Terms of Business of Spherify Pty Ltd

Background

Spherify Pty Ltd is a design agency and can provide clients withthe activities around these services:

1) Design for Branding & Styleguides

2) Branding Strategy

3) Brand Design

4) Brand Style guides

5) Physical Product Design & Development

6) Product Conceptual Design, Fixtures, Furniture and Interiors

7) Detailed Manufacture Documentation

8) Design, Product and Architectural Visualisation

9) Product Visualisation

10) Interior Visualisation

11) Architectural Visualisation

12) Detailed Design Documentation

13) Architectural Interior Layout Design

14) Design of Technical Product Materials such as brochures andflyers

15) Website Design & Development

16) Website Design

17) Online Digital Marketing

18) Search Engine Optimisation (hereinafter referred to as “SEO”)

19) Search Engine Marketing Services (hereinafter referred to as“SEM”)

20) Email Marketing Services (hereinafter referred to as “ESP”)

21) Social Media Marketing Services (hereinafter referred to as“SMM”)

22) Hosting & IT

23) Website Hosting

24) Cloudflare DNS Administration

25) Email Systems Setup

a) This section defines the terms used throughout this agreement.

b) Other terms are specified elsewhere in this agreement.

2 Materials

a) Client Data refers to the raw information provided to Spherify Pty Ltd by the Client.

b) Spherify Pty Ltd Materials encompass all subject matter authored, created, produced, or licensed by Spherify Pty Ltd ,including presentations, analyses, advice, data, compilations of data, software, and source code, but excluding New Client Materials.

c) New Client Materials denote subject matter authored, created,or produced by Spherify Pty Ltd , which is not classified as SPHERIFYPTY LTD Materials by mutual agreement of the parties.

d) Original Client Materials comprise all subject matter authored,created, or produced by the Client, including Client Data and otherdata compilations, in which intellectual property or other rights subsist or relate.

3 Other Definitions

a) Client refers to the individual or entity specified in the Proposal and/or Agreement.

b) Confidential Information pertains to any non-public information disclosed by one party to the other during the performance of this agreement, including but notlimited to, Client Data, proprietary methodologies, and businessstrategies.

c) Spherify Pty Ltd designates the entity specified in theProposal.

d) Deliverable denotes subject matter authored, created, produced, or licensed by Spherify Pty Ltd and provided to the Client as part of the services rendered under this agreement.

e) Expenses comprise reasonable expenses, such as travel expenses, incurred by Spherify Pty Ltd specifically to provide services to the Client.

f) Intellectual Property encompasses existing and futurecopyright, trademarks, designs, patents, or circuit layouts, whether registered or not.

g) Loss includes any loss, damage, cost, expense, or liability,excluding special (indirect, consequential, incidental) loss.

h) Media Buying Components entail media placements purchased onbehalf of the Client, such as paid search advertisements.

i) Project Fee signifies the fee specified in the Proposal for theproject.

j) Proposal refers to the proposal or quote supplied by SPHERIFYPTY LTD and approved by the Client, detailing the project, fees, charges, and terms.

k) Related Body Corporate retainsthe same meaning as in the Corporations Act 2001 (Cth).

l) Services denote the services specified in the Proposal.

4 Services, Deliverables & Products

a) Spherify Pty Ltd is obligated to provide the Services andDeliverables to the Client as outlined in the Design Proposal.

b) Spherify Pty Ltd warrants that it will deliver the Serviceswith due care, skill, and professionalism.

c) The Client must provide reasonable cooperation to enableSpherify Pty Ltd to deliver the Services effectively.

d) Spherify Pty Ltd warrants that the Deliverables will be ofmerchantable quality and function as supplied until accepted by the Client.

e) The Client acknowledges thatmodifications to Deliverables without Spherify Pty Ltd ’sauthorisation may void the warranty provided.

f) If Third Party Products are specified in the Proposal,Spherify Pty Ltd must supply those products.

5 Change Requests

a) The Client may request changes to the Services or Deliverables.

b) Upon receiving a Change Request, Spherify Pty Ltd may accept orreject it, with acceptance potentially altering the Project Fee.

c) If a Change Request involves a changed Project Fee, the Clientmay accept or reject it.

d) If a Change Request is accepted without altering the ProjectFee or if the Client accepts the changed Project Fee, Spherify Pty Ltd must implement the requestedchanges.

e) If a Change Request isrejected, Spherify Pty Ltd is not obliged to implement the changes.

f) All communications related to Change Requests must be inwriting.

6 Commencement of Work

a) To commence any activity, Spherify Pty Ltd will send the clienta detailed return brief via email, covering essential aspects such asservices provided, client details, and any contractual terms including duration, start date, fees, and any recommendedbudgets. By acknowledging and accepting these particulars through email reply, the clientagrees to the terms and initiates the contract, setting the stage for the commencement of work. This step is mandatory before any design work begins.

7 Acceptance

a) The Client accepts a Deliverable when notified in writing ofacceptance, modifies the Deliverable, or 14 days elapse from thedelivery date without notification of non-acceptance.

8 Fees

a) The Client must pay Spherify Pty Ltd the Project Fee, Expenses,charges for Third Party Products, and applicable GST.

b) Spherify Pty Ltd must not incur Expenses exceeding $500 withoutprior written approval from the Client.

9 Payment

a) Unless otherwise specified, Spherify Pty Ltd may invoice theClient monthly for all fees and charges.

b) Spherify Pty Ltd requires a 30% upfront payment of the totalproject cost before commencing work.

c) The Client must pay allinvoiced amounts within 7 days of the invoice date without set-off.

d) Payment must be made inaccordance with the method specified in the invoice.

e) Spherify Pty Ltd may charge interest on unpaid invoices atthe prescribed rate.

f) The Client must pay all interest charged as though it wereinvoiced on the day the unpaid invoice is settled.

g) Failure to make payments by due date may result in stopping ofpaid services, such as Virtual Machines and Paid Plugins.

10 Systems Access

a) At the start of an agreement, Spherify Pty Ltd will setup theagreed services as outlined in the design brief on an account controlled by the client.

b) Spherify Pty Ltd is granted separate access, typically withadministrative rights, to deliver these services. This access can be revoked by the client uponcompletion of the service agreement, as mutually agreed.

11 General Services

The Client agrees to provide the following for general website services.

a) Administrative access to existing website backend / CMS / FTP

b) Administrative access to Cloudflare for DNS (Domain Name System) entry

c) Permission to make changes on existing website for the purpose of optimisation, all changes will be communicated prior.

d) Administrative Access to any existing website services, such asGoogle Analytics, for the purpose of optimisation, data analysis and tracking.

e) Authorisation to us Client digital assets, trademarks,marketing materials and content as required for SEO, SEM, ESP, SMM or other items as outlined in the returnbrief.

11.1 For SEM & SMM Services

The client also agrees to provide the following:

a) Administrative access to socialmedia channels required and specified in the return brief, such asMeta Platforms including but not limited to Facebook and Instagram,Twitter (x), LinkedIn and Tik Tok

b) In additional for SEM services, administrative access toads platforms including but not limited to Meta, Google Ads, BingAds, Twitter (x), LinkedIn and Tik Tok

c) Monthly marketing channel budgets no later than 7days prior tothe start of the month. If budgets are not received, previous monthbudgets will continue to be applied.

11.2 For ESP Services

a) The client also agrees toprovide the following:

b) Administrative access to anyemail marketing platforms, such as Mailchimp, Campaign Monitor, SendGrid, Klaviyo

c) Permission to optimise contact lists and remove obviousspam emails

11.3 Wordpress Plugin Access

a) For WordPress sites under our management, plugin installationprivileges are granted to the client only at the end of a maintenance term. This policy ensures siteintegrity by minimising the risk of disruptions caused by pluginconflicts, thereby reducing the need for Spherify Pty Ltd to rectifyissues related to such errors. We will install any requested pluginsshould they be required.

12 Intellectual Property

12.1 Ownership

a) Client does not own any Intellectual Property in SPHERIFY PTYLTD Materials, except as expressly provided.

b) Spherify Pty Ltd does not ownany Intellectual Property in New Client Materials or Original ClientMaterials, except as expressly provided.

c) Any Intellectual Property owned by Spherify Pty Ltd in NewClient Materials is hereby assigned to the Client

12.2 Source Code

a) All source code for React and Next.js projects developed bySpherify Pty Ltd remains the proprietary asset of Spherify Pty Ltd .This ensures the protection of our intellectual property andmaintains the exclusivity of our custom solutions for our clients.

12.3 Licences

a) Spherify Pty Ltd grants the Client a perpetual, non-exclusivelicense to use Spherify Pty Ltd Materials as required for the Services.

b) The license granted is non-transferable and non-sublicensable,except to Related Bodies Corporate of the Client.

c) The Client grants Spherify Pty Ltd a license to use OriginalClient Materials and New Client Materials to provide the Services.

d) This license is non-exclusive and non-transferable, except toRelated Bodies Corporate and subcontractors of Spherify Pty Ltd .

e) Any license required for Third Party Products must be obtaineddirectly from the manufacturer.

12.4 Infringement

a) The Client must not infringeany Intellectual Property rights in Spherify Pty Ltd Materials.

b) Spherify Pty Ltd must not infringe any IntellectualProperty rights in New Client Materials, Original Client Materials,or Client Data.

12.5 Moral Rights

a) Spherify Pty Ltd waives any moral rights it may have in NewClient Materials against the Client.

13 Confidential Information

13.1 Disclosure & Use

a) Both parties must refrain fromdisclosing Confidential Information to third parties or using it forpurposes other than those outlined in this agreement.

b) Recipients may disclose Confidential Information toauthorized personnel only as necessary for fulfilling obligationsunder this agreement.

13.2 Return & Destruction

a) Recipients must return, permanently disable access to, ordestroy all copies of Confidential Information upon termination ofthis agreement.

13.3 Rights in Confidential Information

a) Recipients acknowledge they have no rights to the Discloser’sConfidential Information, except as expressly provided in thisagreement.

14 Restraint

14.1 Non-Solicitation

a) The Client must not solicit any employee of Spherify Pty Ltd toleave their employment during the term of this agreement and for a specified period thereafter.

b) The parties acknowledge the reasonableness of this restraint.

14.2 Consequences of Breach

a) If the Client breaches clause9.1, resulting in an employee leaving Spherify Pty Ltd , the Clientbecomes liable to pay an amount equivalent to the employee’sannual salary package.

b) This sum becomes payable to Spherify Pty Ltd upon theemployee’s departure.

15 Additional Warranties

15.1 Additional warranties client gives

a) In addition to warranties elsewhere in this agreement, theClient warrants that the instructions issued will not lead tounlawful conduct by Spherify Pty Ltd and that it does not rely on any representation not expressly contained in this agreement.

15.2 Additional warranties Spherify Pty Ltd doesnot give

a) Spherify Pty Ltd does not warrant that Deliverables willcontinue to function as supplied after acceptance by the Client or that Services will achieve specificcommercial objectives.

b) No warranty is provided for Third Party Products.

16 Indemnity & Limitation Of Liability

16.1 Indemnity

a) The Client indemnifies SPHERIFYPTY LTD against any Loss resulting from a breach of this agreementby the Client or any unlawful conduct related to the Services.

b) Spherify Pty Ltd indemnifies the Client against any Lossresulting from a breach of this agreement by Spherify Pty Ltd or anyunlawful conduct related to its obligations.

16.2 Limitation of Liability

a) The liability of each party is limited to a maximum amountequivalent to the previous two months’ fees paid by the Client,excluding indirect or consequential losses.

17 Term & Termination Of Agreement

17.1 Term

a) This agreement remains in effect until termination as per thespecified conditions.

17.2 Termination for Convenience

a) The term automatically renews unless the Client provides 60days’ written notice to Spherify Pty Ltd .

17.3 Termination for Breach

a) Either party may terminate this agreement if the other partybreaches its obligations and fails to

remedy the breach within 14 days of written notice.

17.4 Consequences of Termination

a) If the agreement is terminated, the Client becomes liable topay Spherify Pty Ltd any outstanding fees for the current term:

a) 1 – 3 months remain inthe minimum term, an early termination fee of 10% is due

b) 4 – 6 months remain inthe minimum term, an early termination fee of 20% is due

c) 7 – 9 months remain inthe minimum term, an early termination fee of 30% is due

d) 10 – 12+ months remain inthe minimum term, an early termination fee of 40% is due

b) This sum becomes due upontermination.

c) This provision is without prejudice to other obligationsunder this agreement.

18 This Agreement

18.1 Formation

a) By entering into this agreement, the Client agrees to abide byits terms and conditions.

18.2 Terms and Conditions

a) This agreement includes the Proposal and all related documentsbut excludes any terms imposed by Third Party Product manufacturers. In case of inconsistency,the Proposal prevails.

b) This agreement constitutes the entire understanding between theparties, superseding all prior agreements.

18.3 Principles of Interpretation of Agreement

a) This agreement is subject to the principles of interpretationoutlined in this clause.

18.4 Variation

a) The agreement may only be varied by written agreement of theparties.

18.5 Waiver

a) No waiver of rights, actions, or remedies is effective unlessin writing.

18.6 Compulsory Provisions & Severability

a) Certain provisions are subject to legal requirements, and ifany provision is found unlawful or unenforceable, the remaining provisions remain valid.

18.7 Assignment and Novation

a) Assignment of rights is permissible with written notice, whilenovation requires written consent.

18.8 Survival

a) Certain clauses survive termination of the agreement.

18.9 Governing Law & Jurisdiction

a) This agreement is governed by the laws of Queensland,Australia, with disputes to be settled in the courts of Queensland.

Last updated: March 3rd, 2024 at 20:06 pm