1. Acceptance. A copy of these terms and conditions must be accepted and acceptance noted on the proposal by all new Clients at the time of submission of work to M2, indicating agreement to and acceptance of these Terms and Conditions.
2. Charges. Charges for web development services to be provided by M2 are defined in the project proposal. All website design services require an advance payment of a minimum of twenty five percent of the project proposal total when returning the signed agreement. The remaining seventy five percent of the project proposal total will be due immediately upon completion of the work, except in cases where a payment plan has been agreed upon. The fee will be for the agreed work outlined in our final proposal. The Client will be asked to approve site plan, navigation, content and design at agreed stages. If, after such approval, the Client makes any changes to the website that affects the navigation of the site, the design or layout of individual pages M2 reserves the right to charge our time at the rate of $180 including GST per hour.
3. Payment terms. Invoices will be provided by M2 upon completion of the work and prior to any deposit due if requested. Final invoices are sent when the website has been completed and uploaded to the internet and are due within 30 days. Accounts that remain unpaid thirty (30) days after the date of the invoice will be assessed a clerical service charge in the amount of five dollars ($5) monthly.
Accounts unpaid sixty (60) days after the date of invoice will be considered in default and as a result, M2 at its discretion, may suspend the account causing temporary removal of the website. Removal of such does not relieve the Client of the obligation to pay any outstanding charges assessed to the Client’s account.
Cheques returned for insufficient funds will be assessed a return charge of $35 and the Client’s account will immediately be considered to be in default until full payment is received. Clients with accounts in default agree to pay M2 reasonable expenses, including attorney fees and costs for collection by third-party agencies, incurred by M2 in obtaining payment.
If a website development invoice remains unpaid 6 months after completion, then the site at M2's discretion can be taken down, sold or taken over by M2 to recuperate costs. M2 may also choose to hand the debt over to a collection agency, and only after the website development is paid in full including any late fee amounts will the site be handed over to the Client.
If only hosting invoices remain unpaid for 6 or more months, and after reasonable negotiation with between M2 and the Client, payment is still not forthcoming, then the debt will be handed to a collection agency and the site will be taken down. Only once paid will the site be handed over to the Client, and the Client will need to find alternate hosting.
4. Termination. Termination of services from M2 by the Client must be requested in a written notice and will be effective on receipt of such notice. Notice of Request for change of hosting is required 1 month prior to hosting change. Hosting charges will end 1 month after notification of such. The Client agrees to be responsible for payment for design work completed to the date of first notice of cancellation for payment in full within thirty (30) days.
5. Legal Restrictions. M2’s services may be used for lawful purposes only. Submission, transmission, or maintenance of any information or materials in violation of any state or federal statutes and/or regulations is prohibited. This includes, but is not limited to, material legally judged to be threatening racist or obscene. M2 reserves the right to refuse service to the Client without providing reason or cause.
6. Copyright. All content supplied by the Client will be assumed third party copyright free. M2 cannot accept responsibility for any copyright issues arising from improper use of copyrighted images or content.
7. Standard Media Delivery. In the case of non-responsive design, websites will be designed optimised for 1024 x 768 screen resolution and catering for higher. In the case of responsive design, websites will be designed optimised for any screen resolution. This will be noted in the proposal.
No site is guaranteed to be printable without a dedicated printable version of any specific page.
Unless otherwise specified in the project proposal, this Agreement assumes that all text will be provided by the Client in electronic format (text files or Email or MS Word document delivered via email) if M2 is to insert web page content. In the case where a Content Management System (CMS) site is produced, M2 will insert some of the page content for free, and the Client is to insert the rest, unless a data entry fee is negotiated, as specified in the project proposal. All graphics need to be provided electronically in .gif, .jpg, .png or .tiff format.
Additional (to proposal) expenses may be incurred for corrective work, conversion of media or outside facility charges. The scope of the work will be defined by the project proposal.
The proposal will clearly outline what is to be delivered. If any items are missing M2 needs to be informed prior to signing these terms to enable supply of a new proposal with inclusion of missing items. The project proposal quoted amount will not cover any items that have not been specified or are missing from the proposal at the time of proposal acceptance.
Changes to Client's business during project timeline which necessitate changes to already created work will incur an extra charge according to time spent at our current hourly rate of $180 per hour including GST.
8. Design Credit. M2 reserves the right to include a discrete link back to www.mediatwo.com.au from the Client's website stating "Site by Media Two”. This design credit is to remain on the site unless the editing of the site has been taken over by another party and the design appearance of the site has changed by over 90% from its original look as provided and designed by M2. M2 must be in acceptance of the removal and notified in event of its change so that the site can be removed from the portfolio on the M2 Website. In cases where the site's graphic design has been supplied by a third party, the designer will be credited, and the M2 credit will state "Site development by Media Two".
9. Intellectual Property. The Client retains IP of the site. Unless design copyright is signed over to the Client, M2 retains copyright of any design or coding that is created by M2, excluding elements formed directly from the Client’s logo or branding imagery or facets of their corporate identity. The Client can use and re-use the design elements created for the site in an unlimited fashion for the site and any other graphical online internet-displayed purposes only. Styles and designs created in the production of the website design may not be used in other material for the Client’s advertising unless permission is given by M2. An extra design fee will be due for the multiple use of design features.
The Client accepts that they do not have exclusive rights to any regenerative code used in the development of the website. The Client does not have any ownership of the code used in the site, they can not copy, modify, lease or sell the code without explicit permission. Sale of the website by the owner transfers the use of the site only but the copyright and ownership of the code used by the site remains with Media Two and/or partners/contractors.
The Client agrees to remove any reference to M2 (including the link) should M2 deem the site to no longer be representative of M2's design style and quality.
10. Right To Pull. By signing this Agreement, the Client agrees to give M2 access to the Client’s installed website, (FTP access) and further agrees that M2 shall have the right to alter that site for failure to adhere to item 8 or 9 of these terms or remove from public posting for unresolved and continued failure to adhere to item 3.
11. Post-Placement Alterations. M2 cannot accept responsibility for any alterations caused by a third party occurring to the Client’s pages once uploaded and live. Such alterations include, but are not limited to additions, modifications, or deletions.
12. Indemnity. The Client agrees to indemnify M2 from any and all claims resulting from the Client’s use of M2’s services which cause damage to the Client or a third party, including any direct, indirect or consequential damages, loss of data resulting from delays, non-delivery or interruption in service or for actions resulting from unauthorised hacking into any Website or online database created by us, or from the misuse of any content management system provided by us. The Client acknowledges and agrees that M2 cannot guarantee the absence of service interruptions caused by Acts of God or other circumstances beyond the control of M2.
13. Hosting. Any website hosted by Media Two may never include third party software, or any open source web software or any off-the-shelf systems such as but not limited to WordPress. If any Client has FTP access to their site and uploads 3rd party software or any kind, M2 reserves the right to instantly terminate their hosting account. This item is to guard against potential hacking of our hosting server.
Hosting is billed monthly unless otherwise arranged. Payment for the month is required within 2 weeks of issue of the invoice for that month. If a hosting account remains unpaid after one month from date of invoice, M2 reserves the right to suspend the hosting account until payment is received.
Click here for detailed hosting terms.
14. General. These Terms and Conditions supersede all previous representations, understandings or agreements. There may be exceptions to these terms specifically outlined in the project proposal. The Client’s signature below constitutes agreement to and acceptance of these Terms and Conditions. M2 reserves the right to change the terms and conditions of the acceptance of future orders for authoring and placement of the Client’s pages. These Terms and Conditions are not negotiable.
15. Governing Law. This Agreement shall be governed by the laws of Australia, which shall claim venue and jurisdiction for any legal motion or claim arising from this Agreement.
You indicate acceptance of these terms and conditions of service by placing a hosting order with Media Two (M2). These terms and conditions will not be varied for individual customers.
1 SOFTWARE LICENCE AND RIGHTS
1.1 If the Client requires use of software owned by or licensed to M2 ("Media Two's software") in order to use the Services, M2 grants to the Client and its employees, agents and third party consultants and contractors, a royalty-free, world-wide, non-transferable, non-exclusive licence to use M2 Software in object code form only, in accordance with the terms of this Agreement. For the avoidance of doubt, this Agreement does not transfer or grant to the Client any right, title, interest or intellectual property rights in M2 Software.
1.2 In relation to Media Two's obligations under this Agreement in connection with the provision of the Services, the Client grants to M2 a royalty-free, world-wide, non-exclusive licence to use the Client Software and all text, graphics, logos, photographs, images, moving images, sound, illustrations and other material and related documentation featured, displayed or used in or in relation to the website ("the Content"). For the avoidance of doubt, this Agreement does not transfer or grant to M2 any right, title, interest or intellectual property rights in the Client Software or the Content.
1.3 The Client undertakes that he will not himself or through any third party, sell, lease, license or sublicense M2 Software.
1.4 M2 may make such copies of the Client's content as may be necessary to perform its obligations under this Agreement, including back up copies of the content. Upon termination or expiration of this Agreement, M2 shall destroy all such copies of the content and other materials provided by the Client as and when requested by the Client.
2 SERVICE LEVELS AND DATA BACKUP
7.1 M2 shall use its reasonable endeavours to make the server and the services available to the Client 100% of the time but because the services are provided by means of computer and telecommunications systems, M2 makes no warranties or representations that the service will be uninterrupted or error-free and M2 shall not, in any event, be liable for interruptions of Service or downtime of the server.
7.2 M2 carries out data backups for use by M2 in the event of systems failure. M2 do not provide data restoration facilities for individual customers. Even though every effort is made to ensure data is backed up correctly M2 accepts no responsibility for data loss or corruption.
8 ACCEPTABLE USE POLICY
8.1 The website and use of the services may be used for lawful purposes only and the Client may not submit, publish or display any content that breaches any law, statute or regulation. In particular the Client agrees not to:
8.1.1 use the Services or the website in any way to send unsolicited commercial email or "spam", or any similar abuse of the services;
8.1.2 send email or any type of electronic message with the intention or result of affecting the performance of any computer facilities;
8.1.3 publish, post, distribute or disseminate defamatory, obscene, indecent or other unlawful material or information, or any material or information which infringes any intellectual property rights (for the avoidance of doubt this includes licensed software distributed as Warez), via the services or on the website;
8.1.4 threaten, abuse, disrupt or otherwise violate the rights (including rights of privacy and publicity) of others;
8.1.5 engage in illegal or unlawful activities through the services or via the website;
8.1.6 make available or upload files to the website or to the services that the Client knows contain a virus, worm, trojan or corrupt data; or
8.1.7 obtain or attempt to obtain access, through whatever means, to areas of Media Two's network or the services which are identified as restricted or confidential. This includes leaving your home directory whilst using SSH access to servers.
8.1.8 operate or attempt to operate IRC bots or other permanent server processes.
10.1 The Client warrants and represents to M2 that M2's use of the content or the Client software in accordance with this Agreement will not infringe the intellectual property rights of any third party and that the Client has the authority to license the content and the Client software to M2 as set out in clause 6.2.
10.2 All conditions, terms, representations and warranties that are not expressly stated in this Agreement, whether oral or in writing or whether imposed by statute or operation of law or otherwise, including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded. In particular and without prejudice to that generality, M2 shall not be liable to the Client as a result of any viruses introduced or passed on to the Client.
The Client agrees to indemnify and hold M2 and its employees and agents harmless from and against all liabilities, legal fees, damages, losses, costs and other expenses in relation to any claims or actions brought against M2 arising out of any breach by the Client of the terms of this Agreement or other liabilities arising out of or relating to the website.
12 LIMITATION OF LIABILITY
12.2 The entire liability of M2 to the Client in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the charges paid for the services under this Agreement in respect of which the breach has arisen.
12.3 In no event shall M2 be liable to the Client for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply even where such a loss was reasonably foreseeable or M2 had been made aware of the possibility of the Client incurring such a loss.
13 TERM AND TERMINATION
13.1 This Agreement will become effective on the date the service is ordered and shall continue until terminated by either party in writing of its intention to terminate the Agreement.
13.2 M2 shall have the right to terminate this Agreement with immediate effect by notice in writing to the Client if the Client fails to make any payment when it becomes due.
13.3 Either party may terminate this Agreement forthwith by notice in writing to the other if:
13.3.1 the other party commits a material breach of this Agreement and, in the case of a breach capable of being remedied, fails to remedy it within a reasonable time of being given written notice from the other party to do so; or
13.3.2 the other party commits a material breach of this Agreement which cannot be remedied under any circumstances; or
13.3.3 the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order to that effect; or
13.3.4 the other party ceases to carry on its business or substantially the whole of its business; or
13.3.5 the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; or a liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
13.4 Any rights to terminate this Agreement shall be without prejudice to any other accrued rights and liabilities of the parties arising in any way out of this Agreement as at the date of termination.
13.5 On termination all data held in the customer's account will be deleted.
M2 is not responsible for Client programming issues other than ensuring that programming languages such as PHP are installed and functioning on the hosting server.
To protect your privacy we will not distribute your details to third parties, unless required to do so by law.
23 DATA TRANSFER
23.1 Web hosting accounts include a certain amount of data transfer according to package chosen or applicable, if you exceed this amount in any one month your account will be deactivated until you have upgraded to an account that has more data transfer included, or until the next month period commences.
23.2 Web hosting accounts are prohibited from hosting file distribution websites (including but not limited to music, video and software), adult content orientated websites, hosting banners, graphics or cgi scripts for other websites, storing pages, files or data as a repository for other websites or personal computers, giving away web space under a domain, subdomain or directory.
24 SERVER USAGE
Should your account use more than 5% of the server's processing power and as a result have a detrimental effect on other customers, we will discuss with you alternative solutions for your hosting requirements.
25 WEBSPACE USAGE
Unlimited web space is available for genuine website content; content must be linked into web pages. Clients are prohibited from using the server as a file/backup repository. Clients are expected to employ good house keeping when maintaining their account.
Explanation of Intellectual Property:
This clause is there basically to protect us from companies taking our design and using it without us getting some kind of credit or return. The design of the site and its copyright excludes the design of your company's corporate image and logo, which already exists. The default situation is the creator of a design holds the copyright to it unless agreed otherwise by the creator and the recipient of the design.
Industrial designs are what make an article attractive and appealing; hence, they add to the commercial value of a product and increase its marketability.
When an industrial design is protected, the owner - the person or entity that has created the design - is assured an exclusive right against unauthorised copying or imitation of the design by third parties. This helps to ensure a fair return on their investment of skill and time. It also benefits consumers and the public at large, by promoting fair competition and honest trade practices, encouraging creativity, and promoting more aesthetically attractive products.
By using a website design in flyers for example, so that the actual design of the overall site is used in the flyer (not the design of your corporate image, for which you hold the copyright) you would in effect be getting a flyer design (or the aesthetic design of the flyer) done for nothing.
A contractor NEEDS to own the copyright to code they write. If the contractor uses the same code (regenerative code) on another site, and they didn't own the copyrights, the first customer could sue the contractor.
The contractor would own the copyrights, but the customer would own a license to use their copy of the code any way they choose, unless you have a separate license agreement, which would regulate the terms and conditions of the license.
Of course designing sites - HTML, interface and graphics - is not quite the same thing as writing software or scripts. In some cases with design the Client can be better off with the designer retaining copyright because if there's an infraction they wouldn't begin to know what to do.