1. Deliveries, feedback, delays and rounds of changes
All feedback from the client to Digital Garden must be delivered back to us within 2 business days from delivery (our default is 2 business days client feedback turnaround to keep to timeframes, unless explicitly stated otherwise). For example, should Digital Garden deliver the client a prototype at 2.40pm on a Friday, we will require feedback to us by 2.40pm on Tuesday.
It is vital to note that should feedback be delayed whatsoever, delays are not like-for-like. A day’s delay in feedback from the client does not equate to a day’s delay in Digital Garden’s next version delivery to the client.
Our production schedule is tightly scheduled to best utilise our resources, therefore - should a delay occur in feedback - Digital Garden may need to wait for another free window of resource time to complete work based on feedback for the next version to be delivered back to the client. Unfortunately, we cannot rework the agency’s entire production schedule across all projects to accommodate one client’s delay, and may not be able to ‘make up’ for the delay later in the project. For a tightly scheduled project, one day’s delay may irreparably impact the ultimate deadline date.
If not the fault of Digital Garden, we cannot remedy or take responsibility for any missed deadline/launch due to a delay in feedback or the provision of material or information critical to the project.
Rounds of changes
Prototype - 3 rounds of feedback on the prototype, unless otherwise stated.
Concept - 3 rounds of feedback, unless otherwise stated.
Design Production - 2 round 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 hourly rate of $180 per hour plus 20% project management, by mutual prior agreement.
2. Clients responsibilities with regard to copyright
(a) In situations where the client provides images, text, animations, layouts or any other content for their website they are legally responsible for ensuring that this material does not infringe any copyright or other laws.
(b) 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. The license may not permit them to be used in publicity material. The website owner 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.
3. Non solicitation of Digital Garden’s staff
(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 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 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.
4. Internet marketing
If internet marketing services (SEO, SEM, PPC etc) has not been agreed as part of the contract the client must be aware that Digital Garden is not responsible for ongoing web site promotion. Should the client require the site to be promoted on an ongoing basis a separate contract must be agreed. The order in which websites are ranked in the natural search results is controlled by the search engines. While we can implement some optimising measures in the initial design and build stage of the website, it is impossible to make any guarantees on ranking position. Extra to this Digital Garden cannot guarantee any website ranking positioning for any keywords under any conditions. This is a result of the varying nature of the search engine algorithms, and also a result of external factors determining ranking positioning, such as the client's own authored content.
5. Registration charges
All third party costs shall be met by the client unless otherwise stated.
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.
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. NOTE. All Digital Garden services require project management, and our costs for this service are 20% of any quoted service costs.
8. Project delivery
The project schedules, timelines and delivery dates expressed by Digital Garden in this document, any other document or by any other means of communications are indicative estimates only. There may be occasions where product delivery or demonstration of completion of works does not correspond to these expressed schedules, timelines or dates. Projects delivery may be delayed as a result of 3rd party vendors, internal delays or delays in the provision of client feedback, compatible materials or milestone sign off.
9. 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.
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 Customer 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 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.
11. Payment – Refund policy
After work on a website commences, advances are not refundable.
12. Payment methods
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.
13. 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 until full payment has been received.
14. Future support
Your project will be handed over as a fully functioning, completed work. Unless it has been agreed beforehand, Digital Garden is not responsible for future support. Support can be provided upon request for an agreed fee.
15. Access to client hosting space
We may require ongoing access to our clients’ hosting space to allow us to support and monitor their websites. 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.
16. 3rd party impacts or conflicts
(a) If the client requires any 3rd party to access the development environment whilst the site is in 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 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 manages the website hosting accounts for certain clients. For these clients 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.
If at any point during the process of the web design a designer feels that the website is going to be used for an illegitimate purpose, then Digital Garden have the right to refuse to complete the website, this is for the protection of our clients, the consumer and ourselves, as we have a responsibility to all three.
18. Malicious attacks
If there is any malicious activity on the website once it has been completed, then there will be additional costs to amend any issues with the website.
19. Compliance with ecommerce, accessibility or other regulations
We design websites in accordance with the client’s specifications. It is the client’s responsibility to ensure that the website and its content comply with current online trading laws and regulations.
20. 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 3rd party service provider.
21. Website security
We cannot accept responsibility for any security breaches or malicious activities that adversely impact on the live website. We can advise upon request how the client can better secure their website. This may include implementing project specific security measures, and may also include referring the client to a dedicated 3rd party security service provider.
22. Customer data
Digital garden must:
(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 security of, or access to, the Customer's information or material.
23. 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 quotation and costing documents are supplied on a confidential basis and permanently remain the Intellectual property of Digital Garden.