Services Terms & Conditions

BACKGROUND 

  1. In consideration of the Client paying the Fees to MK, MK has agreed to provide the Services to the Client.
  2. The Client wishes to appoint MK, and MK is willing to accept such appointment on the terms and conditions set out in this Agreement.
  3. MK will provide the Services to the Client on the Services Date.

 OPERATIVE PART

  1. Definitions
    1. The meanings of the terms used in this document are as follows:
      1. Agreement means this agreement, as validly varied from time to time;
      2. Cancellation Fee means a portion of the Deposit, as determined by MK (and which may be the entire Deposit);
      3. Client means the person, organisation or corporation engaging the Services of MK;
      4. Client’s Related Parties means the parties who will also be involved in the provision of the Services at the request of the Client, and includes (but is not limited to) the Client’s employees, contractors or agents, details of whom are to be provided to MK as and when required by MK in accordance with this Agreement;
      5. Confidential Information includes but is not limited to any information marked as confidential and any information (including presentations, resources, handouts etc.) received by the Client in the provision of the Services by MK;
      6. Data Breach means any unauthorised access, modification, disclosure or other misuse or interference of any data, information, records or other part of any software and/or IT system which the Client uses and including (but not limited to) those which MK has access to in providing the Services and during the Term;
      7. Default Interest Rate means 5% per annum;
      8. Deposit means 50% of the Fees payable in accordance with this Agreement;
      9. Fees means the fees payable for the Services carried out by MK for the Client, as indicated on the tax invoice provided by MK to the Client;
      10. Location means the venue and/or location at which the Services are being provided;
      11. MK means Madeknown Pty Ltd ACN 160 358 127 trading as ‘MadeKnown’ ABN 54 160 358 127;
      12. Payment Date means the date the Fees must be paid to MK as indicated on the tax invoice provided by MK to the Client;
      13. Personnel means MK’s employees, contractors or agents;
      14. Services means the services outlined in any tax invoice, fee estimate or other communication given by MK to the Client;
      15. Services Date means the date or dates as advised by MK to the Client;
      16. Term means the timeframe specified in any estimate of fees or other correspondence given by MK to the Client;
      17. Website means the final product created and designed by MK.

  2. Provision of the Services
    1. MK agrees to provide the Services to the Client in accordance with the terms and conditions of this Agreement, subject to the Client having provided MK with all required information and/or documentation required by MK in order to provide the Services.
    2. The parties may agree to the Services being provided on alternate or additional Services Date, provided such agreement is made between the parties in writing.
    3. MK will be available to provide the Services at the times advised by MK and agreed to by the Client (with both parties to act reasonably in agreeing to mutually-acceptable times).
    4. The Client agrees to commence the project within 1 month of signing the Agreement. The Client acknowledges and agrees that if they delay completion of the project for more than 6 months, additional fees may be incurred and the estimated fees may change.
    5. The scope of the Services is strictly limited to those services described in Item 2 of the Reference Schedule, unless otherwise agreed between the parties in writing from time to time.
    6. Provided that the Client complies with their obligations under this Agreement, MK agrees to use all reasonable endeavours to provide the Services on the Services Date and comply with any relevant timeframes that have been agreed between the parties.
    7. MK warrants that they will provide the Services using due care and skill, as expected from a comparable service provider.
    8. Any specific terms and requirements which may affect MK’s delivery of the Services to the Client and/or the Client’s Related Parties must be communicated by the Client to MK in writing prior to MK delivering the Services to the Client, including but not limited to details and information in relation to the Client’s Related Parties as requested by MK from time-to-time.
    9. The Client acknowledges and agrees that the Services will be provided by MK in the format determined by MK from time-to-time (including but not limited to, in person and/or using online or virtual means).
    10. The Services are strictly non-transferrable and MK will not provide the Services for the benefit of anyone other than the Client or the Client’s Related Parties, in accordance with this Agreement.
    11. Further to clause 9, the Client is prohibited from contacting or dealing with any Personnel directly for the provision of any services which are of the same or a similar nature to the Services for a period of twenty-four (24) months after expiration or termination of this Agreement. This clause survives the expiration or termination of this Agreement.
    12. MK may give the Client and/or the Client’s Related Parties a maximum of three (3) opportunities to review draft versions of the project, before incurring additional costs.
    13. MK may give the Client and/or the Client’s Related Parties a maximum of three (3) opportunities to review pdf draft versions of the Website, and this will be the Client’s only opportunity to require any changes prior to a live draft being delivered to the Client. Once a live draft has been delivered to the Client, the Client has a maximum of three opportunities to review the content and functionality. Any structural changes after the website is built may incur additional costs and the Client agrees to this.
    14. The Client will promptly provide all reasonable information required by MK (including, but not limited to, notes from client appointments and meetings, relevant passwords, logins and any necessary instructions to allow remote access to the Client’s server) (the Client Information) in order to allow MK to provide the Services by the Services Date. The Client acknowledges and agrees that if they delay, or fail to, supply MK with the Client Information, then MK may be unable to perform the Services by the Services Date or at all. MK will not be liable for any delay in the provision of Services caused by the Client’s failure to comply with the obligations contained in this clause.
    15. If any person makes any claim alleging that the Client Information or any use of it by MK in accordance with this Agreement, infringes any intellectual property right or any other right of any person, the Client must indemnify and hold harmless MK from and against any such claim and from and against any loss (including legal fees on an indemnity basis) arising in connection with such claim/s.
  3. Proofs
    1. Proofs are available for inspection and approval by the Client upon request.
    2. MK will accept no responsibility or liability for the following:
      1. Any errors found after the proofs have been examined and approved by the Client.
      2. Any materials which the Client has approved, instructed, or given artistic licence to the designer to use.
      3. Any spelling or grammatical errors appearing in the product and copy, after the proof has been submitted and approved by the Client.

    3. Proofs are deemed to be accepted at the point of receipt, whether or not signed by the Client. Proofs are NOT colour calibrated and, as such, no responsibility will be taken for any deviation from or difference to the final product, from that of the supplied proofs. Screen Proofs should be used for layout and proofreading purposes only. Screen proofs should not be taken as an accurate colour proof due to screen colours varying from monitor to monitor. Instructions and orders taken over the telephone will be accepted only by MK at the Client’s risk and responsibility.
  4. Fees
    1. In consideration of MK providing the Services, the Client must pay all Fees, including the Deposit, on or before the Payment Date in the manner and method as determined by MK from time-to-time.
    2. If the Client is required by MK or chooses to pay the Fees by way of direct debit, the Client is required to:
      1. hold and have unrestricted access to a bank account that:
        1. at all times has sufficient funds required to pay all amounts required in relation to the Services; and
        2. allows for one off and recurring direct debit withdrawals (Direct Debit Withdrawals); and

      2. do all things reasonably required to allow the Direct Debit Withdrawals to occur providing any direct debit service provider with all the required information and documents, as and when required.
    3. MK will not be responsible for any penalties incurred as a result of unsuccessful Direct Debit Withdrawals and any penalty will be the Client’s responsibility.
    4. MK may, in their discretion, require payment of the Fees or the Deposit upfront, prior to providing the Services to the Client.
    5. MK will issue the Client with a tax invoice for the Fees, prior to any Payment Date and the Client will be required to make payment of those tax invoices within fourteen (14) days of the date of the tax invoice.
    6. Any disbursements (including fees, charges, costs etc.) incurred as a result of MK providing the Services to the Client must be paid for by the Client in accordance with any applicable payment terms. MK will not be liable for any such disbursements.
    7. In the event that the Client fails to pay any tax invoice within the specified timeframe, MK may:
      1. charge the Client late payment fees, the Cancellation Fee or the Deposit as determined by MK in their sole discretion;
      2. charge the Client interest at the Default Interest Rate on any outstanding amount;
      3. immediately cease providing the Services to the Client and/or the Client’s Related Parties;
      4. terminate this Agreement immediately without notice; and/or
      5. commence proceedings against the Client in order to collect any outstanding debts owed to MK.
    8. In respect of any taxable supply made under this Agreement, the Client must pay to MK an amount equal to the prevailing GST rate, payable at the same time and in the same manner as the Fees, subject to the receipt by the Client of a valid tax invoice.
    9. In the event that the Client wishes to cancel the Services before a Services Date, they must notify MK in writing immediately. The Client acknowledges and agrees that MK may impose the Cancellation Fee or retain the Deposit (in MK’s sole discretion) for any cancellation.
    10. The Client and MK agree and acknowledge that the Cancellation Fee represents a genuine pre-estimate of the loss suffered by MK resulting from any cancellation referred to in clause 9.
    11. In the event that the Client wishes to make changes to the Services, they must notify MK in writing immediately and MK may or may not be in a position to accommodate the changes. In circumstances where MK can accommodate changes to the Services, MK may charge the Client additional fees.
    12. In the event that MK needs to cancel the Services, MK will provide the Client with reasonable notice and if the Services cannot be rescheduled to be provided at another time, MK will provide a full refund of any Fees paid by the Client to MK in relation to the cancelled part of the Services, and this will be the Client’s only remedy should MK cancel the Services.
  5. Client Acknowledgements and Obligations
    1. The Client acknowledges and agrees that:
      1. they will obtain the consent of all of the Client’s Related Parties (including parents and/or guardians of minors, where applicable) to the Services being provided by MK to the Client’s Related Parties, and such consent is deemed to have been received by the Client, unless otherwise communicated by the Client to MK;
      2. MK may provide advice on suitable third party providers (such as website hosts, payment and shipping providers, existing plugin and theme libraries etc) however the Client must make their own enquiries as to the suitability of any third party providers and must not make any claim against MK in any way related to the Client’s use of such recommended or suggested third party providers;
      3. the Client will provide all relevant documentation and information required for MK to provide the Services to the Client in a timely manner;
      4. if they delay, or fail to, supply MK with any information requested, then MK may be unable to perform the Services in the agreed timeframe or at all;
      5. if the Client nominates a Location for the services and MK agrees to that Location, the Client will, prior to the Services Date:
        1. make all reasonable enquiries and take reasonable measures to ensure that the Location is a safe and stable environment for MK and/or MK’s Personnel;
        2. if there is anything at the Location that the Client believes may pose a risk to MK and/or MK’s Personnel, notify MK prior to MK and/or MK’s Personnel attending the Location;
        3. hold all applicable insurances, including but not limited to public liability insurance (with minimum coverage of at least $20 million per occurrence) and will provide proof of same to MK as and when requested;
      6. they are responsible for all of their own and the Client’s Related Parties’ personal property and/or belongings at the Location and that MK will not be responsible for any loss or damage of any such personal property;
      7. they will, and the Client’s Related Parties are required to, cooperate with MK and follow all reasonable directions of MK whilst MK is providing the Services;
      8. they will act with the utmost good faith in all dealings with MK and MK’s Personnel;
      9. MK will provide the Services based solely on information provided by the Client and in accordance with the terms and conditions of this Agreement;
      10. any behaviour that is inappropriate such as verbal or physical abuse will not be tolerated, and MK may cancel the services and charge the Cancellation Fee if MK deems the behaviour of any person to be inappropriate or unacceptable;
      11. if the Client becomes aware of anything that may affect the Client’s ability and/or the Client’s Related Parties’ ability to receive the Services or MK ability to provide the Services to the Client and/or the Client’s Related Parties, the Client must notify MK in writing and following such notification, MK will notify the Client of the new or varied terms (if any) of this Agreement. Such variations can then be accepted by the Client by:
        1. signing a new Agreement (if MK submits a new Agreement to the Client for signing); or
        2. otherwise in writing provided to MK; or
        3. by continuing to instruct MK (including failing to immediately withdraw their instructions to MK); and any variation will always be subject to these Terms.
  6. Photos and Videos
    1. The Client acknowledges and agrees that the Website may be based on:
      1. images or videos of the Client and/or the Client’s Related Parties given to MK by the Client either in-person, by post or by any electronic form of multimedia sharing (including email); or
      2. images or photos of the Client and/or the Client’s Related Parties taken by MK, (collectively, the Photos and Videos).
    2. The Client consents to MK’s use of the Photos and Videos for marketing and promotional purposes on MK’s website and/or social media pages, unless the Client has specifically notified MK at the time of entering into this Agreement that the Client and/or the Client’s Related Parties do not consent to the use of the Photos and Videos.
  7. Intellectual Property
    1. The Client acknowledge that all trademarks, patents, copyright, processes, know-how, registered designs or other like rights or any right to apply for registration of any of the former (the Intellectual Property) that are in any way connected with the delivery and performance of the Services pursuant to this Agreement are owned by MK.
    2. Notwithstanding the above, the Client and MK agree that the upon completion of the Services referred to in this Agreement, ownership of the final product created and any Intellectual Property that is created from it, will vest in the Client. For clarity, all Intellectual Property relating to the creation of that product (for example, the starting framework and coding of that product) will remain owned by MK.
    3. For the avoidance of doubt, the Client will be required to take all reasonable steps to ensure that the Client’s Related Parties also strictly adhere to the obligations outlined in clauses 7.1 and 7.2 and the Client will be solely responsible for any of the Client’s Related Parties that breach clauses 7.1 and 7.2.
    4. Clauses 7.1, 7.2 and 7.3 survive termination or expiry of this Agreement.
  8. Confidential Information
    1. Depending on the scope of the Services, MK may require the Client to, and the Client hereby agrees, to execute a non-disclosure agreement.
    2. The Client acknowledges that the Confidential Information shall at all times be and remain the property of MK and must not be disclosed to any third party at any time, except:
      1. with the prior consent of MK; or
      2. where the Client is required by statute, rule, regulation, judicial process or in connection with any litigation to which it is a party.
    3. The Client must not reproduce or use any Confidential Information or any part of the Services for purposes which are inconsistent with the scope of the Services or which may be detrimental to MK in any way.
    4. For the avoidance of doubt, the Client will be required to take all reasonable steps to ensure that the Client’s Related Parties also strictly adhere to the obligations outlined in clauses 8.1 and 8.2 and the Client will be solely responsible for any of the Client’s Related Parties that breach clauses 8.1 and 8.2.
    5. Clauses 8.1, 8.2 and 8.3 survive termination or expiry of this Agreement.
  9. Compliance with Privacy Laws
    1. MK agrees to take all reasonable steps required to protect personal information in MK’s possession or control against misuse, interference, loss and unauthorised use, access, modification or disclosure.
    2. MK warrants that MK complies with privacy laws in relation to the use, storage, transfer and other dealings with personal information obtained pursuant to or in any way connected with this Agreement.
    3. The Client warrants that it is their responsibility to ensure all personal and confidential information within their system (including, but not limited to, personnel and client data and information) is kept in accordance with applicable privacy laws, and to the extent such information is not the Client will take steps to restrict MK from being able to access or view that information.
  10. Liability and Indemnity
    1. The following limitations of liability apply:
      1. the Client acknowledges and agrees that MK will not be liable to the Client, the Client’s Related Parties and/or any other persons for:
        1. the actions or behaviour of any other person present in the provision of Services, specifically including that of the Client’s Related Parties; and/or
        2. any Data Breach, whether or not the cause of the Data Breach is in connection with the Services being provided by MK; and/or
        3. any loss or damage of any kind that is directly or indirectly caused by or results from the Services, this Agreement or the matters to which it relates or are in any way connected to it; and/or
        4. any direct, incidental, special or consequential damages, including loss or profits or anticipated profits, even if notified of the possibility of that potential loss or damage, to the extent that it is not directly caused by MK’s wilful or negligent act or omission;
      2. the Client releases MK from any liability or claims including, but not limited to:
        1. any personal injury, illness or death caused to the Client, the Client’s Related Parties and/or any other persons;
        2. any Data Breach which occurs during the Term; and
        3. any breach of MK’s obligations, to the extent that any liability or claim is not directly caused by MK’s wilful or negligent act or omission.
    2. The Client acknowledges and agrees that this Agreement’s limitations of liability in clause 1 are essential to MK and MK would not have entered into this Agreement in their absence.
    3. The Client indemnifies MK for:
      1. all losses and expenses MK incurs (including legal costs on an indemnity basis); and
      2. all liabilities MK incurs; directly or indirectly caused by, or resulting from any breach of this Agreement or from any wrongful, wilful or negligent act or omission by the Client.
    4. Any representation, warranty, condition or undertaking that would be implied in this Agreement by legislation, common law, equity, trade, custom or usage is excluded to the fullest extent permitted by law.
    5. MK’s total aggregate liability for all claims relating to this Agreement is limited to the Fees payable under this Agreement.
    6. While MK takes all reasonable steps to ensure that all Personnel meet the necessary requirements which allow them to perform the Services to a high standard and are generally of good fame and character, MK is not liable for any false or misleading information provided by any Personnel.
    7. This Agreement is to be read subject to any legislation which prohibits or restricts the exclusion, restriction or modification of any implied warranties, guarantees, conditions or obligations. If such legislation applies, to the extent possible, MK limits its liability in respect of any claim to the Fees.
  11. Software Modification (Upgrade)
    1. If MK develops or becomes aware that any update, modification, improvement, software patch or similar upgrade is available or required in relation to the Services (Upgrade), MK will notify the Client of such Upgrade available and the relevant cost, steps required and changes included in said Upgrade.
    2. Where any Upgrade relates to anything designed or developed by MK to provide the Services:
      1. if it will not, in MK’s reasonable opinion, negatively affect the Services provided to the Client, the Client authorises MK to complete any required Upgrade to the Configuration, and agrees to release and indemnify MK from any cost, damage, loss or claim in relation to the Upgrade;
      2. if it will, in MK’s reasonable opinion, negatively affect the Services provided to the Client, MK will not be obliged to complete the Upgrade in relation to the Services provided to the Client, and the Client further authorises MK to take steps to ensure the Upgrade is not implemented in respect to Services provided to the Client.
    3. MK is not under any obligation to implement any Upgrade with respect to the Services provided to the Client.
  12. Warranty
    1. Following completion of the Services, MK warrants to attend to any rectification of bug fixes (Defect) for a period of seven (7) days after the Website is launched (Warranty Service).
    2. The fees applicable for the Warranty Services are included in the Fees.
    3. MK will initiate rectification of any Defect which MK becomes aware of. In all other instances, the Client is required to report such Defect that is required to MK, and MK will contact the Client within five (5) business hours to discuss the reported problem and confirm a timeframe for MK to attempt to complete rectification of the Defect.
    4. The Client agrees that the Warranty Services includes two (2) hours’ of MK attempting to complete a Defect, and if the Defect cannot be resolved within that timeframe, MK will advise the Client of those next steps required and the relevant cost to complete that task.
  13. Support Services
    1. In addition to the Services, MK may offer ongoing support including attending to rectification of software defects or errors, system bugs and the like (Defect).
    2. Unless specified as being included in this Agreement, the cost and timeframes for which MK will provide such ongoing support will be advised to the Client prior to such support being provided.
    3. Except for any Defect which is directly caused by the wilful or negligent act or omission of MK, MK is not obliged to provide additional support services to attend to the Defect, and the Client releases and indemnifies MK from any cost, loss or damage incurred as a result of the Defect.
  14. Licensing
    1. Upon completion of the Services, MK grants the Client a revocable, non-exclusive, non-transferable, limited license to use and operate the Services strictly in accordance with the purposes for which MK agreed to provide them to the Client.
    2. The Client acknowledges and agrees that they are not permitted to license, sell, rent, lease, assign, distribute, transmit, host, outsource, disclose or otherwise dispose of the Services.
    3. The Client further acknowledges and agrees that any modification, amendment or change which the Client makes to the Services may impact on the operation of those Services, and the Client releases MK from any clam, loss, damage or liability which arises in relation to the Services in connection with any modification, amendment or change which the Client makes.
  15. Default and Termination
    1. MK may terminate this Agreement immediately by written notice to the Client if any of the following events has occurred:
      1. MK ceases to offer the Services;
      2. MK believes the professional relationship between MK and the Client and/or the Client’s Related Parties has broken down beyond repair;
      3. the Client breaches any term of this Agreement, and the Client fails to rectify the breach within fourteen (14) days of receiving notice from MK; or
      4. the Client is subject to an insolvency event.
    2. The Client may terminate this Agreement by written notice to MK if any of the following events has occurred:
      1. MK has committed a material breach of this Agreement which is not remediable or if capable of remedy, where MK fails to remedy within 14 days of written notice; or
      2. MK is subject to an insolvency event, other than an internal reconstruction with notice to the Client.
    3. If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:
      1. the parties are immediately released from their obligations under the Agreement except those obligations that, by their nature, survive termination;
      2. each party retains the claims it has against the other;
      3. the Client must immediately pay all outstanding Fees to MK without off-set (including any off-set for any alleged claim); and
      4. MK must return to the Client any original Photos or Videos that have been supplied by the Client, and MK will immediately destroy any copies they have in their possession (including any digital copies if specifically requested).
  16. Delivery
    1. Ownership
      Ownership of goods which are the subject of this Contract shall not pass to the Client until they are fully paid for. However, the risk of the Goods shall be carried by the Client from the date they are collected or delivered to the Client.
    2. Notification and Collection
      MK shall notify the Client when the Goods are ready for collection. The Client must collect the Goods from MK upon being notified that the Goods are ready for collection. If MK agrees to deliver the Goods the Client shall bear all freight costs and charges of such delivery.
    3. Rejection
      The Client may only reject the Goods if they do not comply with the Client’s instructions. If the Client wishes to reject the Goods, the Client must notify MK of the rejection:

      1. if MK agrees to deliver the Goods to the Client’s premises – within seven days of delivery (or such other time as is mutually agreed);
      2. otherwise – within seven days of notification that the Goods are ready for collection (or such other time as is mutually agreed).

  17. General Provisions
    1. MK may appoint sub-contractors or agents to perform any Services under this Agreement, in their sole discretion.
    2. The Client must not assign or otherwise deal in any other way with any of its rights or obligations under this Agreement without MK’s prior consent.
    3. Nothing contained in this Agreement creates any relationship of partnership, employment or agency between the parties.
    4. If a provision of this Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
    5. Each party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.
    6. This Agreement (and any documents executed in connection with it) is the entire agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements. Other than as expressly set out in this agreement, no party has relied on any representation made by or on behalf of the other.
    7. This Agreement is governed by the laws of Queensland and each party submits to the jurisdiction of the courts of Queensland.

Acceptance by Client

By instructing MK to proceed with the Services, the Client hereby acknowledges and agrees that: 

  1. they have read and agree to the terms and conditions which form part of this Agreement;
  2. MK may vary the terms of this Agreement from time to time. Any amendment to the terms of this Agreement will have effect on and from the date that is seven (7) days after MK gives notice to the Client of such change. If the change materially affects the Client’s rights under this Agreement, the Client may give 30 days’ written notice to MK terminating this Agreement;
  3. they understand that even if they do not sign and return this Agreement to MK, but continue to instruct MK (or fail to immediately withdraw their instructions), or make any payment towards the Fees, they will be deemed to have accepted the terms of this Agreement and will be bound to them as if they have signed; and
  4. this Services Agreement may be signed electronically and such electronic signature by the Client indicates the Client’s intention to enter into this Agreement in order to satisfy the requirements s14(1) of the Electronic Transaction (Queensland) Act 2001.