By supply of a purchase order to Flickerbox you are agreeing to the following Terms & Conditions:

Consulting Services

  1. Flickerbox will provide consulting services to its clients (“the Client”) relating to the creation or modification of design, marketing and Internet assets.  The specific nature of the services (“the Services”) to be provided by Flickerbox will be as specified in the project proposal (“the Proposal”).
  2. Subject to confidentiality agreements and any other lawful restraint imposed upon it by any other party, Flickerbox will make available to the Client all knowledge, information and expertise in its possession in performing the Services.
  3. If the Client wishes Flickerbox to perform any services other than those specified in the Proposal (including without limitation to provide any additional functionality) or to provide further or other products or software, then Flickerbox shall be entitled to quote the Client separately for the provision of those services or the provision of those products or software. If the Client accepts that quotation then the provisions of this Agreement will apply to the provision of those additional services, products or software.
  4. Unless otherwise agreed in writing by the parties, the term of this Agreement will commence on the ‘project commencement’ date specified in the Proposal’s project schedule.

Products

  1. Flickerbox may also supply the Client with Products (as ordered by Client and agreed by Flickerbox) from time to time.  In the context of this Agreement, “Products” means any hardware and/or third party software provided to the Client by or on behalf of Flickerbox pursuant to this Agreement.

Payments

  1. Flickerbox will be entitled to invoice the Client on an interim basis at least fortnightly for progress payments for any Services performed or Products supplied during the previous fortnight (or during any earlier period which has not previously been invoiced) together with such expenses as the Client is required to reimburse Flickerbox.  Such invoices shall contain such information and detail as the Client may reasonably need to account for the Services and Products reasonably prescribed by the Client.
  2. All invoices rendered by Flickerbox are payable within fourteen (14) days from the date of invoice.  The Client agrees to pay Flickerbox in full within this time period.
  3. If the Client fails to pay any invoice by the due date for payment, then without prejudice to Flickerbox’s rights under this Agreement, the Client shall also pay Flickerbox interest on the outstanding amount at the rate of 2% per month or part thereof.
  4. Unless specifically stated as a fixed price quote, any cost estimates that are or have been given by Flickerbox are estimates only.  Actual time spent and Products supplied may be used as the basis for billing.
  5. Flickerbox requires an upfront deposit of the ‘engagement fee’ amount specified in the payment schedule of the Proposal before work will begin.
  6. Progress payment invoices may be presented by Flickerbox upon reaching set milestones as specified in the Proposal’s project schedule.
  7. Any remaining balance will be invoiced upon completion of the project.
  8. Cheques to be made payable to Flickerbox Pty Ltd
  9. Flickerbox reserves the right to make progress claims of up to 100% of the remaining quoted value if the project completion is delayed by the client.
  10. Flickerbox will notify the Client when work on a project has been halted due to outstanding Invoice payments.
  11. Payments not completed within 30 days from the invoice date will incur additional costs for debt recovery. Legal costs to recover outstanding invoice amounts will be passed onto the client.
  12. Flickerbox is entitled to list any defaulted payment(s) with relevant credit reference organisations, which you acknowledge may affect your credit rating.

Client Account & Reporting

  1. The Client shall make its employee (specified in the Proposal or such other person as the Client shall nominate in writing) (the “Client Contact”) available to meet with Flickerbox when reasonably required by Flickerbox for the purposes of discussing the status of the Services.
  2. Flickerbox will meet regularly with the Client Contact (by remote communication facility if necessary) and report to the Client on the status of the Services.
  3. The Client agrees to keep Flickerbox informed of changes to contact details.

Client provided content

  1. Flickerbox will supply instructions on the correct formats for providing your material in a document titled “Web Content Guidelines”.
  2. All material supplied by client for the project (text, mailing lists, images, etc) must be done so in compliance with the provided Web Content Guidelines document, including but not limited to: well formatted and copy-edited, of reasonable resolution, clearly labelled, file names must be logical and consistent. Flickerbox reserves the right to charge additional fees at $125/hour unless such copy-editing/writing, image re-sizing, or file management for the specific material is explicitly itemized in quote/proposal.
  3. Failure to deliver content, requirements, decisions, feedback or sign-off in a timely manner will delay the schedule and final delivery date. While we’ll try and catch up, we also can’t promise that we’ll be solely available to you for work more than 10% outside the schedule dates included in this proposal.

Copyright

  1. Flickerbox retains rights to be identified as the author and copyright holder of this work, but rights for use of design, layout, graphics, text and HTML may be licensed to the client after final payment and upon written request. Full transfer of copyright is only made upon written request and may require negotiations and additional fees.
  2. The Site Updater and Newsletter Manager applications are used by client under license from Flickerbox.
  3. The client will obtain all the necessary permission and authorities in respect to the use of all copy, graphic images, registered company logos, names and trademarks or any other supplied material to be viewed on the site.  Evidence of permission and authorities may be requested by Flickerbox.
  4. No responsibility will be accepted by Flickerbox for damages to or losses incurred by the client from the use of material for which the required permission or authority has not been properly obtained.
  5. Flickerbox grants the purchaser a single use licence for the use of Site Updater software for the quoted system.
  6. All data, client listings, images and design concepts remain the confidential property of the client for their exclusive use.
  7. Material published before final payment is received may infringe copyright.
  8. The client agrees to indemnify and hold harmless Flickerbox from any loss, expense and damages arising out of violation of copyright or trademark laws from the illegal use of material supplied by/to the client.
  9. Unless otherwise agreed in writing by Flickerbox, the copyright and all other rights relating to any software provided to the Client by or on behalf of Flickerbox pursuant to this Agreement (the “Intellectual Property”) will remain the property of Flickerbox or where applicable its licensors.
  10. Upon payment in full for the Services provided by or on behalf of Flickerbox pursuant to this Agreement, Flickerbox grants the Client a non-exclusive and non-transferable perpetual license to use the Intellectual Property for the Client’s own business purposes, and in the case of the third party software, will obtain a sub-license in favor of the Client in similar terms.
  11. Flickerbox warrants to the Client that to the best of its knowledge, it has the right to grant the licenses referred to in this Agreement, and the use by the Client of any software provided by Flickerbox will not infringe the rights of any third party.
  12. Flickerbox also grants the Client the right to copy the Intellectual Property for the purposes of staff and subcontractor education and system backups.  However, the Client must not copy any of the Intellectual Property for any other purposes.
  13. The Client must not de-compile, disassemble, decrypt, extract or otherwise reverse engineer any part of any software that is provided to the Client by Flickerbox without Flickerbox’s prior written consent.
  14. The Client must hold any software (in source and/or in object code) and other materials provided to the Client by Flickerbox confidential.  The Client must not disclose any of those materials to any third party without Flickerbox’s prior written consent.  The Client must also take all reasonable steps within its power to protect the Intellectual Property of Flickerbox.

Consulting Rates and Out of Scope Expenses

  1. Flickerbox will provide Services to the Client and will be entitled to charge the Client for such Services at the rates specified in the Schedule.
  2. Flickerbox shall be entitled to provide the Services remotely from its own premises and will not be required to attend the Client’s premises.  If Flickerbox is required to attend the Client’s premises for any reason pursuant to this Agreement, the Client will reimburse Flickerbox for reasonable transport and/or accommodation expenses incurred by Flickerbox in doing so.  However this does not include transport or accommodation expenses where the Client’s premises are located within 25kms of Box Hill, Victoria.
  3. The Client will also reimburse Flickerbox for all expenses incurred by Flickerbox on the Client’s behalf or in carrying out its obligations under this Agreement.
  4. The Client will pay Flickerbox for the cost of any Products (including any licensing that Flickerbox is required to pay to obtain a sub-license in favor of the Client for any third party software) together with Flickerbox’s own charge that it levies for handling and/or obtaining any relevant sub-licenses.
  5. Flickerbox reserves the right to invoice for consultancy or troubleshooting phone calls beyond 15 minutes in duration.
  6. Time spent during site visits and transport to site visits will be invoiced at an hourly rate unless these visits are specifically itemised in the scope of the project.
  7. All authors’ corrections, changes to specifications and alterations to specified functions and deliverables will be charged as additional work outside this contract.
  8. Additional work outside the scope of the deliverables and on-going support will be charged at Flickerbox’s standard rate of $125 per hour and delivered during standard work hours. Further costs will apply for urgent out-of-hours, weekends or holiday work. Additional work will be billed at the discretion of Flickerbox.
  9. Unless explicitly specified in writing, all ongoing website maintenance, new accounts or settings, training or on-site support will be billed separately and is not included in this agreement.
  10. Reverting to stages of work prior to the most recently approved milestone may attract additional charges.

Permission to Access

  1. The Client authorizes Flickerbox to obtain access to the Client’s computing facilities referred to in the Schedule (the “Facilities”) using the remote means of access referred to in the Schedule (“Means of Access”) and subject to any Restrictions on Access set out in the Schedule, for the purposes of providing the Client with Services.
  2. Flickerbox will not use the Means of Access (or any other methods of remote access) to access the Facilities for any purpose other than to provide the Services.  However, Flickerbox shall be permitted to gain remote access to the Facilities for lawful purposes using any publicly available means (such as the World Wide Web), which do not require special authorization.
  3. Flickerbox will take the following steps to ensure the security of the Facilities (insofar as the use of Flickerbox’s systems and the Means of Access are concerned):
    a) Ensuring that no passwords are stored in easily recognizable form on Flickerbox’s own systems in circumstances where a breach of Flickerbox’s own internal security may reveal them;
    b) Ensuring that only those employees and contractors of Flickerbox who are required to access the Facilities using Flickerbox’s systems and the Means of Access are able to do so;
    c) Ensuring that the Facilities are not capable of being accessed by a system or user, which transits Flickerbox’s own systems, except as permitted by this Agreement.
  4. The Client indemnifies Flickerbox against any loss or damage arising directly or indirectly from any unauthorized use of the Facilities to which Flickerbox has been granted remote access, provided that such unauthorized use has not arisen as the result of any material breach by Flickerbox of its own obligations under Clause 10 of this Agreement.

Limitation of liability

  1. Unless otherwise expressly provided, Flickerbox shall not be liable or responsible for any loss, damage, injury to property or persons (including but not limited to loss of profit, production, raw materials, end products or loss of use of Web Site, Intranet, Site Updater Module or Equipment or other direct, indirect, special, consequential or incidental damages) resulting from, arising out of or in connection with the construction, acquisition, delivery, installation, commissioning, testing, use or possession of the Web Site or the supply of any Services by Flickerbox irrespective of whether such loss, damage or injury is claimed in contract or tort or under statute or  otherwise.
  2. Flickerbox will not be responsible for changes or errors resulting from changes made by anyone other than Flickerbox or an authorized agent.
  3. All work will be developed using the version of appropriate software most recently available at the commencement of work, unless otherwise specified.
  4. Except for express undertakings to indemnify and any warranties set out in this Agreement:
    1. To the extent permitted by the law, Flickerbox expressly excludes all conditions and warranties whether express or implied.
    2. Notwithstanding any other provision in this Agreement, in no event will Flickerbox be liable to any party including the Client for any indirect, punitive, special, incidental or consequential damage in connection with or arising out of this Agreement (including for loss of profits, use, data, or other economic advantage), however it arises, whether for breach of this Agreement or in tort, and even if Flickerbox has been previously advised of the possibility of such damage.  Further, liability for such damages shall be excluded, even if inclusive remedies provided hereunder fail their essential purpose.  The Client will indemnify Flickerbox and keep it indemnified from and against any claims by any third party for or in respect of such damages.
  5. Certain provisions relating to the trading of goods and services and other statutes, rules and regulations in [Your Country] may imply certain non-excludable warranties or conditions.  To the extent that they are not permitted to be excluded, Flickerbox’s liability for breach of such conditions or warranties and the Client’s sole and exclusive remedy in relation to such breaches shall be limited to:
    1. in the case of Products or software or other goods supplied by Flickerbox, at Flickerbox’s option:
      i) the replacement or repair of those Products or software or goods, or the supply of equivalent goods; or
      ii)   the payment of the cost of replacing or repairing the Products or software or goods or of acquiring equivalent goods; and/or
    2. in the case of Services, at Flickerbox’s option:
      i)    supplying the Services again; or
      ii)   the payment of the cost of having the Services supplied again.
  6. The Client is solely responsible for the proper backup and protection of all of its software and data, as well as the implementation and maintenance of firewalls and security measures (including proper virus control) in relation to the Facilities.

High Risk Activities

  1. None of the software or the Products provided pursuant to this Agreement is designed or intended to be fault-tolerant or designed or intended for use as or for use where their failure or malfunction could lead to death, personal injury, or economic, physical or environmental damage (“High Risk Activities”).  The term “High Risk Activities” includes but is not limited to on-line control equipment in hazardous environments requiring fail-safe performance (such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, direct life support machines, weapons systems, banking or financial control or reporting systems, or security systems). The Client warrants that it will not use, distribute or resell any of the Products or the software for any High Risk Activities and that it will ensure that permitted end-users of such Products or software are provided with a notice in the form set out in this Clause.  The Client will indemnify Flickerbox for any loss, cost, damage or third party claim arising from the Client’s use of any of the Products in High Risk Activities or from any breach by the Client of this clause.

Assurance of quality

  1. Flickerbox will provide a reasonable level of ongoing support (with a response time normally within 24 hours) in relation to the work it undertakes. Support staff can be contacted using the specified support email address, fax and telephone numbers (during business hours).
  2. Flickerbox will be responsible for errors within the contracted specifications. Flickerbox will not be responsible for errors after the work has been completed and approved. Also Flickerbox cannot be held responsible for faults and errors arising from work done by third parties outside the scope of this Agreement.
  3. It is the client’s ultimate responsibility to thoroughly review the work in progress and final product or service before approving it. Flickerbox will do its best to identify and eliminate any content-related errors and omissions. However Flickerbox is not responsible should any error or omission go undetected and become a part of the final materials.

Confidentiality

  1. Flickerbox will not disclose to any third party or use other than for the purposes of this Agreement any knowledge or information imparted to or obtained by it during or in connection with the fulfillment of this Agreement which is of a secret or confidential nature relating to the business, equipment, processes relating to the equipment, the products, services, process or business strategies offered or employed by the Client.  This obligation of confidence will cease to apply in relation to information that Flickerbox is required to disclose by any law, or which becomes part of the public domain other than as the result of a breach by Flickerbox of its obligations of confidence under this Agreement.

Assistance & Facilities

  1. The Client will provide Flickerbox with all reasonable assistance and facilities free of charge (including without limitation of the Means of Access and the other Items referred to in the Schedule, office facilities, and liaison with the necessary officers and employees of the Client) in order to permit Flickerbox to efficiently provide the Services.

No Poaching

  1. The Client undertakes to Flickerbox that it will not for a period of two years from the termination of this Agreement entice away or endeavor to entice away from Flickerbox any employee of Flickerbox.  The Client acknowledges that the prohibition and restriction contained in this clause are reasonable in the circumstances and necessary to protect the business of Flickerbox.

Agreement Non-exclusive

  1. The Client acknowledges that Flickerbox is providing Services to the Client on a non exclusive basis and that Flickerbox may provide services of the same or a similar nature as the Services to any other party.

Termination

  1. Cancellation must be made in writing before commencement of the next project milestone. Deposits and upfront payments will not be refunded for cancellation. Un-invoiced work up to the date of cancellation will be payable. Rights to any development work by Flickerbox, including content material not supplied by the client, will be retained by Flickerbox.
  2. This Agreement may be terminated in the following circumstances:
    1. By either party by giving the other party thirty (30) days notice in writing to that effect;
    2. Immediately by Flickerbox by notice in writing if the Client fails to remedy a breach of this Agreement (including any provision as to payment) within fourteen (14) days of receipt of a notice from Flickerbox of such breach requiring it to do so; or
    3. By either party immediately by notice in writing if the other party takes any corporate action or other steps are taken or legal proceedings are started (and are not withdrawn, discontinued or struck out within twenty-one days) for its winding up, liquidation or dissolution (other than for the purposes of reconstruction) or the appointment of an administrator, receiver, receiver and manager, official manager, Liquidator, provisional Liquidator, trustee or similar office of it or of any or all of its revenues and assets (“Insolvency Event”), and such Insolvency Event remains in existence in respect of such party as the time of service of the Notice.
  3. On termination of this Agreement however occurring, all moneys unpaid by the Client pursuant to this Agreement will immediately become due and payable.  If such moneys remain unpaid for a period of thirty days then (without prejudice to any other rights that Flickerbox may have for breach of this Agreement or otherwise) Flickerbox will be entitled to retake possession of the Products and to disable any software provided pursuant to this Agreement (including by remote means).
  4. The Client’s obligations (including any obligations to indemnify) under clauses 11, 18 to 23 inclusive (Intellectual Property), 24 (High Risk Activities), 25 to 27 inclusive (Liability), and Flickerbox’s obligations under clause 17 (Confidentiality) shall survive the termination of this Agreement for whatever reason.

Disputes & Arbitration

  1. Disputes will be submitted to binding arbitration, limited to amounts exceeding the limit for small claims.

General

  1. Any notice required or contemplated by this Agreement shall be deemed to have been duly given if it is in writing, properly addressed and delivered personally or mailed by registered or certified mail, postage prepaid addressed or by fax or electronic mail to the Client or Flickerbox at the address set out in the Schedule or this Agreement or such other address nominated by a party in writing.
  2. The Client may not assign any of its obligations under this Agreement without the prior written consent of Flickerbox.  However Flickerbox may arrange for subcontractors to perform any of Flickerbox’s obligations under this Agreement.
  3. Flickerbox will not be liable to the Client or to any third party for any non-performance or delay in the performance of its obligations under this Agreement, if events or conditions beyond its reasonable control cause the non-performance or delay and Flickerbox gives the Client prompt notice thereof.  In no event will this provision affect Client’s obligation to make payments to Flickerbox under this Agreement except in respect of Services that are unable to be performed by Flickerbox, until they can be performed.
  4. A failure, delay, relaxation or indulgence by either Party in exercising any right, power or privilege conferred on the Party by this Agreement shall not operate as a waiver of the power or right. A single or partial exercise of any right, power or privilege hereunder does not preclude the further exercise of the same right or the exercise of any other right hereunder. A waiver of a breach does not operate as a waiver of any other breach.
  5. If any part of this Agreement is held by a court of competent jurisdiction to be invalid, then;
    1. Where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result; and
    2. In any case the offending provision must be severed from this Agreement the remainder of this Agreement shall continue in full force and effect unless such reading down or severance affects the basic nature of this Agreement.
  6. This Agreement shall be governed by and must be construed in accordance with the laws of Victoria, Australia and the Client irrevocably submits to the non-exclusive jurisdiction of the courts of that State.