthis document, 3am Ideas agrees to carry out any necessary and reasonable modifications without
extra charge (Item 24).
iv) If the CLIENT is not happy with our service, the CLIENT is free to move their domain name, website and data in its entirety to another service provider (Item 21.1).
Introduction
This document defines the terms and conditions of our working relationship. Unless otherwise agreed to in writing by both the parties, the terms of this Agreement will commence on the date specified.
All services that 3am Ideas may be contracted to produce or provide for [customer name] (referred to as CLIENT) will be subject to the following:
Definitions
As used herein and throughout this Agreement: “Agreement” means the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule(s), together with any other Supplements designated below, together with any exhibits, schedules or attachments hereto.
“Content” means all materials, information,photography, writings, and other creative content.
“Copyrights” means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Australian and International Copyright Law.
“Deliverables” means the services and work product specified in the Proposal to be delivered by 3am Ideas to the Client, in the form and media specified in the Proposal.
“Services” means all services and the work product to be provided to Client by 3am Ideas as described and otherwise further defined in the
Proposal.
“Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables.
“Open Source Software” means computer software that is available in source code form for which the source code and certain other rights normally reserved for copyright holders are provided under a software license that permits users to study, change, and improve the software.
“Ongoing Management” means the ongoing work to keep the website functioning and secure. This includes, but is not limited to: data management, backups, maintenance, upgrades and software patches.
General Terms
1. Authorisation
The CLIENT authorises 3am Ideas to perform the services outlined in this agreement on the CLIENTS’ behalf, which may include, but is not limited to, accessing their hosting account and disk space, creating databases and applications, and submitting the project to search engines.
2. Agreement Scope and Period
Services supplied, costs and rates are limited to what is specifically set forth in this agreement. Any additional services will require an additional agreement. We reserve the right to adjust our service and rates after this period.
3. Costs and Fees
Changes and additions outside of the scope of this document will be quoted and invoiced to the CLIENT. The CLIENT will be advised of all costs, changes and additions before the commencement of the additional work. Fees for professional services do not include outside purchases such as, but not limited to, software licensing, copyright licensing, printing, photography, colour printouts, laminating,
illustrations, shipping and handling or courier service. Expenses are itemized on each invoice. Expenses at this stage are subject to GST.
4. Production Schedules
Production schedules will be established and adhered to by both the CLIENT and 3am Ideas. Where production schedules are not adhered to by the CLIENT, final delivery date or dates will be adjusted accordingly. Additional costs may be charged for CLIENT delays, if the delays result in an increase in time to manage or deliver the services.
5. Overtime
Estimates are based on a reasonable time schedule, and may be revised to take into consideration the CLIENT’s requested “Priority Scheduling”. Requested priority schedules that require overtime and weekend work will be subject to 50% markup at an hourly rate. Overtime is defined as between 6.00pm – 9.00am Monday to Friday, all day Saturday, Sunday and public holidays, unless otherwise agreed.
6. Payment
6.1 The CLIENT agrees to pay 3am Ideas in accordance with the terms specified in each proposal/estimate. The CLIENT will be required
to pay 50% of the project cost before commencement of work. Unless otherwise specified, all subsequent balances due are payable upon completion of the project.
6.2 If the CLIENT fails to pay any invoice, 3am Ideas reserves the right to withdraw the website and associated materials or refuse completion and/or delivery of work until past due balances are paid. All materials or property belonging to the CLIENT, as well as work performed, may be
retained as security until all just claims against the CLIENT are satisfied. 3am Ideas will charge a late payment fee of 5% per month on the outstanding amount. The CLIENT is responsible for any debt collection fees which may come due.
6.3 In the event of cancellation of the project prior to completion, the CLIENT must pay 3am Ideas a fee for work completed, based on the contract price and the expenses already incurred.
7. Confidentiality
We value your confidentiality. 3am Ideas will not disclose to any third party or use, other than for the purposes of this agreement, any knowledge or information imparted to or obtained by it during or in connection with the fulfilment of this agreement, which is of a secret or confidential nature relating to the business, equipment, processes, products, services or business strategies offered or employed by the CLIENT.
This obligation of confidence will cease to apply in relation to information that 3am Ideas is required to disclose by any law, or which
becomes part of the public domain other than as the result of a breach by 3am Ideas of its obligations of confidence under this Agreement.
8. Subcontractors
3am Ideas reserves the right to assign subcontractors or external suppliers. Any subcontractors or external suppliers will be bound to the terms of this agreement.
9. Promotion
3am Ideas is confident that the CLIENT’s expectations will be exceeded and as such is notifying the CLIENT that 3am Ideas reserves the right to use the CLIENT’s website, associated graphics and any unused ideas and development in the promotion of 3am Ideas services.
CLIENT agrees to allow 3am Ideas to retain a credit and link from the footer of the website.
10. Copyright
10.1 The CLIENT is responsible for all trademark, servicemark, copyright and patent infringement clearances. The CLIENT is also responsible for
arranging, prior to publication, any necessary legal clearance of materials 3am Ideas uses for this project. The CLIENT indemnifies 3am Ideas against any loss or damage arising directly or indirectly from any unauthorised use of photographs, text, or other Intellectual Property not under copyright ownership of the CLIENT.
11. Project Copyright
11.1 After acceptance of the website or artwork and payment of all sums due by the CLIENT, 3am Ideas agrees to assign perpetual and unrestricted copyright to use any materials produced by 3am Ideas as outlined in this agreement to the CLIENT including exclusive usage rights to unique graphics.
11.2 3am Ideas reserves all rights over working and source files. The CLIENT does not have the right to resell, reuse or re-purpose any design or content supplied as part of this agreement unless specified.
11.3 3am Ideas reserves all rights to licence (open source) and release all software code including website templates developed under this agreement.
12. Open Source Software
12.1 3am Ideas makes extensive use of open source software and components to supply websites and services to the CLIENT. 3am Ideas will not charge additional licencing fees on open source software.
12.2 The CLIENT indemnifies 3am Ideas against any loss or damage arising directly or indirectly from any failure of software supplied to the CLIENT.
12.3 All software and components not developed by 3am Ideas retain the original licence and terms associated with them. 3am Ideas cannot assign any rights to the CLIENT and the CLIENT agrees to be bound by the original Author’s terms.
13. Force Majeure
3am Ideas shall not be deemed in breach of this Agreement if 3am Ideas is unable to complete the Services or any portion thereof by reason offire, earthquake, labour dispute, act of God, death, illness or incapacity of 3am Ideas or any local, state, federal, national or international law, governmental order or regulation or any other event beyond 3am Ideas’ control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, 3am Ideas shall give notice to the CLIENT of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
14. Limitation of Liability
The services and the work product of 3am Ideas are sold “as is.” In all circumstances, the maximum liability of its Designers, Directors, Officers, Employees, Design Agents and Affiliates (“3am Ideas parties”), to the CLIENT for damages for any and all causes whatsoever, and the CLIENT’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net cost of this project as specified in this Agreement. In no event shall 3am Ideas be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by 3am Ideas even if 3am Ideas has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
15. Termination
Either party may terminate this Agreement by giving 30 days written notice to the other of such termination. In the event that work is postponed or terminated at the request of the CLIENT, 3am Ideas
shall have the right to bill pro rata for work completed through to the date of that request, while reserving all rights under this Agreement.
If additional payment is due, this shall be payable within fourteen days of the CLIENT’s written notification to stop work. In the event of termination, the CLIENT shall also pay any expenses incurred by 3am Ideas and 3am Ideas shall own all rights to the work. The CLIENT shall assume responsibility for collection of all legal fees necessitated by default in payment.
16. Domain Names
16.1 All domain names are legally owned by the CLIENT. All domain name registrations are subject to availability and registration rules. The CLIENT manages their domain(s) and payment of fees unless the CLIENT requests in writing that 3am Ideas manage the domain name(s) on behalf of the CLIENT. 3am Ideas will invoice the CLIENT when fees are due.
16.2 3am Ideas uses VentraIP Pty Ltd (referred to as REGISTRAR) to manage our CLIENTS’s domain names. CLIENTS are bound by the REGISTRARS’s “Domain name registration terms” which are found on their website: www.ventraip.com.au
16.3 The CLIENT indemnifies 3am Ideas against any loss or damage arising directly or indirectly from any failure of services provided by the REGISTRAR.
17. Hosting
17.1 The CLIENT is responsible for contacting the chosen host for support relating to hosting matters. 3am Ideas will charge for costs incurred liaising with the hosting company and supporting the CLIENT with hosting related issues.
17.2 3am Ideas will charge for costs incurred due to differences in hosting environment if installation and management exceeds standard time frames.
18. Browser Variance
Our websites are optimised for XHTML compliant browsers and adjusted to support Google Chrome. We test using the browsers that are statistically the most commonly used. Layout and aesthetic elements may change or degrade in some browsers.
Websites are tested on
• Latest version of Chrome (PC)
• Latest version of Android browser
3am Ideas will test and optimise for additional browsers and versions if requested by the CLIENTbefore the commencement of the project.
19. Colours
Website visitors use different monitors with different settings. Colours and image quality of the website including graphics and photography will shift between computers and monitors.
20. Testing and Acceptance of the Website
Once the project has, in the opinion of 3am Ideas been completed, 3am Ideas will notify the CLIENT either verbally or in writing, and provide the CLIENT with an opportunity to test and review the website. If the CLIENT determines that the website does not comply with the Project Components agreed to in this document, 3am Ideas agrees to carry out any necessary and reasonable modifications without extra charge.
21. Website, Data and Security
21.1 Upon the end of this agreement and subject to all outstanding amounts being paid, The CLIENT is free to transfer their website management to another service provider. 3am Ideas will supply the last
backup of the site and associated data. 3am Ideas will take all reasonable actions to transfer the CLIENT’S domain name to a new registrar, if
required.
21.2 Ongoing Management (see definition) is not included in this agreement and will require an additional agreement.
21.3 If The CLIENT does not proceed with an additional or Ongoing Management agreement, The CLIENT is responsible for Ongoing Management of the website and indemnifies 3am Ideas against any loss or damage arising directly or indirectly from website downtime or security breaches.
22. Client Responsibilities
If the CLIENT or an agent of The CLIENT other than 3am Ideas attempts to update, edit or alter the site’s pages, infrastructure, source files or hosting management in a way that causes damage to individual pages or the site’s architecture, time to repair web pages will be assessed at our
STANDARD or OVERTIME hourly rate, and is an additional cost above the costs outlined in this agreement.
23. Errors and Omissions
It is 3am Ideas’ responsibility to check carefully for accuracy in all respects, ranging from spelling to technical illustrations. However 3am Ideas is not liable for errors or omissions. The CLIENT indemnifies 3am Ideas against any loss or damage arising directly or indirectly from any errors and omissions.
24. Revisions
3am Ideas will provide two rounds of revisions of content after the submission of the content, before the website is completed. Extended revisions outside of this scope will be charged under “Project Management” rates.
25. Copy
All text must be supplied in digital format (TXT, RTF, HTML, MS Word, Open Office, InDesign).
26. Images
Graphics and photographs are to be supplied in digital format to 3am Ideas. Photographs must not exceed a file size of 5mb each (unless by prior arrangement). Larger files will incur an extra cost due to increased time in processing.
27. Branding
All logos and branding must be provided in an industry standard vector format (preferences are: EPS, PDF, Illustrator).
28. Search Engine Optimisation
If the CLIENT opts for a Search Engine Optimisation campaign a separate agreement must be signed and agreed upon., which can be found below.
29. Online Advertising
In this Agreement the following words have their
corresponding meanings:-
Agreement / Terms and Conditions means your
agreement with us as contained in this document (as
may be modified from time to time).
Google / Google AdWords / Search Engine means
Google and Google AdWords except to the extent
that you have specifically instructed us (and we have
agreed to) manage your account in relation to a non-
Google search engine in addition to (or in substitution
of) Google.
Facebook / Social Media means Facebook except
to the extent that you have specifically instructed
us (and we have agreed to) manage your account in
relation to a non-Facebook social media platform in
addition to (or in substitution of) Facebook.
I, You, Your / Account Holder means the person or
company named as the client in this Agreement and
(where applicable) the website or business that you
have authority over.
We / 3am Ideas Pty Ltd ABN 97 356 751 261 trading
as 3am Ideas Pty Ltd.
B. Payment Terms
1. The Initial Set Up Fee is payable in full before the
setup of your accounts will begin.
2. The Management Fee for your accounts will be
charged in arrears on a monthly basis.
3. 3am Ideas will link your credit card information to
Google and Facebook so that they may automatically
debit your supplied credit card for the agreed on
Adwords advertising budget. If you prefer to pay
by EFT directly to us to pay Google or Facebook on
your behalf then your advertising budget must be paid in full
before commencement of the campaign.
4. 3am Ideas reserves the right to stop managing your
Google AdWords or Facebook accounts and terminate this
Agreement at any time by written (or email) notice to you. If
this occurs the 3am Ideas monthly management fee will stop
immediately and no further payments will be charged.
5. If you wish to suspend or cancel the 3am Ideas management
of your accounts at any time then please let us know by phone
or email.
Please note that if you wish to pause the 3am Ideas
management of your AdWords accounts then your Google
advertising must also be paused (which we will arrange).
6. Upon cancelling 3am Ideas management, all amounts owing
to 3am Ideas will need to be paid in full; any outstanding
amounts will be due within 7 business days of cancellation.
7. All payments in this Agreement are Australian dollars and
are GST exclusive.
8. 3am Ideas reserves the right to engage a debt collector at
your expense if there are any unpaid invoices overdue by 60
days.
C. General AdWords & Facebook Terms & Conditions
This is not a fixed-term contract with 3am Ideas, however
whilst 3am Ideas are managing your Google AdWords or
Facebook accounts the following terms and conditions apply:-
9. By entering this Agreement with 3am Ideas you give us
permission to access all of your Google and Facebook business
accounts for the purposes of optimisation and management
of your online business.
10. 3am Ideas will endeavour to set up your
advertising accounts as soon as possible, however in
some cases it may take up to 7 – 10 business days to
complete set up of your new account.
11. If you decide to cancel your management services
with us then we require 30 days’ notice in writing to
[email protected].
12. You can pause your management services for up
to 4 weeks every 12 months. A pause that extends
longer than this period will become a cancellation
and 30 days’ notice to cancel will apply. A new setup
fee will be charged if you intend to use our services
again, once a cancellation has been processed.
13. 3am Ideas management (with 3am Ideas
management fees) is a separate service from the
“per click” fees that Google AdWords or Facebook
will charge you. Cancellation of your management
does not automatically stop your Google AdWords
or Facebook advertising from running and incurring
“per click” fees. 3am Ideas will not be liable for
any amounts that Google AdWords or Facebook
charges you following the cancellation of your
management with 3am Ideas. If you wish to cease
advertising online at the same time that you cancel
your 3am Ideas management, please notify your
Client Manager in writing so that we can cancel your
Google Adwords or Facebook online advertising as
well. Alternatively, you may choose to directly access
your own Google Adwords or Facebook account to
arrange cancellation.
7
Appendix A | 3am Ideas – Social Media Advertising Terms & Conditions
14. For clarity, please note that:-
(a) 3am Ideas is not Google, Google AdWords,
Facebook or Yahoo;
(b) 3am Ideas is a separate entity from Google and
facebook.
15. 3am Ideas will endeavour to help you obtain
your online advertising goals by providing you with
advice, information and technical services in relation
to Search Engine advertising/marketing. Unless
specifically stated to the contrary in this Agreement,
3am Ideas do not guarantee any particular rate of
return or performance of any online advertising
on Google AdWords (including but not limited to
any particular search results page/s or rankings)
or Facebook. We cannot be held responsible for
commercial outcomes which are associated with the
Internet marketing or management of your Google
AdWords or Facebook account for your business and/
or websites.
16. 3am Ideas is providing an internet marketing
service for a competitive price. 3am Ideas is not
insuring or underwriting your chosen business model.
You acknowledge that internet services are inherently
subject to technical failures and disruptions from
time to time. To the maximum extent permitted by
law:-
(a) 3am Ideas will not be liable in any way for fines,
penalties, taxes (except GST), exemplary/aggravated/
punitive damages, liquidated damages, indirect/
consequential losses (including loss of contract,
loss of production, loss of revenue, loss of profit,
lost opportunity costs, and/or other loss not arising
naturally and directly according to the usual course
of things) or legal costs and expenses (except reasonable legal
costs awarded by a court) arising from the subject matter of
this Agreement; and
(b) The maximum liability of 3am Ideas to you is the lesser of:-
(i) the sum of Setup Fees and Management Fees you have
paid to 3am Ideas, or
(ii) the cost of re-supplying the online advertising services ; or
(iii) the cost of rectifying the online advertising problem
which has caused your loss.
17. These Terms and Conditions are governed by the law in
force in the State of Western Australia, Australia, and the
parties irrevocably submit to the nonexclusive jurisdiction
of the courts of Western Australia, Australia and courts of
appeal from them for determining any dispute concerning
the Terms and Conditions.
18. These Terms and Conditions can be modified at any time
by 3am Ideas. You agree to continue to be bound by these
Terms and Conditions as modified. We will publish the revised
Terms and Conditions on our website – we will not separately
notify you of these changes.
19. If the whole or any part of a provision of these Terms and
Conditions are void, unenforceable or illegal in a jurisdiction
then such part shall be severed for that jurisdiction. The
remainder of the Terms and Conditions have full force and
effect and the validity or enforceability of that provision in
any other jurisdiction is not affected. This clause has no effect
if the severance alters the basic nature of the Terms and
Conditions or is contrary to public policy.
20. You warrant to us that you will use the services provided
by 3am Ideas under this Agreement for business purposes
(and not predominantly personal, domestic or household
use).
21. To the extent that Copyright subsists in any
text that we create for your AdWords or Facebook
account/s pursuant to this Agreement; We assign
copyright in such text to you. For the avoidance of
doubt, this clause does not assign copyright in any
other materials that we may create for you outside
the scope of this Agreement.