Last Updated: 2021-03-12
These Terms and Conditions constitute part of the Agreement the Client enters into when the Client engages Timothy Rene King ABN 34 202 198 425 trading as HelloTimKing (‘HTK’) for any and all Work or Services.
Please read these Terms and Conditions carefully before signing and contact us if you have any questions.
These Terms and Conditions apply to all Work and Services provided to the Client by HTK.
Additional Services means any services HTK agrees to provide to the Client which are not included in the initial Proposal.
Agreement means the agreement entered into by the Parties for HTK to provide the Services including any Additional Services and the Client to pay the Estimate of Costs and comprises this document, the Estimate of Costs, the Proposal and any other documentation which sets out the terms of the Agreement.
Background IP means Intellectual Property rights owned by or licensed to a party as at the during the Time Frame, or acquired or developed by a party during the term of this agreement independently of the activities carried out under this Agreement, which that party has the right to license to third parties and which are necessary or desirable for the performance of the Services.
Client means the Client as indicated in the Estimate of Costs, its Related Body Corporates, employees and agents.
Confidential Information means all know how, Intellectual Property, business, financial, technical and other commercially valuable or sensitive information of a party in whatever form. This includes inventions (whether or not reduced to practice), trade secrets, methodologies, formulae, graphs, drawings, samples and any other materials or information which the party regards as confidential, proprietary or of a commercially sensitive nature that may be in the possession of that party or its Related Bodies Corporate or its or their employees or officers. Confidential Information of a party does not include information which:
- is now in the public domain, or enters the public domain after the Commencement Date, through no fault of the other party;
- can be shown by contemporaneous records of the other party to have been known to the other party at the time it is received pursuant to the Agreement;
- is provided to the other party by a third party after the Commencement Date, lawfully and without violating any restriction on its disclosure; or
- can be shown by contemporaneous records of the other party to have been independently developed by the other party without reference to the Confidential Information.
Estimate of Costs means the Estimate of Costs document provided to the Client with and outline of the estimated costs and disbursements for undertaking the Services.
Fees means the balance of the Estimate of Costs owing and includes any unpaid additional fees agreed between the parties.
Force Majeure Event means any event that is an act of God, act of Government, riot, war, strike, lockout, pandemic, epidemic, crisis, or other cause that could not have been prevented by a party taking reasonable steps.
HTK means Timothy Rene King trading as HelloTimKing, its employees and agents.
Intellectual Property means any rights to copyright, trade marks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields.
Project IP means all Intellectual Property created, conceived, developed or reduced to practice in the course of the performance of the Services but does not include Background IP.
Proposal means the initial Proposal provided by HTK to the Client which sets out the Services, scope of Work and deliverables.
Related Body Corporate has the meaning give to that term in section 50 of the Corporations Act 2001 (Cth).
Revision Period means the period of 14 days from HTK providing the Client with a first draft submission.
SEO Services means search engine optimisation services, if applicable and included in the Proposal.
Services means the Services provided by HTK in accordance with the Proposal.
Time Frame means the period for HTK to perform the Services as outlined in the deliverables section of the Proposal or as otherwise agreed.
Work means any part of the Services which is carried out by HTK.
2.1 HTK agrees to provide the Services to the Client in accordance with these Terms and Conditions.
2.2 HTK will provide the Services and present the Work to the Client in draft for review and comment.
2.3 The Client must provide any comments to HTK’s first draft of the Work within the Revision Period.
2.4 HTK will undertake any necessary revisions or proofreading in accordance with clause 3.2.
2.5 HTK will obtain the Client’s written approval before carrying out any additional work or incurring additional costs not included in the Estimate of Costs.
2.6 The Client must sign off on any Work before it is authorised to use, distribute or publish such Work, at which time it takes full responsibility for the Work and how it is used, distributed or published thereafter.
2.7 Face to face meetings or virtual meetings can take place at the Client’s request and will be charged in accordance with clause 3.5-3.6.
2.8 Any cancellation of meetings must take place in writing at least 24 hours before the meeting time. Failure to cancel within this period will result in the Client incurring the cost of the meeting which will be included in its final tax invoice.
3. ESTIMATE OF COSTS AND PROPOSALS
3.1 All Estimate of Costs and Proposals to provide the Services are valid for 30 days from the date they are provided to the Client.
- All Estimate of Costs and Proposals to provide the Services include:
(a) Two rounds of revisions at no extra charge.
(b) One round of professional proofreading at no extra charge.
3.3 This Estimate of Costs does not include (unless otherwise specifically stated):
(a) Liaison with other agents such as graphic designers or web developers.
- Meetings outside of the initial creative brief.
- Travel time for onsite meetings.
3.4 Any Additional Services are charged at an hourly rate of $70. This includes, but is not limited to,:
(a) any additional revisions or proofreading outside of the Proposal scope.
(b) any additional revisions or proofreading outside the Revision Period.
3.5 Any face to face meetings will be charged at an hourly rate of $40.00 and will include any necessary travel time.
3.6 Virtual meetings will be charged at an hourly rate of $30.00.
3.7 Any disbursements incurred by HTK in performing the Services (including couriers, other media, travel costs or other out of pocket costs) will be included in the Estimate of Costs if known at the time the Proposal is provided to the Client and shall be charged at cost to the Client as required. Disbursements will be itemised separately in the Client’s tax invoice.
3.8 HTK will seek consent from the Client before incurring any additional disbursements that are not included in the Proposal but which are required to be incurred in order for HTK to perform the Services.
3.8 If the Services are urgent and require a first-draft turnaround period of less than 72 hours, a rush loading fee of 25% on the Estimate of Costs will apply.
4.1 The Client must pay a non-refundable deposit of 50% of the Estimate of Costs before HTK performs the Services.
4.2 Where the Estimate of Costs is less than $250, the full Estimate of Costs amount is required to be paid by the Client before HTK performs the Services.
4.3 Where the client requires changes to the scope of the Services or Additional Work to be carried out, a further deposit will be payable upon receiving an Estimate of Costs for any revised or Additional Services before HTK performs the Additional Services.
4.3 HTK will issue a tax invoice to the Client within 7 days of HTK providing the first draft of the Work to the Client or when final sign off is given (whichever occurs first).
4.4 The Client must pay the Fees within 14 days of the date of the tax invoice.
4.5 HTK reserves the right to charge interest on any overdue Fees at a rate of 10% per annum.
4.6 Should the Client fail to pay the Fees by the due date and those Fees remain unpaid for a period of 60 days or more from the tax invoice date, HTK may appoint a third party recovery agent to recover the Fees and HTK will seek repayment by the Client for any additional costs or fees involved in the recovery process, including any legal expenses, if applicable.
4.7 All payments must be made by the Client via bank transfer in accordance with the banking details included on HTK’s tax invoice.
- CHANGES IN SCOPE
- The Client must request any changes to the Services or Additional Services in writing for HTK’s approval.
- Upon HTK approving the request for revised or Additional Services, HTK will provide the Client with an Estimate of Costs for the Additional Services before commencing the Work.
5.3 The Client acknowledges that any Estimate of Costs for Additional Services may cover time and expenses incurred by HTK to complete the Additional Services, or redevelopment of already created Work.
5.4 The performance, payment and general conduct of the revised or Additional Services will be carried out in accordance with the terms of the Agreement.
- SEO SERVICES
6.1 The SEO Services carried out by HTK will endeavour to increase visibility and search engine ranking of the Client’s webpage.
6.2 The Client acknowledges that its website ranking with a particular search term will rely on both the relevancy of that term on the Client’s pages, the popularity of that term on other websites, and the relevance of back-links to the Client’s website for the search term.
6.3 HTK will use its best endeavours to increase the visibility and traffic to the Client’s webpage, however, the client acknowledges that increased traffic to the Client’s webpage or specific search engine results sought by the Client are not guaranteed.
6.4 The client acknowledges that search engine providers change ranking algorithms on a regular basis, and new sites and competitor sites may be being optimised and submitted continually. It is possible for the Client’s website’s rankings to decrease as a result of the SEO Services, however the Client acknowledges this is the Client’s risk and indemnifies HTK against any loss, damage, liability, actions or claims and will not attempt to seek any refund or discount in respect of the Deposit or Fee paid.
6.5 The Client acknowledges that the results of the SEO Services can take at least 2-3 months to show some significant effect. Achieving stable high rankings can take up to 6-12 months.
- The Client agrees:
- to grant authority to HTK to submit the website pages being promoted to search engines and directories;
- to inform webmasters or anyone else who has access to the Client’s website pages that HTK is performing SEO services on the website pages.
- to allow implementation of all optimisation strategies on the Client’s website pages.
- that it is responsible for ensuring that the Client’s website is always active and accessible to enable HTK to perform the SEO Services.
- TIME FRAMES
- The Client agrees to provide HTK with any required documentation within 7 days of receipt of the Estimate of Costs, to enable HTK to perform the Services.
- HTK will deliver the Services to the Client within the Time Frame.
7.3 If the Client fails to provide any required documentation in accordance with clause 7.1, HTK will not commence the Services until the required documentation is received which will delay the deliverables outlined in the Proposal being achieved within the Time Frame and therefore an extension of the Time Frame will be required at HTK’s discretion.
7.4 In the event that HTK is unable to provide the Services within the Time Frame, it will advise the Client as soon as possible of any foreseeable delays in providing the Services within the Time Frame.
8.1 The Client is required to nominate one primary contact for all revisions and contact throughout HTK’s performance of the Services.
9.1 Failure for the Client to communicate with or respond to HTK for a period of 30 days or more, will result in termination of the Services and the issuing of a tax invoice to the Client for the Fees incurred in respect of the Services performed to that date.
9.2 The Client may terminate the Agreement at any time by providing written notice to HTK by email. If the Client terminates the Agreement, HTK will provide a tax invoice to the Client for the Fees incurred in respect of the Services performed to that date.
9.3 HTK may terminate the Agreement at any time by providing written notice to the Client by email. If HTK terminates the Agreement, it will provide a tax invoice to the Client for the Fees incurred in respect of the Services performed to that date.
9.4 Upon termination or expiry of the Agreement, HTK will immediately return any documentation provided to it by the Client.
- Each party may use and disclose the Confidential Information of the other party solely to the extent necessary for the performance of the Services or development or supply of the Project Materials in accordance with this Agreement.
- Each party must:
- not use, and ensure that its employees, officers and agents do not use, any Confidential Information of the other party for any purpose other than compliance with its obligations under this Agreement;
- take all action necessary to maintain the confidential nature of the Confidential Information of the other party, including keeping all records of that Confidential Information under lock and key or password protection;
- not disclose any of the Confidential Information of the other party to any person other than those of its employees who need to have access to that Confidential Information for the purpose of performing the Services or developing or supplying the Project Materials in accordance with this agreement, who are aware of the requirements of this agreement, and who are bound by an enforceable obligation of confidentiality; and
- destroy all documents and system credentials, being any information required to allow access to the Client’s systems and other materials in whatever form in its possession, power or control which contain or refer to any Confidential Information of the other party, on the earlier of expiry or termination of this agreement, demand by the other party or the time they are no longer required for the purpose of providing the Services or developing or supplying the Project Materials in accordance with this agreement.
- Each party may disclose Confidential Information of the other party if legally compelled to do so by a judicial or administrative body. However, it must take all reasonably available legal measures to avoid such disclosure, and notify the other party as soon as practicable after such disclosure is ordered so that the other party may seek an appropriate protective order or other remedy.
- Each party acknowledges that due to the proprietary and competitively-sensitive nature of the Confidential Information of the other party, the other party would be irreparably harmed by any actual or threatened breach of this clause 10., and that monetary damages would be insufficient to remedy such actual or threatened breach.
10.5 The Client agrees to HTK using the Works produced for its promotional purposes unless a separate Non-Disclosure Agreement precluding this has been entered into by the parties.
10.6 HTK reserves the right to refer to, display, post online or otherwise use the Work, the Client’s business name, logo and content to promote HTK’s business services or for other promotional, marketing or educational purposes unless the Client advises HTK in writing prior to the final sign off of the Work by the Client that permission is expressly denied.
- INTELLECTUAL PROPERTY
- Each party acknowledges that all Background IP remains the sole property of its owner. Each party acknowledges that it acquires no right, title or interest in or to the Background IP of the other party by virtue of this agreement or the disclosure or use of the Background IP in the course of the performance of the Services, other than as expressly set out in the Agreement.
- Each party grants to the other party a non-exclusive, royalty-free, non-transferable licence to use the Background IP owned by it to the extent necessary and for the sole purpose of the performance of the Services for the Time Frame.
- All right, title and interest in the Project IP vests in HTK until the Client’s tax invoice is paid in full and the Client signs off on the Work, at which time the Project IP is assigned to the Client with effect from its creation.
- HTK will promptly and fully disclose, provide and transfer all Project IP to the Client upon payment of its tax invoice in full.
- HTK takes no responsibility for the Work and how it is used once the Client has signed off on the final draft.
- WARRANTIES & INDEMNITIES
- The Client warrants that:
- any information provided to HTK is true, correct and accurate and complies with all applicable laws, regulations and requirements;
- all information provided to HTK has been thoroughly researched and does not contain any false or misleading information;
- all Work that the Client signs off on or approves is true, correct, accurate, free from errors and complies with all applicable laws, regulations and requirements and does not contain any false or misleading information;
- where applicable, the Client has sought legal advice and advice from any other relevant industry body as to the legality, accuracy and appropriateness of the information being provided to HTK and the final Work produced by HTK before publication;
- it has appropriate disclaimers on its website pages to ensure limited liability.
- The Client warrants that:
12.2 HTK warrants that:
(a) the Work produced will not infringe on any copyright or other right of a third party;
(b) it will perform the Services with a high standard of care and diligence and in accordance with all applicable laws, regulations, codes and practices.
12.3 The Client releases and indemnifies HTK from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether under common law, tort, in equity, pursuant to statute or otherwise, in respect of any loss or damage arising out of a breach of the Agreement, any Work produced or the Services performed, any use or reliance on the Work or the Services by any person, or any negligent act, omission, or wilful misconduct of the Client and from and against all damages, reasonable costs and expenses incurred in defending, satisfying or settling any such claim, proceeding or demand.
13. FORCE MAJEURE
13.1 If by reason of any Force Majeure Event either party is unable to perform in whole or in part any obligation under the Agreement:
- that party is relieved of that obligation under the Agreement to the extent and for the period that the party is unable to perform such obligation; and
- that party will not be liable to the other party to the Agreement for failure to perform such obligation to the extent and for the period of non-performance contemplated by this clause.
14.1 The Agreement constitutes the entire agreement and understanding of the parties and supersedes any previous agreement between the parties.
14.2 No delay or indulgence by a party in enforcing this agreement will prejudice or restrict the rights of that party, nor will a waiver of those rights operate as a waiver of a subsequent breach.