Terms & conditions
The standard terms and conditions of this master services agreement (“MSA”) will govern the proposal issued by Digital Garden responding to the Client’s specific statement of work (“SOW”) or scope of work (“scope”). The MSA and the proposal are when referred to together referred to as this/the/our agreement. If there is any conflict between this MSA and the proposal, this MSA will prevail unless the proposal expressly refers to the specific conflicting term or condition in this MSA and expressly specifies that the proposal’s replacement term or condition applies instead.
Digital Garden carries out services for user experience (“UX”) design, web user interface (“UI”) design, content strategy, development and project management. As a part of a services agreement with the Client, one, some or all of these services may be provided by Digital Garden as outlined in the proposal. Use of the term “website” – either in this MSA, the proposal or correspondence throughout the term of this agreement – is synonymous with the word “product”, “tool”, “app”, “design”, “multisite”, “report” or any deliverable output at the completion of the services (or “project”) provided by Digital Garden.
Project timelines provided in the proposal or during the project are indicative and do not form a binding part of this agreement, unless otherwise stated. Timelines are provided based on Digital Garden’s previous experience in completing services similar to those being requested by the Client in their scope as understood prior to the commencement of the project.
Timelines are based on an understanding that the Client will be able to provide any information, materials or feedback requested by Digital Garden within 3 business days, unless otherwise stated.
If the Client or any related corporations, vendor or third-parties delays the provision of any information, documentation, materials or feedback which are material to the project and have been requested by Digital Garden, this may affect the ability to adhere to the indicative timeline and dates or deadlines for deliverables. Digital Garden cannot be held responsible for any delays by the Client and any adverse consequences due to such delays.
Digital Garden reserves the right to alter pre-agreed project timelines if:
- the location/s in which it operates is/are subjected to a natural disaster
- the location/s in which it operates is/are declared to be under a state of emergency
- the location/s in which it operates is/are affected by a declared epidemic or pandemic
- its staff allocated to the project are affected by serious illness, injury or death
Digital Garden cannot be subject to penalty or the withholding of payment due to changes made under such circumstances.
Rounds of feedback
If the project includes the following services the following rounds of feedback are factored into project costs and timelines, unless otherwise stated:
- Prototype/wireframes - two (2) rounds of feedback, unless otherwise stated
- Concept UI design - two (2) rounds of feedback, unless otherwise stated
- UI design production - two (2) rounds of changes, unless otherwise stated
Additional concepts or rounds of changes
Any requests beyond the included design concept or rounds of changes will be billed by Digital Garden on time and materials at our standard hourly rate per hour plus 20% project management, by mutual prior agreement.
Access to client hosting space
If Digital Garden is not managing the Client’s website hosting we may require ongoing access to our clients’ hosting space to allow us to support and monitor their websites/digital products. This access is via a user ID and password combination, which the Client may change after the website is handed over. If the Client chooses to change the password we will no longer have access to the website & further support will not be possible.
The website will have a 30-day warranty after the first site goes live.
Future support and maintenance services
Your project will be handed over as fully functioning, completed work. It is essential to keep your website modules and core up to date for security purposes. Unless you have signed up for ongoing support and maintenance services, Digital Garden is not responsible for future support. Support services can be provided upon request for an agreed fee.
If there is any malicious activity on the website/digital product once it has been completed, then there will be additional costs to amend any issues with the website.
3rd party impacts or conflicts
(a) If the client requires any 3rd party to access the development environment whilst the site is on production, then the agreed warranty is null and void. Correspondingly any additional work required to identify or repair any issues resulting from access by any 3rd party are not covered under any agreement between Digital Garden and the Client. Any such work will be charged as extra at Digital Garden’s hourly rate, plus 20% project management costs. The same applies for the warranty period and for any period for which Digital Garden is commissioned for ongoing website/digital product maintenance.
(b) Digital Garden does not accept responsibility for any failure in any 3rd party software or other product outside of the warranty or covered service period.
(c) Digital Garden can manage the website/digital product hosting accounts the Client. In this circumstance, there are additional terms and conditions supplied specifically for that hosting service.
(d) Digital Garden endeavours to estimate as accurately as possible for any 3rd party integration work, based on all documentation (such as API guides), workflows, conversations and correspondence provided. Estimates are based on this information and our experience in prior integration work. However, Digital Garden reserves the right to (at any time) require that integration work be re-scoped and re-estimated, should it become clear that the expected time effort/resources will be insufficient to complete the integration work.
Client responsibilities with regard to content and copyright
In situations where the Client enters or provides images, text, animations, layouts or any other content for their website/digital product they are legally responsible for ensuring that this material does not infringe any copyright or other laws.
Certain materials including images and font licenses provided by Digital Garden may have been purchased under license from stock image suppliers. These images are generally only licensed for use on a website/digital product. The license may not permit them to be used in publicity material. The website/digital product owner (the Client) is legally responsible for ensuring that this does not happen. If you wish to use any images from the site for other purposes please contact us for clarification.
Unless explicitly stated otherwise by Digital Garden in a project proposal or agreement as being an included service, the Client is always responsible for the entry/population of text and image content into the developed website/digital product via the CMS. Access by the Client to the CMS to begin content entry/population will be dependent entirely on the progress of development and, once granted, the pace of content entered by the Client will likely determine the eventual go-live date the Client arranges.
Third-party and registration charges
All third-party costs shall be met by the Client unless otherwise stated.
The price quoted to the Client is only for the work specifically agreed to. Should the Client add to the scope of work, additional charges will apply. Correspondingly, should the Client scale back the scope of work, a refund is not guaranteed. The condition where a refund is not guaranteed includes when a total project discount of costs has been provided. Refunds may also only be provided if no work has commenced on an item that has been removed from the project scope, or de-scoped. Additional charges will be charged at Digital Garden’s hourly rate, noting that all Digital Garden is subject to an additional project management loading of 20% of any quoted service costs.
Unless otherwise agreed, payment is only accepted by direct bank deposit or cheque. If payment is made by cheque, then works corresponding to the payment will commence upon clearing of the cheque payment funds in Digital Garden’s account.
Payment of Balance
Invoices are only issued corresponding to pre-defined payment milestones or pre-agreed terms. Payment of invoices is required for works to commence on the quoted works. We reserve the right not to launch a website/digital product until full payment has been received.
Delay from the Client
Digital Garden retains the right to add supplementary project delay charges on select projects. This includes projects where the Client has expressly stipulated a definite project completion, delivery, or launch date as an integral part of our agreement, but subsequently places the project on hold. The delay fee covers expenses incurred by Digital Garden in organising resources beyond the prearranged project timeline to enable any subsequent modifications or support necessary for the project’s launch.
Conflicts of interest
Digital Garden warrants that it is not, nor will it come, under any obligation or restriction during the term of this agreement that would in any way interfere or conflict with providing the services. If any conflict of interest arises, Digital Garden will immediately notify the Client in writing of that conflict and endeavour to take steps requested by the Client to avoid or minimise that conflict.
Either party may terminate this agreement upon the provision of 30 days' written notice to the other party. Digital Garden may terminate the project immediately and without prior notice if the Client does not make payments for invoices issued, or if the Client obstructs Digital Garden’s ability to work on or complete the project.
(a) If the Client terminates the project prior to its completion, all deposits made up to that date are non-refundable. The Client will also be required to pay for any unpaid work or costs incurred by Digital Garden in relation to the project. Upon receiving any outstanding balance Digital Garden will provide works to the point of termination in disk format, conditional that the works can be provided in that format. If the works require additional costs to retrieve from or coordinate retrieval from a 3rd party, then these costs will be incurred by the Client.
(b) Digital Garden may immediately terminate this Agreement upon the Customer becoming Insolvent. The Client may immediately terminate this Agreement upon Digital Garden becoming insolvent.
Deposit payments and work payable to date
Should the Client wish to cancel the project after payment of any first deposit amount, then any initial project deposit amounts are non-refundable. Should the Client wish to cancel at any other point during the process they shall remain liable for the work that has taken place and shall be invoiced accordingly.
Website/digital product security
We cannot accept responsibility for any security breaches or malicious activities that adversely impact the live website/digital product. We can advise upon request how the Client can better secure their website/digital product. This may include implementing project-specific security measures, and may also include referring the Client to a dedicated 3rd party security service provider.
Digital Garden will:
(a) Do all things that a reasonable and prudent entity would do to ensure that all Customer Data is protected at all times from unauthorised access or use by a third party or misuse, damage or destruction by any person;
(b) provide protective measures for the Customer Data that are no less rigorous than accepted industry standards and commensurate with the consequences and probability of unauthorised access to, or use, misuse or loss of, the Customer Data;
(c) without limiting (a) or (b), comply with all security regulations or procedures or directions as are specified in the Contract or given by the Customer from time to time regarding any aspect of the security of, or access to, the Customer's information or material.
Internal security processes
To keep our systems and computers secure Digital Garden follows the following procedures:
- Protect important data such as passwords and source code behind 2FA/MFA
- We keep all the websites that we manage code up-to-date and secure with regular patching, as required
- Keep software up to date on computer hardware and browsers, particularly security updates
- We have a secure password vault installed on each computer to generate passwords
- Have antivirus scanning software installed on all machines
Non-solicitation of Digital Garden’s staff and contractors
(a) The Client must not, and must ensure that its Related Corporations do not, for any reason, during the term of the Agreement or within twelve months after its termination, directly or indirectly induce, solicit, engage or employ (or procure the inducement, solicitation, engagement or employment of) any officer, employee or contractor (including any contractors who aren't currently engaged with Digital Garden, however, have specifically worked on the Client's project) of Digital Garden unless the Client or its related corporation has obtained Digital Garden’s prior written consent.
(b) If the Client or any of its related corporations directly or indirectly induces, solicits, engages or employs (or procures the inducement, solicitation, engagement or employment of) any officer, employee or contractor (including any contractors who isn’t currently engaged with Digital Garden, however, have specifically worked on the client's project) of Digital Garden, the Client must pay a placement fee of A$60,000 (exclusive of GST) to Digital Garden for each officer, employee or contractor it has induced, solicited, engaged or employed (or procured the inducement, solicitation, engagement or employment of), which the Client acknowledges is a fair and reasonable estimate of the cost to Digital Garden of replacing each such officer, employee or contractor of Digital Garden.
Laws and regulations
Exclusion of Liability
Except in relation to property damage (excluding loss of data), injury or death, it is agreed that either party will not be liable for any damages or loss incurred by either party including, loss of revenue, loss of opportunity and loss of profit. The parties also agree that neither party will be liable for any damages incurred indirectly by any 3rd parties related to the parties or the parties’ businesses, where the 3rd party may seek legal action or compensation of any kind from either party.
Legal content and use of website
If at any point during the process Digital Garden feels that the website/digital product is going to be used for an illegitimate purpose, then Digital Garden has the right to refuse to complete the website, this is for the protection of the Client, the consumer and ourselves, as we have a responsibility to all three.
Compliance with eCommerce, accessibility or other regulations
We design websites/digital products in accordance with the Client’s specifications and accessibility WCAG AA best practices. It is the Client’s responsibility to ensure that the website/digital product and its content comply with current online trading laws and regulations.
Compliance with laws and regulations
We cannot accept responsibility for any failure to comply with laws and regulations related to accessibility, selling online or those related to a specific business or trade. We can research this on the Client’s behalf upon request, but in any business where complex compliance issues may exist, we recommend that the Client takes legal advice from their company lawyer or other relevant third-party service provider.
Digital Garden intellectual copyright
Digital Garden holds intellectual copyright of any material, including, solution designs, source code and original images created for the Client until payment of the final invoice. At this time we will transfer this intellectual copyright to the Client. All website/digital product quotations, estimates, proposals, presentation slide decks and costing documents are supplied on a confidential basis and permanently remain the Intellectual property of Digital Garden.
Anti-human trafficking and slavery
Digital Garden voluntarily complies with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes, including the Commonwealth Modern Slavery Act 2018.