Terms of Business of Spherify Pty Ltd

1. Background

Spherify Pty Ltd is a design agency and can provide clients with the 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 and flyers

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. Compliance with Australian Law

Nothing in these terms excludes, restricts, or modifies any rights, warranties, or guarantees the Client may have under the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) or any other applicable legislation that cannot lawfully be excluded or limited.

3. 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 Spherify Pty 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 other data compilations, in which intellectual property or other rights subsist or relate.

4. 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 not limited to, Client Data, proprietary methodologies, and business strategies.

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

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 future copyright, 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 on behalf of the Client, such as paid search advertisements.

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

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

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

l) Services denote the services specified in the Proposal.

5. Services, Deliverables & Products

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

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

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

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

e) The Client acknowledges that modifications to Deliverables without Spherify Pty Ltd’s authorisation may void the warranty provided.

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

6. Change Requests

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

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

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

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

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

f) All communications related to Change Requests must be in writing.

7. Commencement of Work

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

8. Acceptance

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

9. Fees

a) The rates, retainer tiers, and included hours for each client will be as specified in the Proposal, Fee Schedule, or Retainer Schedule agreed in writing between Spherify Pty Ltd and the Client.

b) The Client must pay Spherify Pty Ltd the Project Fee, Expenses, charges for Third Party Products, and applicable GST. All prices and fees are exclusive of GST, which will be itemised separately on all invoices and must be paid in addition to the quoted amounts.

c) Spherify Pty Ltd must not incur Expenses exceeding $500 without prior written approval from the Client.

d) Where the Client is on a retainer arrangement, a set number of service hours will be allocated to the Client each month as agreed in writing. The monthly retainer fee covers only the services provided within these allocated hours.

e) Any requests or work required by the Client that either exceed the allocated monthly retainer hours or fall outside the scope of the agreed services (for example, if additional web development, creative work, or other services not specified in the retainer are requested) will be billed at Spherify Pty Ltd’s standard rate of $125 per hour (excluding GST), or at the rate otherwise agreed with the Client based on their retainer tier. Additional hours and/or out-of-scope services will be tracked and invoiced at the end of each month.

f) It is the Client’s responsibility to monitor the usage of their retainer hours. Spherify Pty Ltd will provide updates on retainer hour usage on request, and will use reasonable endeavours to notify the Client if usage approaches the agreed limit.

10. Payment

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

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

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

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

e) Spherify Pty Ltd may charge interest on unpaid invoices at a rate of 10% per annum, calculated daily, for any amount overdue by more than 7 days.

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

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

11. Systems Access

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

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

12. 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 as Google Analytics, for the purpose of optimisation, data analysis and tracking.

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

12.1. For SEM & SMM Services

The client also agrees to provide the following:

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

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

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

12.2. For ESP Services

a) The client also agrees to provide the following:

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

c) Permission to optimise contact lists and remove obvious spam emails

12.3. Wordpress Plugin Access

a) For WordPress sites under our management, plugin installation privileges are granted to the client only at the end of a maintenance term. This policy ensures site integrity by minimising the risk of disruptions caused by plugin conflicts, thereby reducing the need for Spherify Pty Ltd to rectify issues related to such errors. We will install any requested plugins should they be required.

13. Privacy and Data Security

Each party must comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principles in relation to any personal information collected, used, or disclosed in connection with this agreement. Spherify Pty Ltd will take reasonable steps to protect all Client Data and confidential information against unauthorised access, disclosure, or loss.

14. Intellectual Property

14.1. Ownership

a) Client does not own any Intellectual Property in Spherify Pty Ltd Materials, except as expressly provided.

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

c) Any Intellectual Property owned by Spherify Pty Ltd in New Client Materials is hereby assigned to the Client on full payment of all relevant invoices for that project.

14.2. Source Code

a) All source code for React and Next.js projects developed by Spherify Pty Ltd remains the proprietary asset of Spherify Pty Ltd. Source code, including any repositories or development history, may be managed and stored using platforms such as GitHub or other version control systems solely under the control of Spherify Pty Ltd. The client is not granted access to these repositories except where explicitly agreed in writing.

b) Upon termination of an agreement, the client will no longer have access to any source code repositories, and Spherify Pty Ltd is not required to provide development history, commit logs, or repository access to the client. All code and version control assets remain the exclusive property of Spherify Pty Ltd, and are retained, archived, or deleted at Spherify Pty Ltd’s discretion.

14.3. Licences

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

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

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

d) This licence is non-exclusive and non-transferable, except to Related Bodies Corporate and subcontractors of Spherify Pty Ltd.

e) Any licence required for Third Party Products must be obtained directly from the manufacturer.

14.4. Infringement

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

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

14.5. Moral Rights

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

15. Confidential Information

15.1. Disclosure & Use

a) Both parties must refrain from disclosing Confidential Information to third parties or using it for purposes other than those outlined in this agreement.

b) Recipients may disclose Confidential Information to authorised personnel only as necessary for fulfilling obligations under this agreement.

15.2. Return & Destruction

a) Recipients must return, permanently disable access to, or destroy all copies of Confidential Information upon termination of this agreement.

15.3. Rights in Confidential Information

a) Recipients acknowledge they have no rights to the Discloser’s Confidential Information, except as expressly provided in this agreement.

16. Restraint

16.1. Non-Solicitation

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

b) The parties acknowledge the reasonableness of this restraint.

16.2. Consequences of Breach

a) If the Client breaches clause 16.1, resulting in an employee leaving Spherify Pty Ltd, the Client becomes liable to pay an amount equivalent to the employee’s annual salary package.

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

17. Additional Warranties

17.1. Additional warranties client gives

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

17.2. Additional warranties Spherify Pty Ltd does not give

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

b) No warranty is provided for Third Party Products.

18. Indemnity & Limitation Of Liability

18.1. Indemnity

a) The Client indemnifies Spherify Pty Ltd against any Loss resulting from a breach of this agreement by the Client or any unlawful conduct related to the Services.

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

18.2. Limitation of Liability

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

19. Limitation of Liability – Additional

Spherify Pty Ltd is not liable for any loss of profits, loss of business, loss of data, or any indirect, special, or consequential loss or damage, even if Spherify Pty Ltd has been advised of the possibility of such loss or damage. Spherify Pty Ltd’s total aggregate liability to the Client for all claims is limited to the fees actually paid for the relevant services in the two months prior to the event giving rise to the claim.

20. No Guarantee of Results

Spherify Pty Ltd does not guarantee any specific commercial outcomes, search engine rankings, digital campaign results, website traffic, or sales as a result of the services provided.

21. Timeframes and Delays

Any delivery dates or timeframes provided by Spherify Pty Ltd are estimates only. Delays may occur due to factors outside Spherify Pty Ltd’s control, including but not limited to late delivery of content, materials, or approvals from the Client. Spherify Pty Ltd will not be liable for any loss or damage arising from such delays.

22. Client Responsibilities

The Client is responsible for providing all necessary content, approvals, feedback, and access in a timely manner. Delays in providing requested information or access may result in additional charges or delayed delivery of services.

23. Right to Suspend Services

Spherify Pty Ltd reserves the right to suspend services, restrict access, or withhold deliverables if any invoice remains unpaid or if the Client breaches this agreement.

24. Portfolio Use and Publicity

Spherify Pty Ltd may display completed projects and deliverables, including the Client’s name and logo, in its portfolio, website, and other marketing materials unless otherwise agreed in writing.

25. Third-Party Licences and Content

The Client is responsible for obtaining and maintaining all third-party software, images, fonts, or licences required for the project, unless expressly agreed otherwise. The Client warrants that all materials supplied to Spherify Pty Ltd do not infringe any third-party rights.

26. Non-Disparagement

Neither party will make or authorise any public statement or communication that disparages the other party or could reasonably be expected to damage the other party’s reputation.

27. Data Backups and Recovery

Unless expressly agreed as part of the services, Spherify Pty Ltd is not responsible for ongoing backup or recovery of the Client’s website, data, or content.

28. Expenses for Legal and Recovery Costs

If Spherify Pty Ltd is required to recover unpaid fees or enforce this agreement, the Client is responsible for all reasonable legal, debt recovery, and related costs incurred by Spherify Pty Ltd.

29. Force Majeure

Neither party is liable for any delay or failure to perform its obligations (except payment obligations) under this agreement if such delay or failure is due to circumstances beyond its reasonable control, including but not limited to acts of God, fire, flood, accident, pandemic, telecommunications or internet failures, or actions of government.

30. Term & Termination Of Agreement

30.1. Term

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

30.2. Termination for Convenience

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

30.3. Termination for Breach

a) Either party may terminate this agreement if the other party breaches its obligations and fails to remedy the breach within 14 days of written notice.

30.4. Consequences of Termination

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

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

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

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

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

b) This sum becomes due upon termination.

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

31. Dispute Resolution

If a dispute arises out of or in connection with this agreement, the parties must first attempt to resolve it by negotiation. If the dispute remains unresolved after 14 days, either party may refer the dispute to mediation administered by the Australian Disputes Centre. Only if mediation fails may the dispute be litigated in the courts of Queensland, Australia.

32. Non-Exclusivity

Unless otherwise specified in the Proposal, nothing in this agreement restricts Spherify Pty Ltd from providing similar services to other clients, including competitors of the Client.

33. Subcontracting

Spherify Pty Ltd may subcontract any part of the Services, provided that Spherify Pty Ltd remains responsible for the performance of those Services.

34. Electronic Execution

This agreement may be executed and accepted by electronic means, including email confirmation, and such execution is binding on the parties.

35. Goods and Services Tax (GST)

All amounts specified in this agreement are exclusive of GST. Spherify Pty Ltd will provide valid tax invoices, and the Client must pay the applicable GST in addition to the quoted or invoiced amount.

36. This Agreement

36.1. Formation

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

36.2. Terms and Conditions

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

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

36.3. Principles of Interpretation of Agreement

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

36.4. Variation

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

36.5. Waiver

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

36.6. Compulsory Provisions & Severability

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

36.7. Assignment and Novation

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

36.8. Survival

a) Certain clauses survive termination of the agreement.

36.9. 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: May 5th, 2025 at 10:15 am