TERMS & CONDITIONS
Please see below the standard terms and conditions for Firehawk Systems Pty Ltd (trading as Firehawk Digital). It is important that you (The Client), read and understand these terms and conditions prior to engaging Firehawk Digital for any services. These terms and conditions may change from time to time without notice. If you would like clarification on any point in these terms and conditions, please contact Firehawk Digital prior to work commencing.
COMMENCEMENT OF WORK
Agreement to work with Firehawk Digital and payment of deposit constitutes agreement to these terms and conditions.
Prior to commencement of work, The Client agrees to pay to Firehawk Digital an amount equal to 50% of the total quoted price. This deposit is non-refundable once Firehawk Digital has allocated time, resources and/or research on the project. Firehawk Digital prides itself on meeting and exceeding client expectations and will take all reasonable steps to ensure the project is delivered to expectations on time and on budget. If The Client has a change of mind once work has commenced, The Client acknowledges the deposit is also non-refundable.
The balance of funds is payable to Firehawk Digital prior to final delivery of the product or service.
It is the responsibility of The Client to provide within a reasonable timeframe, any content required by Firehawk Digital for the completion of the project. This includes, but not limited to logos, photos, artworks, testimonials, login details and word content.
TERMS OF SERVICE
In this Agreement, unless the contrary intention appears:
1.1 Additional Charges mean a charge in accordance with Firehawk Digital’s standard fees, or where applicable third party fee schedules, for additional work not set out in the Scope of Services document.
1.2 Agreement means this Services Agreement and includes a Scope of Services document and any other annexure.
1.3 Authorised Representative means you or your staff member nominated in a Scope of Services document, empowered to act on your behalf.
1.4 Charges mean the fees payable by you to us for the Services set out in a Scope of Services document.
1.5 Client means you, as named in the Parties section of this Agreement.
1.6 Commencement Date means the date specified in a Scope of Services document.
1.7 Confidential Information means the confidential information of a Party, which relates to the subject matter of this Agreement and includes:
1.7.1 confidential information relating to the design and operation of the Deliverables and to the Project Services;
1.7.2 confidential information relating to you and your clientele;
1.7.3 information relating to our personnel, business strategies, policies, procedures, documentation, methods and clientele; and
1.7.4 information relating to the terms of this Agreement.
1.8 Core Technology means any proprietary technology and object and source codes created by Firehawk Digital in providing the Services, which have been used or embodied in the Deliverables.
1.9 Deliverables means the outcomes to be achieved under a Scope of Services document and any technology and applications specifically created for the Client, including object and source codes and look and feel of the deliverables pursuant to the Scope of Services document, but excluding any Core Technology.
1.10 Expected Completion Date means the date the Services are expected to be completed by, as set out in the Scope of Services document.
1.11 Insolvency Event means bankruptcy, administration, compromise, arrangement, amalgamation, reconstruction, winding up, dissolution and assignment for or compromise with creditors, and ‘Insolvent’ will be construed accordingly.
1.12 Intellectual Property Rights means:
1.12.1 patents, copyright, registered and unregistered design rights, registered and unregistered trade marks, rights in know-how and confidential information and all other intellectual property rights (without limitation);
1.12.2 all similar or analogous rights existing under the laws of any country; and
1.12.3 all rights to apply for or register such rights
created by or in relation to the Deliverables and Services or arising out of the performance of the Services and Deliverables.
1.13 Party means either Firehawk or the Client.
1.14 Scope of Services means a document incorporated into this Agreement and which sets out the specific services to be supplied to you by us.
1.15 Services means the services described in a Scope of Services document and supplied pursuant to this Agreement.
1.16 Start Date means the date that this Agreement is executed by the Parties.
2. SCOPE OF THIS AGREEMENT
- This Agreement is used where we supply you with the Services in return for the Charges.
- We provide the Services to you on the terms and conditions set out in this Agreement, or otherwise varied by a Scope of Services document.
- After we receive a request from you for the Services, you agree to complete and be bound by a Scope of Services document in respect of those services.
- If there is any inconsistency between this Agreement and a Scope of Services document, the terms of this Agreement will prevail, unless the Scope of Services document specifies otherwise.
This Agreement shall commence on the Start Date and shall continue in perpetuity unless terminated in accordance with clause 12 of this Agreement.
- ENGAGEMENT OF FIREHAWK
4.1 Firehawk will provide the Services upon the terms and conditions set out in this Agreement and the applicable Scope of Services document.
4.2 Firehawk will use our reasonable efforts to commence the Services on the Commencement Date and to complete the Services by the Expected Completion Date. However, you acknowledge that these timeframes are estimated dates only.
4.3 Subject to otherwise complying with our obligations under this Agreement, we will exercise our independent discretion as to the most appropriate and effective manner of providing the Services and of satisfying your expectations of those Services.
4.4 Firehawk may sub-contract the performance of some or all of our obligations under this Agreement.
5. CLIENT OBLIGATIONS
5.1 You agree to nominate a staff member as your Authorised Representative and that person will be responsible for providing us with, on your behalf, instruction, information and material.
5.2 Your Authorised Representative will approve and sign project documentation on your behalf.
5.3 You must, at all times, comply with our payment terms in respect of your payment of the Charges.
Any instructions received from you for the supply of the Services will constitute acceptance of the terms and conditions set out in this Agreement.
7.1 You agree to pay the Charges within the payment terms specified in a Scope of Services document.
7.2 We may invoice you and you agree to pay all disbursements, including stock photography charges and other disbursements as they are incurred.
7.3 We may invoice you and agree to pay all Additional Charges as a consequence of any work to be carried out by us, which is in addition to the work contained in the Scope of Services document.
7.4 We may require that you pay to us an up-front deposit for work to be carried out under the Scope of Services document.
7.5 Final payment for the Services will be due prior to a website or App (included in the Deliverables) going ‘live’ to the public.
7.6 If payment is not effected within 14 days of the due date, Firehawk Digital may, at its absolute discretion, charge interest on the overdue amount at an interest rate equal to 10%. Such charges will be calculated on a monthly basis beginning on the day following the due date of payment. Firehawk Digital may, at its absolute discretion, charge other reasonable costs in relation to recovering overdue payments.
7.7 If you dispute the whole or any portion of the amount claimed in an invoice submitted by us, you agree to pay the portion of the amount stated in the invoice, which is not in dispute and will notify us in writing (within seven (7) days of receipt of the invoice) of the reasons for disputing the remainder of the invoice. If it is resolved that some or all of the amount in dispute should have been paid at the time it was first invoiced, then you agree to pay the amount finally resolved together with interest on that amount in accordance with the terms of payment set out in this Agreement.
7.8 You agree that all work carried out by Firehawk Digital pursuant to the Scope of Services document remain the property of Firehawk Digital until all Charges have been paid.
7.9 The Charges are inclusive of GST.
7.10 You agree to make payment of the Charges in accordance with any payment methods stated on any tax invoice that we may issue you with from time to time. You will be notified of any additional charges and/or fees associated with any payment methods prior to payment.
8.1 Firehawk Digital warrants to you, to the best of its knowledge that no literary software or other works used or created by Firehawk Digital in the provision of the Services will infringe any third party intellectual property rights.
8.2 To the extent permitted by any relevant legislation, we do not make any warranty in relation to the quality or suitability with respect to the Services.
8.3 Firehawk Digital will use its best efforts, techniques and accepted standards in performing the Services.
8.5 You warrant that any content that you provide to us in order for us to perform the Services belongs to you (or is under licence by you) and that you will not be infringing any third party intellectual property rights as a consequence of using that content.
9. LIABILITY OF FIREHAWK DIGITAL
- The parties expressly exclude all terms, representations and warranties that may be implied by law in connection with this Agreement or the provision of Services except to the extent those terms, representations or warranties may not be lawfully excluded.
- If any legislation implies in this Agreement any term or warranty and also prohibits provisions in a contract, excluding or modifying the application of or exercise of, or liability under, that term or warranty, is deemed to be included in this Agreement.
9.3 Firehawk Digital expressly excludes liability for:
9.3.1 indirect, special, incidental, or consequential loss or damage which may arise in respect of this Agreement, or the provision of Services, their use, or in respect of other equipment or property; and
- loss of profit, business, revenue, goodwill or anticipated savings.
9.4 If any legislation or law implies into this Agreement any term or warranty and also prohibits provisions in a contract excluding the application of or exercise of that term or warranty then, to the maximum extent permitted by law, the liability of Firehawk Digital for a breach of such a term or warranty will be limited, at option, to any one or more of the following:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
9.5 To the maximum extent permitted by law, if for any reason Firehawk Digital is directly or indirectly liable to you in respect of any Services, the maximum aggregate liability of Firehawk Digital in respect of all claims made by you will be the Charges in respect of those Services.
10. INTELLECTUAL PROPERTY
10.1 Client’s Intellectual Property
In consideration of the Client paying the Charges to Firehawk Digital, it is agreed that the Client will own all of the Intellectual Property Rights created in the course of Firehawk Digital providing the Services, or which may arise from the provision of Services that relate to the Scope of Services document.
10.2 Firehawk Digital’s Intellectual Property
Firehawk Digital agrees to grant the Client a royalty-free and perpetual licence to use the Core Technology for the explicit use of the Client continuing to develop and maintain the Deliverables. Firehawk Digital agrees to make no claim to the Client for financial benefit for use of the Core Technology during the term, or at any time after the termination of this Agreement providing the Core Technology is used solely in respect of the Deliverables.
10.3 Client’s breach of Firehawk Digital’s Intellectual Property Rights
If you disclose the Core Technology to third parties for financial gain then Firehawk Digital may pursue all their rights at law for a breach of its Intellectual Property Rights under this Agreement.
10.3 Use of Intellectual Property by Firehawk Digital
You authorise Firehawk Digital to use free of any charge any intellectual property created by us and pursuant to the Scope of Services document for the purpose of promoting the Firehawk Digital business.
If a Party:
(a) defaults in its obligations under this Agreement which is, or has, become essential; or
(b) fails to comply with any of the warranties, guarantees, conditions and agreements of a material nature and on the part of the party to be observed and performed under this Agreement,
in addition to any other rights which may be conferred upon it at law the non-defaulting Party may:
(a) give the defaulting Party 14 days written notice to rectify the default. If the defaulting Party does not rectify the default within the 14 days from the date the notice was sent by the non-defaulting Party, then the non-defaulting Party may elect to terminate this Agreement; and
(b) upon termination the non-defaulting Party may sue the defaulting Party for damages for breach of this Agreement.
12.1 Either party may terminate this Agreement by providing thirty (30) days written notice to the other party. In the event of such termination, the Client shall promptly pay all amounts owed to Firehawk Digital up to and including the effective date of termination, including any future non-cancellable commitments after the termination date.
12.2 Without limiting the generality of any other clause in this Agreement, either party may terminate this Agreement immediately by notice in writing if:
- a party breaches any material term of this Agreement which is not capable of remedy;
- a party breaches any clause of this Agreement and such breach is not remedied within 30 days of written notice to the other party; or
- a party becomes, threatens or is in jeopardy of suffering an Insolvency Event.
13. GENERAL PROVISIONS
This Agreement may be altered only in writing signed by each party.
13.2 Invalid or unenforceable provisions
If a provision of this Agreement is invalid or unenforceable in a jurisdiction:
- it is read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and
- it does not affect the validity or enforceability of:
- that provision in another jurisdiction; or
- the remaining provisions.
Any indemnity or any obligation of confidence under this Agreement is independent and survives termination of this Agreement. Any other term by its nature intended to survive termination of this Agreement survives termination of this Agreement.
This Agreement may be executed in counterparts. All executed counterparts constitute one document.
13.5 No merger
The rights and obligations of the parties under this Agreement do not merge on completion of any transaction contemplated by this Agreement.
13.6 Entire Agreement
This Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.
13.7 Further action
Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this agreement and any transaction contemplated by it.
13.8.1 The failure of a party at any time to require performance of any obligation under this Agreement is not a waiver of that party’s right:
- to claim damages for breach of that obligation; and
- at any other time to require performance of that or any other obligation under this Agreement, unless written notice to that effect is given to the other party.
- A waiver of any provision of or right under this Agreement:
- must be in writing signed by the party entitled to the benefit of that provision or right; and
- is effective only to the extent set out in any written waiver.
14. GOVERNING LAW
The laws of New South Wales govern this Agreement.