The terms that apply to every project we take on, covering fees, warranties, hosting, intellectual property and everything in between.
Updated June 2018
Agreement means the General Terms of Service and the Statement of Work.
Client is the party to whom BluePixie is supplying the Services.
Client Materials means (a) all text, data, images, documents, reports, logos, trademarks, copy, electronic files, proofs, designs, product descriptions and other materials, whether electronic or in hard copy form, submitted to BluePixie by or on behalf of the Client for the purposes of providing the Services, and (b) any information or data that is imported by or on behalf of the Client in connection with the provision of the Services or the Client's use of technology services hosted by or on behalf of BluePixie.
Confidential Information means any information of or relating to the business, data, systems, software and information technology systems, finances, operations, customers, fees or pricing, which is or has been disclosed by a party to the other party or learnt or acquired by the other party during the provision of the Services, whether orally, electronically or in writing.
Fees means the service fees payable by the Client as may be specified in the SOW.
General Terms means these terms which are applicable to all of the Services being supplied.
Intellectual Property includes copyright, and all rights conferred under statute, common law or equity in relation to inventions (including patents), trademarks, designs, circuit layouts, domain names, rights in databases, confidential information, trade secrets, know-how, and all other proprietary rights, whether registered or unregistered, and all equivalent rights and forms of protection anywhere in the world, together with all right, interest or licence in or to any of the foregoing.
Personal Information has the meaning as defined in the Privacy Act from time to time. Privacy Act means the Privacy Act 1988 (Cth) and the Australian Privacy Principles contained in that Act, as amended from time to time.
Services means the services and any deliverables set out in the SOW and any further services agreed in writing between the parties.
Statement of Work (SOW) means a document setting out service requirements and the commercial terms including fees and pricing, set out in a quotation, proposal, client brief, order or a statement of work, as the case may be.
Term means the term specified in the SOW, including any renewals.
2.1 Upon acceptance by BluePixie of an order, an individual contract for the supply of Services will be formed incorporating these General Terms of Service.
2.2 If there is any conflict of meaning between information contained in the documents which form part of the Agreement, the order of precedence will be as follows: (a) the Statement of Work; (b) the General Terms of Service.
3.1 In the event of an increase in the costs of providing the Services, including without limitation, tax changes, exchange rate fluctuations or supplier cost increase, BluePixie reserves the right to review and request a variation to the Fees to take into account the impact of such changes.
3.2 The Fees cover work set out in a SOW. Any change to the SOW including a change to (a) the scope, nature, location or volume of the Services, or (b) the assumptions upon which the Fees are based, will be addressed as a Change Request and may lead to an adjustment in the Fees.
3.3 The parties will negotiate in good faith any variation to the Fees proposed by BluePixie. In the event that agreement cannot be reached, either party may terminate the Agreement by providing the other party with 90 days written notice.
4.1 The Client acknowledges and agrees that invoices must be paid to BluePixie within 14 days of receiving their invoice.
4.2 If the Client disagrees with any amount claimed in an invoice, it must notify BluePixie within 7 days of invoice receipt.
4.3 The method of payment is bank transfer. Account details will be specified in the invoice.
4.4 If an undisputed invoice is not paid when due, BluePixie may, in its sole discretion, suspend supply of the Services.
5.1 Each of the parties warrants to the other that (a) it has full power and authority to enter into and perform the Agreement; (b) it shall comply, and shall ensure that its employees and agents comply, with any Law; and (c) it has or will acquire all Intellectual Property rights needed to perform its obligations under the Agreement.
5.2 The Client warrants that (a) it will not do, and will not direct or request BluePixie to do, anything which may breach any Law or applicable industry code; (b) it will make any decisions and provide any approvals, data, documentation and information reasonably required by BluePixie, promptly; (c) the Client Materials (i) do not contain any matter which is obscene, defamatory, or illegal, (ii) are not false, misleading or deceptive or likely to mislead or deceive, (iii) are up to date, technically accurate, complete and correctly formatted for use by BluePixie in the provision of the Services, and (iv) are free from viruses and do not contain malware, spyware or any other code which could alter or disrupt any program, product, service or device; (d) the use of the Client Materials by BluePixie for the purposes of providing the Services and all matters incidental thereto will not breach any Law or infringe the Intellectual Property rights or other rights of any person or entity; and (e) it will pay to BluePixie any additional costs incurred by BluePixie in converting or processing Client Materials which are not in compliance with this clause.
5.3 BluePixie warrants that it will (a) use commercially reasonable endeavours to ensure that the Services are free from material defects in design, materials and workmanship and are provided substantially in accordance with any specification set out in a SOW; (b) only store and use Client Materials (i) to the extent necessary to provide the Services to the Client (and any back-ups for those Services), (ii) to the extent necessary to perform its obligations or enforce its rights under this Agreement, or (iii) where required or authorised by Law; and (c) implement reasonable and appropriate information security practices regarding the protection of Client Materials as required by law, including administrative, technical and physical security processes.
5.4 The Client acknowledges and agrees that BluePixie makes no guarantee regarding the results, outcomes or profitability of any campaigns conducted by BluePixie for or on behalf of the Client.
Except as expressly provided: 6.1 Nothing in this Agreement conveys to either party any right, title or interest in the other party's pre-existing Intellectual Property. 6.2 Intellectual Property in all items, information, materials, and works developed or produced by BluePixie in connection with the provision of the Services will be the sole and exclusive property of BluePixie. 6.3 All Intellectual Property rights in the Client Materials remain at all times the sole and exclusive property of the Client and no licence of these rights is granted to BluePixie except for a right to use and reproduce the same for the purposes of providing the Services or as may be otherwise specified in the Agreement.
7.1 Subject to the Client's obligation to pay the Price to BluePixie, either party's liability in contract, tort or otherwise (including negligence) arising directly out of or in connection with this Agreement or the performance or observance of its obligations under this Agreement and every applicable part of it shall be limited in aggregate to the Price.
7.2 The liability of a party is reduced proportionately to the extent to which the liability is caused, or contributed to, by the other party.
7.3 Each party must do what is reasonable in the circumstances to mitigate and minimise any costs, damages, expenses and/or losses incurred or suffered by the other party in connection with any claim under the Agreement.
7.4 The Client acknowledges that BluePixie does not control the transfer of data over communications facilities, including the internet, and that the Services may be subject to limitations, delays and security issues inherent in the use of such communications facilities (“service limitations”). BluePixie is not responsible for any delays, service level failures or data breaches caused by such service limitations including corruption, piracy or malicious third party attacks which are beyond the reasonable control of BluePixie. The Client expressly waives any claim against BluePixie for compensation, service credits, damages or loss of data arising from the service limitations and agrees their occurrence will not constitute a breach of this Agreement.
8.1 This Agreement shall be effective on the date the SOW is signed and shall continue, unless terminated sooner in accordance with Clause 8.2, until the Completion Date.
8.2 Either party may terminate the Agreement by notice in writing if (a) the other is in breach of any material obligation contained in this Agreement, which is not remedied (if the same is capable of being remedied) within 30 days of written notice from the other Party to do so; or (b) if the Defaulter is or becomes insolvent or bankrupt, becomes an externally-administered body corporate under the Corporations Act 2001 or steps are taken by any person towards external administration; or (c) if any monies to be paid under the Agreement are not paid by their due date and remain unpaid for a period of 7 days after notice has been served requiring the payment default to be remedied.
8.3 On termination of the Agreement (a) the Client's right to use the Services ceases; (b) except for Fees that are the subject of a genuine dispute notified to BluePixie, the Client must immediately pay to BluePixie, without deduction, all outstanding Fees under the Agreement at the date of termination; and (c) BluePixie will, upon Client request, return any proprietary information or data of the Client (“Client Data”) generated in connection with the Services and stored on BluePixie systems. BluePixie shall be entitled to recover its costs in connection with the retrieval of Client Data.
8.4 BluePixie will have no obligation to maintain or make available any Client Data for longer than ninety (90) days following termination and may thereafter, unless legally prohibited or otherwise specified in a Statement of Work, permanently delete all such Client Data.
9.1 Each party shall, and shall use its best endeavours to ensure that its employees and agents, keep the Confidential Information confidential and not use or disclose the Confidential Information to any person other than (a) in confidence to that party's professional advisers to obtain professional advice; (b) as may be properly required for the purpose of the provision of the Services and the performance of any obligations under the Agreement but subject to any such person being made aware of, and undertaking to comply with, the obligations in relation to the Confidential Information as set out in this Agreement; (c) with the consent of the other party; (d) as may be required by any Law.
10.1 If a party is provided with, or has access to, Personal Information in connection with the Services, it must comply with the Privacy Act and any other applicable law in respect of that Personal Information.
10.2 If Personal Information is provided to BluePixie by or on behalf of the Client, then the Client (a) must do all things necessary, including obtaining all appropriate consents from individuals, providing notifications to individuals, and maintaining accurate, up to date and complete records, to ensure that BluePixie may lawfully use, process and disclose the Personal Information in connection with the provision of the Services; (b) acknowledges and agrees that, except as may be required by this Agreement, BluePixie is not required to take steps to ensure that any Personal Information has been collected in accordance with the Privacy Act; (c) must do all things reasonably requested by BluePixie to assist BluePixie to comply with the Privacy Act, including assisting in the updating of an individual's records where they opt out, and providing BluePixie with access to information held by the Client when an individual requests access.
10.3 If BluePixie collects Personal Information in the name of or on behalf of the Client (a) the Client must provide to BluePixie such collection statements, scripts, privacy policies and other materials necessary to ensure compliance with the Privacy Act; and (b) the Client acknowledges that where BluePixie is authorised or required by the Client to collect or otherwise deal with Personal Information on behalf of the Client, BluePixie does so as agent for the Client.
11.1 A Change Request must contain a detailed description of the proposed change, detail the effect (if any) on the Services, detail impact on the Fees and any agreed service levels, and contain a timeline for implementation, including any significant milestones.
11.2 The Client will, within a reasonable period of time, notify BluePixie whether it accepts the Change Request, wishes to renegotiate any aspect of it, withdraws it (if initiated by the Client), or does not accept it (if initiated by BluePixie).
11.3 Neither party has any obligation to proceed with any Change Request unless and until the parties have agreed in writing on the necessary variations to the Services, the Fees, any applicable timeframes and/or any other relevant terms of the Agreement to take account of the change.
12.1 Search engine rankings are dependent on numerous external factors, including the behaviour of competitors and the internal workings of search engines, both of which are beyond the direct control of BluePixie.
12.2 Since the search engines do not publish their ranking criteria or algorithms, a project of SEO nature is based on professional experience, opinions, toolset outputs and the professional expertise of the SEO team.
12.3 Improving rankings can take a number of months to achieve. For highly competitive keywords and newly established websites, improving rankings may take longer. If competitors commence or increase their SEO activity then rankings may fall and this is outside the direct control of BluePixie.
12.4 The Client needs to make changes to their website and content for the SEO services to be effective.
12.5 Unless agreed otherwise with BluePixie, the Client is solely responsible for their website and making changes to their website.
12.6 Where the Services include outbound email, the Client acknowledges that BluePixie cannot guarantee or control the delivery or the rate of delivery of these services, which are dependent upon accurate and up to date email addresses, suitable internet availability and connectivity, and various anti-spam and junk mail policies adopted by recipient email service providers as well as restrictions regarding the content, wording and graphics on the receiving server.
13.1 Relationship. The Parties acknowledge and agree that the Services performed by the Service Provider, its employees, agents or sub-contractors shall be as an independent contractor and that nothing in this Agreement shall be deemed to constitute a partnership, joint venture, agency relationship or otherwise between the parties.
13.2 Subcontracting. BluePixie may subcontract performance of all or any of its obligations under the Agreement and may substitute or change subcontractors but remains liable at all times for performance of its obligations by each subcontractor.
13.3 Notices. If either party gives or is required to give a notice to the other party under the Agreement, that notice must be in writing and delivered by post or emailed to the address specified in the SOW.
13.4 Use of logos. Unless the Client expressly specifies otherwise, in writing, BluePixie may use and publish the Client's logo for marketing purposes and otherwise disclose that the Client is a customer of BluePixie.
13.5 Governing Law. This Agreement is governed by the laws of New South Wales and the parties submit to the exclusive jurisdiction of the courts of that State.
14.1 On request, BluePixie may assist the client with purchasing a domain name for their site. Following the initial set-up of a domain, the ongoing renewal of the client domain name is solely the responsibility of the client.
15.1 If a client has their own hosting provider, they will be required to provide login details to BluePixie for the purpose of hosting the site.
15.2 The client remains responsible for renewing their hosting service as per their agreed terms with their hosting provider.
15.3 BluePixie is not responsible for client managed hosting accounts. If assistance is required by the client for post-launch hosting related issues, BluePixie can provide support at an hourly rate.
15.4 BluePixie is not responsible for any downtime, nor related costs or damages associated with the website being down for any period of time. If BluePixie is contracted by the client for matters relating to hosting, BluePixie will use commercially reasonable efforts to rectify the issues in the hosting platform in a timely manner.
15.5 Following the launch, the client is responsible for the backup of their site and content.
16.1 BluePixie offers managed hosting packages to clients. We have chosen Google Cloud Platform as our preferred hosting provider — the Google Cloud Platform terms of service can be viewed at cloud.google.com/terms. Fees will vary for each client depending on the size of the machine required to host the client website.
16.2 In some instances, BluePixie may integrate an additional service to enhance the site performance and security. BluePixie's managed hosting service includes the hosting of the client site, monitoring of downtime and resolution of any technical issues. Clients will be invoiced the agreed rate in advance on a monthly basis.
16.3 BluePixie is not responsible for any downtime, nor related costs or damages associated with the website being down for any period of time. In any event of downtime, BluePixie will use commercially reasonable efforts to rectify issues in the hosting platform in a timely manner.
BluePixie Digital