Terms & conditions
1. About this agreement
Who these terms apply to
These terms apply to services provided by Digital Garden Pty Ltd, trading as Digital Garden (“we”, “us” or “our”), to the client identified in our proposal (“you” or “your”).
Documents forming the agreement
The accepted proposal or statement of work, these terms and any agreed written variations form the agreement. The proposal sets out the services, deliverables, fees and project-specific arrangements.
These terms prevail unless the proposal expressly identifies the relevant term and states that it replaces it. A separately negotiated agreement signed by both parties prevails to the extent of any inconsistency. Terms in your purchase order do not amend this agreement unless we expressly accept them in writing.
Accepting the agreement
We will provide these terms before you accept the proposal. Acceptance occurs when your authorised representative signs the proposal or expressly accepts it in writing, including by email.
Definitions
“Deliverables” means the work expressly included in the proposal, including websites, applications, platforms, designs, reports and other digital products.
“Business days” exclude weekends and public holidays in New South Wales, Australia.
2. Services and scope
What is included
We will perform the agreed services with reasonable care and skill. Fees cover only the scope and assumptions described in the proposal. Anything not expressly included is excluded unless agreed in writing.
What is excluded
Unless included in the proposal, services do not include content writing or entry, migration, third-party licence fees, independent penetration, load or accessibility testing, formal compliance certification, ongoing maintenance or support, or new requirements introduced after acceptance.
Your project representative
You will nominate an authorised representative to coordinate instructions, approvals and consolidated feedback. We may reasonably rely on that representative’s instructions. You are responsible for resolving conflicting feedback within your organisation.
3. Timelines and client responsibilities
Project schedules
Timelines are indicative unless the proposal expressly states that a particular deadline is binding. They depend on the agreed scope, assumptions, access, approvals and your timely participation.
Information, access and feedback
You must provide accurate requirements, content, information, system access, decisions and consolidated feedback reasonably required for delivery.
Unless another period is agreed, you must respond within three business days. You must arrange cooperation from your other suppliers and obtain any internal or external approvals for which you are responsible.
Extensions to delivery dates
We are entitled to a reasonable extension where delivery is affected by a scope variation, an unavoidable delay of yours, third-party dependencies outside our control or another event outside our reasonable control.
We will notify you of material impacts and revised arrangements. You will not be charged extra for delays caused by our failure to meet our obligations.
Client delays and project holds
If a client dependency prevents meaningful progress for ten consecutive business days, we may give written notice placing the affected work on hold and release the reserved resources. Restarting is subject to reasonable resource availability; the original delivery dates may no longer be available.
We will identify reasonable additional remobilisation or rework costs caused by the hold and obtain your written approval before incurring them. These costs must not duplicate amounts already charged. A hold does not cancel the project or defer payment for completed milestones.
If a client-caused hold continues for 30 business days, we may require a restart plan. If you do not engage in agreeing a reasonable plan within ten business days of written notice, we may treat the continued failure to cooperate as a material breach and follow the termination process below.
Events outside reasonable control
The affected party must promptly notify the other of an event outside its reasonable control, take reasonable steps to minimise disruption and resume performance when practicable.
Affected obligations are suspended only to the extent and for the duration reasonably necessary. Payment for services already performed remains due.
If the event prevents substantial performance for more than 60 consecutive days, either party may terminate the affected services by written notice, with payment and handover accounted for under section 15.
4. Feedback, approvals and variations
Included feedback rounds
Unless the proposal states otherwise, fees include two rounds of consolidated feedback at each applicable stage:
- Prototypes and wireframes.
- Concept interface design.
- Interface design production.
A round means one complete, consolidated set of comments from your authorised representative.
Changes to approved work
Approval establishes the agreed basis for subsequent work. Changes to approved work, additional concepts, further feedback rounds, new requirements (frontend or backend) or changed technical assumptions (frontend or backend) may be variations.
Correcting our failure to meet the agreed scope is not a chargeable variation.
Approving additional work
Before additional work begins, we will explain its scope, price or charging basis, project management charges and likely timing impact. Written approval, including email, is required.
If a variation is not approved, we may continue the original scope where practicable or pause only the work affected by the unresolved change.
5. Review and acceptance
Review period
You must review each deliverable within ten business days of receiving written notice that it is ready for review, unless another acceptance period is agreed. Testing must use the agreed requirements and acceptance criteria.
Defects and corrections
If a deliverable materially fails to meet those requirements, you must identify the issue with reasonable detail during the review period. We will correct defects for which we are responsible and resubmit the affected work for review.
Minor defects that do not materially prevent the agreed use will be recorded and corrected, but do not prevent acceptance of the otherwise completed deliverable.
Acceptance and reminders
If you do not respond, we will issue a written reminder allowing a further five business days. If you still provide no approval or substantiated rejection, the deliverable will be treated as accepted for milestone and invoicing purposes.
Acceptance also occurs if you approve it in writing or authorise its use in production, except for an expressly agreed trial or test.
Rights after acceptance
Acceptance does not waive rights relating to latent defects, an agreed warranty or rights that cannot lawfully be excluded.
New preferences and requirements are variations rather than grounds for rejecting work that meets the agreed scope.
6. Fees and payment
Prices and payment terms
Fees, deposits, payment milestones and invoice due dates are stated in the proposal. Unless otherwise stated, prices exclude GST and invoices are payable within 14 calendar days.
Payment is by direct bank transfer unless agreed otherwise.
Additional work and project management
Additional services are charged at the rate agreed in writing. Any 20% project management loading must be expressly identified in the proposal or variation and is not added again to fees that already include project management.
We will not retrospectively increase agreed fixed fees or approved rates.
Approved expenses
Third-party purchases and non-cancellable commitments require your approval unless expressly included in the accepted proposal. Approved costs are payable by you on the agreed basis.
Milestone payments
Invoices become payable when the agreed milestone is achieved, including acceptance under section 5. A delay in your content, internal approvals, preferred launch date or other client dependency does not defer payment for a completed milestone.
Where we have completed the development and testing required for launch and only client-controlled items prevent launch, we may invoice a launch-linked milestone after explaining in writing how the agreed launch-ready work has been completed.
This does not apply where a material defect in our work prevents launch or the proposal expressly requires actual launch as the payment trigger despite client delays.
We may require the agreed deposit before reserving resources or commencing work. We may withhold production deployment and final handover until payments then due for that work have been received, subject to rights that cannot lawfully be excluded.
Disputed and overdue invoices
You must promptly notify us of a genuine invoice dispute, explain the reasons and pay undisputed amounts by their due date. Failure to notify within a particular period does not extinguish a legitimate claim. Both parties will work reasonably to resolve the dispute.
If an undisputed amount is overdue, we may suspend affected services after giving at least five business days’ written notice and an opportunity to pay. We will communicate the resulting scheduling impact. We will not delete your data as a debt collection measure.
You must reimburse reasonable external debt recovery costs actually incurred to recover overdue, undisputed amounts, to the extent permitted by law. No fixed collection penalty applies.
7. Project commitment, deposits and scope reductions
Commitment to the agreed project
Accepting the proposal commits both parties to the agreed project. Neither party has a general right to terminate a fixed-scope project for convenience.
You may request cancellation or a reduction in scope, but it takes effect only by written agreement, unless a contractual or statutory termination right applies.
Treatment of deposits
Deposits are advance payments towards the project and are credited against amounts properly payable. They support mobilisation and resource planning and are not automatically refundable simply because you change your mind.
Equally, they are not automatically forfeited regardless of work or loss.
Agreed cancellation costs
If we agree to an early cancellation or reduction, the settlement may cover work completed, approved non-cancellable commitments and reasonable, demonstrable net losses directly caused by the cancellation, including reserved capacity we cannot reasonably redeploy.
We must take reasonable steps to mitigate loss, deduct costs saved and avoid double recovery. Any settlement and treatment of deposits must be recorded in writing.
Reducing the scope
A scope reduction does not automatically reduce the price by an item’s standalone estimate. We will account for completed work, dependencies, commitments, costs saved and the basis of any package discount.
The agreement continues on its existing terms until a change is agreed.
8. Third-party services, hosting and integrations
Third-party platforms and licences
Third-party software, APIs, token usage, hosting, licences and platforms are subject to their own terms, charges and technical limitations. It is wholly the responsibility of you to monitor your accounts with these third-party providers and any price increases, deprecation or escalating usage (which often increase operating costs).
We will identify material dependencies known to us and obtain approval for chargeable commitments.
Integration assumptions
Integration estimates rely on the documentation, access, functionality and requirements available when quoted.
If these prove materially incomplete or different, we will explain the impact and obtain approval for a variation before extra work proceeds.
Third-party failures and changes
We are responsible for our selection, configuration and integration work within the agreed scope. We do not guarantee the availability, performance or future compatibility of services outside our control.
Assistance with third-party outages or changes is included only where expressly agreed; otherwise it requires an approved variation.
Separate service schedules
Hosting, maintenance and subscriptions require service-specific schedules covering inclusions, responsibilities, service levels, fees, minimum terms, usage limits, renewal, price changes, exit and cancellation.
These terms do not create an unstated minimum subscription period, automatic renewal or service-level commitment.
9. Client content and legal requirements
Your content and permissions
You retain ownership of materials you supply and grant us permission to use them to perform the services.
You are responsible for ensuring that those materials and your instructions are accurate, lawful, appropriately licensed and supplied with necessary consents.
Content approval and legal requirements
You are responsible for approving published content and obtaining advice about legal requirements specific to your organisation, activities and industry.
We remain responsible for compliance obligations applicable to our services and requirements expressly included in the scope.
Licensed assets
Third-party images, fonts and other assets remain subject to their licences. Use outside the licensed purpose may require additional permission or payment.
Accessibility and outcomes
We will work to the accessibility standard and testing scope specified in the proposal.
Accessibility can be affected by content, integrations and later changes; ongoing audits or certification are included only if expressly stated.
We do not guarantee search rankings, traffic, revenue or other commercial outcomes unless expressly agreed.
10. Warranty, hypercare and support
Warranty and hypercare periods
Our proposal for your project must specify any contractual warranty or hypercare period, its commencement and inclusions. Warranty and hypercare are distinct services.
A defect means a failure of our work to meet the agreed requirements; a new feature or preference is a variation.
Covered defects and exclusions
During an agreed defect warranty, we will correct covered defects notified within the stated period without additional charge.
The warranty does not cover issues to the extent caused by unauthorised changes, misuse, client content, third-party failures or changes, or operation outside the agreed environment.
These exclusions do not excuse defects caused by our work.
Changes by other suppliers
Third-party access alone does not void the warranty. Investigation or repair is chargeable only to the extent an issue falls outside our obligations and charges are approved.
Expiry of a contractual warranty does not remove rights that cannot lawfully be excluded.
Ongoing maintenance and system access
Unless expressly included, ongoing monitoring, patching, upgrades, backups, incident response and maintenance are separate services.
You must provide suitable authorised access for agreed support. We are not responsible for failure to perform affected services to the extent reasonably prevented by unavailable access or client instructions, provided we notify you and take reasonable mitigation steps.
11. Security, privacy and customer data
Security safeguards
Each party must comply with privacy and security laws applicable to it.
We will maintain reasonable technical and organisational safeguards appropriate to the information we handle and the services we provide, including access controls, secure credential management, multifactor authentication where supported and updates to systems under our management.
Project-specific responsibilities
Project-specific security requirements, data residency, backup, recovery, monitoring and incident response responsibilities must be identified in the proposal or service schedule.
New requirements may require an agreed variation. We will not guarantee absolute security or uninterrupted operation.
Your security responsibilities
You must manage your users and credentials securely and tell us before supplying sensitive or specially regulated data so appropriate handling arrangements can be agreed.
Production personal information must not be placed in test environments without agreed safeguards.
Data use and incident notification
We will use client data only to provide the services or as otherwise authorised or required by law. Personnel and subcontractors with access must be subject to appropriate confidentiality obligations.
We will notify you without undue delay after becoming aware of a security incident affecting client data in our custody or control and cooperate on containment, investigation and legally required notifications.
Remediation and data retention
Responsibility for remediation depends on the cause and the agreed obligations. Remediation outside our obligations may be chargeable only on an agreed basis.
At the end of the services, data return, retention and deletion will follow agreed arrangements and applicable law. We may retain records reasonably required for legal, insurance and accounting purposes, subject to continuing protection.
12. Intellectual property and confidentiality
Ownership of custom deliverables
Ownership of intellectual property we own in custom final deliverables created specifically for your project transfers to you when all amounts due for those deliverables have been paid.
Before then, any supplied access is for agreed review and testing unless we authorise wider use.
Our tools and reusable materials
We retain our pre-existing and independently developed code, tools, templates, methods, know-how and reusable components, including generic improvements that do not disclose your confidential information.
We also retain unused concepts and working materials unless the proposal expressly includes them.
Your licence to embedded materials
Once the relevant fees are paid, you receive a perpetual, non-exclusive, royalty-free licence to use and modify our retained materials embedded in the deliverables as needed to operate, maintain and develop those deliverables, including through another supplier.
This does not permit separate resale or exploitation of our tools as standalone products. Open-source and third-party materials remain subject to their own licences.
Proposals and pricing
Our proposals, estimates and pricing materials remain ours and are confidential, but may be shared internally and with professional advisers for evaluation, procurement and project administration, or as required by law.
Confidential information
Each party must protect the other’s confidential information, use it only for the agreement and disclose it only to people who need it and are subject to appropriate obligations.
This does not cover information lawfully public, independently developed or lawfully obtained elsewhere, or prevent legally required disclosure.
Confidentiality continues after the agreement ends.
13. Subcontractors and conflicts
Subcontractors and conflicts of interest
We may use appropriately qualified subcontractors, subject to any agreed approval, location or security restrictions. We remain responsible for their work as part of our services.
We will notify you promptly of a material conflict of interest affecting delivery and work with you on reasonable management measures.
14. Non-solicitation
Protecting our team
During the project and for 12 months after the last substantive services, you must not, without our written consent, directly target and solicit an employee or contractor who was materially involved in your project to leave or reduce their engagement with us to work for you directly or through an intermediary.
Recruitment exceptions
This restriction does not cover general advertising, unsolicited approaches by the individual or relationships you can demonstrate pre-dated our introduction.
It applies only to the extent reasonably necessary to protect our legitimate business interests and permitted by law.
Placement fees and remedies
If we consent to a direct engagement, you must pay Digital Garden a placement fee of $60,000 plus GST, unless otherwise agreed in writing. The fee is payable before the direct engagement commences.
If a direct engagement occurs without our consent in breach of this agreement, Digital Garden may seek remedies available at law, including proven loss, subject to mitigation and the applicable liability provisions.
15. Suspension, termination and handover
No termination for convenience
Neither party may terminate a fixed-scope project merely by giving notice or changing its business priorities.
This does not restrict statutory rights or a termination right expressly agreed in a service-specific schedule.
Termination for breach
Either party may terminate for a material breach if the other fails to remedy it within 14 calendar days of receiving written notice describing the breach and the required remedy.
Either may terminate immediately for a material breach incapable of remedy. Rights relating to insolvency apply only to the extent permitted by applicable law.
Suspension of services
We may immediately suspend only the affected services where reasonably necessary to address unlawful activity or a serious security risk, notifying you promptly and taking reasonable steps to minimise disruption.
Suspension for non-payment follows section 6. A suspension is not an automatic cancellation.
Final account and cancellation losses
On termination, you must pay for services properly performed and approved non-cancellable commitments incurred up to the termination date.
We will account for advance payments, deduct amounts properly due and refund any surplus.
If termination results from your breach, we may also claim demonstrable losses recoverable at law, subject to mitigation, costs saved and no double recovery.
If termination results from our breach, this clause does not limit your lawful remedies.
Handover and transition
After payment of amounts properly due for relevant work, we will hand over completed, paid-for deliverables in a reasonably accessible digital format, subject to intellectual property and third-party restrictions.
We will not withhold your pre-existing materials or data solely to secure a disputed debt. Additional transition assistance requires agreement on scope and fees.
Continuing obligations
Payment, intellectual property, confidentiality, accrued rights, liability and provisions intended to survive continue after termination.
16. Liability
Statutory rights
Nothing in this agreement excludes, restricts or modifies rights, guarantees or remedies that cannot lawfully be excluded, including under Australian Consumer Law.
This section applies only to the extent permitted by law.
Financial liability cap
Subject to the exceptions below, our total aggregate liability arising out of or in connection with a fixed-scope project, whether in contract, negligence or otherwise, is limited to the total fees paid or payable to us for that project, excluding GST and third-party pass-through costs.
For a claim relating solely to recurring services, the cap is the fees paid or payable for those services in the 12 months preceding the first event giving rise to the claim, or their first 12 months if the event occurs in the first year.
A claim spanning both must not result in double recovery.
Excluded losses and data restoration
Neither party is liable for indirect or consequential loss, or loss of profit, revenue, opportunity or anticipated savings.
Reasonable direct costs of restoring data damaged by a party’s breach are not excluded merely because they concern data, but remain subject to the applicable cap.
Exceptions to liability limits
The caps and exclusions do not apply to fraud, wilful misconduct, death or personal injury, or liability that cannot lawfully be limited.
The exclusion of financial losses does not excuse payment of agreed fees or other amounts properly due, but does not create an entitlement to unearned fees or a cancellation penalty.
Shared responsibility and mitigation
Each party’s liability is reduced to the extent the other party caused or contributed to the loss. Each must take reasonable steps to mitigate loss.
We are not liable for client or third-party acts to the extent they caused the loss, without limiting our responsibility for our subcontractors or our own work.
17. AI-enabled services
AI service scope and subscriptions
AI services and tools made available on your project’s product (either frontend or backend) are included only where expressly described in the proposal.
The proposal or service schedule must identify relevant providers, permitted data use, hosting arrangements, usage allowances, recurring charges and review responsibilities.
Output limitations and human review
AI-generated outputs may be inaccurate, incomplete or unsuitable for a particular use.
Unless expressly included, the services do not involve professional legal, medical or financial verification or a guarantee that outputs are unique or free from third-party rights.
You are responsible for appropriate human review before publication or consequential use. We remain responsible for providing the agreed configuration, safeguards and testing with reasonable care and skill.
AI data use and provider changes
You are responsible for establishing and maintaining your own accounts with AI providers, accepting their terms, paying all subscription and usage charges directly, and monitoring usage, spending limits and provider notices.
Digital Garden will configure integrations within the agreed scope. Changes required because of provider pricing, terms, model availability or service changes may require a separately approved variation.
We will not use your confidential information to train general-purpose models, or authorise a provider to do so, without your express written permission.
18. Disputes and general terms
Resolving disputes
Each party must first refer a dispute to a senior representative and try in good faith to resolve it within ten business days. If unresolved, the parties will consider mediation before proceedings.
This does not prevent urgent relief, recovery of an overdue undisputed debt or exercise of statutory rights. Undisputed obligations continue where reasonably practicable.
Changes and notices
Changes require written agreement, including email. Updated website terms do not retrospectively change an existing agreement.
Notices must be sent to the nominated contact email or another address notified in writing.
Assignment and enforceability
Neither party may assign the agreement without the other’s written consent, not to be unreasonably withheld.
A failure to enforce a right is not a waiver. If a provision is unenforceable, the remaining provisions continue to the extent permitted by law.
Responsible business practices
We comply with applicable anti-slavery and human trafficking laws and are committed to identifying and addressing modern slavery risks in our operations and supply chain.
Governing law
The agreement is governed by New South Wales law. Both parties submit to the non-exclusive jurisdiction of its courts.