Web Design Terms Of Service 

The following agreement details the standard terms & conditions when requesting Design work from Peabody Digital. If entering into a design agreement with Peabody Digital, then you (the client) must agree to all Terms & Conditions detailed below.
These Terms & Conditions do not cover Hosting, Domain Names or the Service Level Agreement of Peabody Digitals subscription services. These can be found on our Website Hosting Service Agreement page.

1. DEFINITION OF TERMS
• Peabody Digital – the designer and author of the work.
• The Client – the entity which enters into a contract with Peabody Digital ie. you.
• The Work – the subject matter of the contract between the Client and Peabody Digital.
• Website – a collection of web pages and associated code which forms an integrated online presence. Search Engine Optimisation is not a standard part of a website and is an additional service.
• Search Engine – a website which contains a directory of websites on the Internet enabling users to find websites by subject matter classification.
• Search Engine Optimisation – the process of attempting to maximize the ranking of a website with select search engines.
• Domain Name – the root address of a website, e.g. www.webaddress.com. All such names must be registered with the appropriate naming authority, which will usually charge a fee.
• Hosting – The service of providing a server where your website physically resides so that it is accessible via the internet.
• Link, Hyperlink – a ‘clickable’ link embedded on a web page which may take the form of a graphic or text.
• Publication – The time at which a website is uploaded to the web server in the location at which it will be available for viewing by the general population (or whatever the user group may be). For print-based work, publication is the time at which we provide you with print-ready documents, which can be sent to a professional printer.
• Approval Period – The period by which the client can review design work performed and submit requests for changes. The current review period is 7 days or the time between the start of the Approval Period and the point in time where the client has given written or verbal approval of the work – whichever is the lesser period.
• Retainer – An amount paid to Peabody Digital to ensure priority service and contract continuance. Retainers are usually only charged over a limited duration while a project contract is in place.

2. FEES
2.1 Fees Payable
Where a Proposal has been agreed that includes a Payment Plan, then all fees will be due according to the payment plan. In the absence of a Payment plan, our standard arrangement for work is that 50% of the agreed fee for The Work will be paid prior to work commencing. The remaining 50% shall become due when the Work is completed to the reasonable satisfaction of the Client but subject to the terms of Clause 4.3 Approval of Work and Clause 4.4 Rejected Work hereof.

2.2 Maintenance Fees
Design Contracts with Peabody Digital do not include maintenance fees. A Core maintenance service is included with the Peabody Digital subscription, and additional maintenance can be requested. Terms & Conditions of ongoing maintenance can be found under the subscription SLA.

2.3 Restart Fees
Restart Fees apply when Peabody Digital is engaged in a project, but the project is incomplete and any work on the project has been delayed due to reasons not attributable to Peabody Digital. Peabody Digital will not charge a restart fee until a period of 28 days has passed where no work has been undertaken. The standard restart fee is $550 (GST Inc) or 50% of the project budget (whichever is the lesser amount). The fee is charged just prior to recommencement of work. Invoices for Restart Fees must be paid in full before Peabody Digital can recommence work. Payment of a Restart Fee does not guarantee an immediate recommencement of work. Peabody Digital will schedule recommencement of work at the earliest available time once the Restart Fee has been paid in full.

2.4 Refunds
The client agrees that Peabody Digital will not provide a refund for any Design & Development work performed.
Where a deposit has been paid and the client subsequently decides that the work is no longer wanted, then the client would be deemed as breaking the contract and a refund cannot be issued. Peabody Digital may, at its discretion, issue a credit if deemed applicable. In such a case any work performed under the contract, as well as any costs and charges incurred by Peabody Digital as part of performing said work will be calculated as the total service rendered. The amount of the total service rendered will be deducted from the deposit before raising a credit. If the amount of the total service rendered exceeds the deposit amount then a credit does not apply and the difference becomes an amount due by the client to Peabody Digital as detailed under clause 4.7 Early Termination of Contract. Where Peabody Digital deems a credit is applicable, then a cancellation fee, being 15% of the total deposit paid will apply. Where there is insufficient credit to cover the administration fee, then no credit will be raised, but also no amount for services rendered will be deemed to be due to Peabody Digital by the client. The client accepts that it is entirely up to Peabody Digital to determine whether or not a credit applies, the amount of credit that should be raised as well as what services the credit can be used towards.

3. DISCLAIMERS
3.1 Third Parties
Peabody Digital may use a number of third parties in the process of providing design services. These may include, but also may not be limited to WordPress, WordPress plugins, repositories of stock images or graphics and the services of a professional printer. While we will endeavour to do all we can to ensure the quality and continuity of these services, you cannot hold us responsible for any loss financial or any other kind, which is a result of the legal or technical limitations of these third-party services.

3.2 Maintenance and Correction of Errors
Under this design agreement, Peabody Digital takes no responsibility for the functionality or maintenance of a website after the work has been completed. Core maintenance services are provided as part of the subscription SLA, however, websites can be changed by the client and under some circumstances may be the victim of malicious modification from a known or unknown party. In these instances, you the client must bare the cost of rectifying these modifications.

3.3 Consequential Loss
Under no circumstances will Peabody Digital be responsible or liable for financial or any other loss or damages as a result of services provided.

3.4 Status and Duration of Offer
Proposals and offers are valid for a period of 30 days from the date issued. Peabody Digital is not bound to honour offers that have expired. Where a deadline has been specified, the deadline must be agreed prior to the commencement of work and shall be deemed a legally binding part of the agreement. Where the work or project extends past the stated deadline, then a grace period of 7 days applies at the discretion of Peabody Digital. After the expiration of this 7 day period then Peabody Digital is no longer legally bound to meet agreed costs or deadlines and other work or projects may be given priority.

3.5 Search Engine Listing
A Design agreement unless specifically requested by the client does not include Search Engine Optimisation services. In performing Design services, Peabody Digital will not knowingly do anything that may adversely impact on the clients’ Search Engine Ranking, but this does not mean that your changes will not have an adverse effect on your Search Engine results. The client accepts that it is the Search Engine and not Peabody Digital who determine whom they list and whom they will not list, and how high a listing shall be ranked. The client also acknowledges that Peabody Digital does not control Search Engines’ algorithms and huge shifts can appear daily, weekly and even hourly.
Where Search Engine Optimisation services have been requested, Peabody Digital will perform a series of optimisation services. However, in this instance, the client accepts that it is the Search Engine and not Peabody Digital who determine whom they list and whom they will not list, and how high a listing shall be ranked. As such Peabody Digital cannot be held responsible for whether or not the client’s website will be listed nor what ranking the clients’ website will achieve.

4. COMPLETION OF WORK AND PAYMENT
4.1 Completion of Work
Peabody Digital warrants completing the Work in accordance with this agreement to the specifications provided by the client. We will not charge more than the amount previously agreed unless the client has varied the specifications of the Work since the agreement, or a restart fee is being charged. Peabody Digital will not undertake changes to the specifications of the Work which would increase the cost, without prior consent from the client. In the event that changes do occur, then all terms and conditions will still apply, with the exception that cost and deadline may differ from the initial agreement. Under these circumstances, a retainer fee may apply.

4.2 Supply of Materials.
The Client is to supply all materials and information required for Peabody Digital prior to the commencement of work. Where during the process of completing the design work Peabody Digital request additional materials from the client then the client must provide the materials within 2 days or a longer period only if such a period has been specified by Peabody Digital. Such materials may include but are not limited to, photographs, written copy, logos and other printed materials.
Where the client’s failure to supply materials is delayed by more than 14 days during any established deadline, Peabody Digital has the right to invoice the client for any part or parts of the Work already completed.
Where the client’s failure to supply materials leads to a delay in performing work on the project by more than 28 days, then the client accepts that Peabody Digital may charge a restart fee to recommence work as per 2.4 Restart Fees.

4.3 Approval of Work
At stages during The Work being performed as well as on completion of The Work, an Approval Period is provided where work can be reviewed and changes requested by the client. The standard approval period is 7 days and notification of approval or requests for edits must be provided in this time. After the Approval Period expires, then the client accepts that they may incur additional fees for changes, and also that there may be delays in completing work beyond any original specified deadline. If the client approved work before the Approval Period has expired, then the Approval Period shall be deemed over and work shall be published. Peabody Digital will not publish work until the client has approved the work – even if the Approval period has expired. After publication, should errors of any kind be detected, then Peabody Digital reserve the right to charge additional fees for correcting errors.

Changes requested by the client that are not covered in the proposal or quote will incur additional charges beyond those agreed. If the client requests changes but then is the cause of further delay in providing details or content related to said changes then a Restart Fees may apply as per 4.2 Supply of Materials.

Once approved, or deemed approved, work cannot subsequently be rejected, and the work will be deemed to have been completed and the balancing payment under Clause 2.1 Fees Payable will become due.

4.4 Rejecting Work
If the client rejects the Work during the review period, or will not approve subsequent Work performed by Peabody Digital to remedy any points reported by the client as unsatisfactory, and we consider that the client is unreasonable in his/her repeated rejection of the Work, then any further work will be suspended and Peabody Digital can take any legal measures to recover both payments for the completed Work and reasonable expenses incurred in recovering payment.

4.5 Payment
Upon completion of the review period, in accordance with 4.3 & 4.2 above, Peabody Digital will invoice the client for the outstanding payments in accordance with Clause 2.1 Fees Payable hereof, which, in the absence of an agreement to the contrary, is to be paid by the client within 14 days of the date that the invoice was issued. Should payment not be received by the due date then action can be taken in accordance with 4.6 Remedies for overdue payment.

4.6 Remedies for Overdue Payment
If payment has not been received by the due date, Peabody Digital has the right to suspend ongoing work for the client, until such time that full payment of the outstanding balance has been received. If full payment has still not been received 7 days after the due date, Peabody Digital has the right to replace, modify or remove the Work, and suspend any associated services including but not limited to Subscription Services, dedicated IP addresses and email and revoke the client’s licence of the Work until full payment has been received. By revoking the client’s licence of the Work or removing a website from the Internet, Peabody Digital does not remove the client’s obligation to pay any outstanding monies owing. We also reserve the right to charge a late payment fee, which shall be a 10% additional cost of the total invoice or a minimum fee of $20 (whichever is the higher). The late payment fee is charged on the anniversary of each month that has passed after the due date.

4.7 Early Termination of Contract
Peabody Digital will perform the work contracted and will not terminate this contract early unless the reasons specified under 6.1 Right to Terminate of this agreement apply.

If the client terminates the agreement prior to completion of the work specified in the contract, then all work performed, as well as applicable fees, costs and charges incurred in performing said work, less any deposit paid will be calculated as the amount due for total services rendered. Where the amount for total services rendered is less than the total deposit paid then you should refer to clause 2.5 Refunds. Where the total services rendered to the client results in an amount due to Peabody Digital, then a cancellation fee to cover administration and potential loss of income will apply. This cancellation fee amount will be the total amount due on services rendered plus 10%. This will be added prior to any GST becoming applicable. The client accepts that in terminating the agreement they must pay the outstanding amount on services rendered plus the cancellation fee.

5. INTELLECTUAL PROPERTY
5.1 Offers and Proposals
Offers and proposals, including this agreement, made by Peabody Digital to clients and potential clients should be treated as trade secrets and remain the property of Peabody Digital. Such offers and proposals or the information contained within them must not be passed to third parties or publicly disseminated without prior written authorisation from us. This includes, but is not limited to, technical features, functionality, aspects of the design and pricing information.

5.2 Scope of Intellectual Property and Copyright
Peabody Digital retains copyright and intellectual property ownership for all work we create. By default the client shall be granted an exclusive license to use the work for the intended purpose – see licensing below for more information. Information and audio/visual assets provided to Peabody Digital by the client remains the intellectual property of the copyright holder of the creator of each work. By providing said content to Peabody Digital, the client declares that they have obtained permission to use the content and that the client removes the legal responsibility of Peabody Digital from obtaining permissions. Furthermore, the client indemnifies Peabody Digital and accepts full legal responsibility for any claims or legal actions related to the content provided. Thus, under these conditions, the presumption will be that the client has obtained permission to use copyrighted works unless explicitly stated to us in written form. Should Peabody Digital be required to obtain permissions for use of copyright work in the clients product, then the client accepts that there may be an additional cost incurred for both the licensing of the work as well as the time taken to obtain permission to use the work and that this cost may not necessarily be reflected in any quotes provided. As such, the client agrees to pay any additional costs incurred above and beyond the initial quoted amount.

5.3 Licensing
Once we have received full payment of all outstanding monies owing, and the work has been approved, the client, in accordance with clause 4.3 above, will be granted an exclusive license to use the work and its contents for the intended purpose only. We also reserve the right to use the work, should we choose to, for our own promotional purposes, but in doing so will make every reasonable effort to portray the work in a positive way which benefits both Peabody Digital and you the client.

6 RIGHTS AND RESPONSIBILITIES
6.1 Right to Terminate
Peabody Digital reserves the right to refuse or break a contract, without notice, if it is believed that the client, the work, or any material provided to us is illegal, immoral or otherwise unacceptable. In such a case the client would be deemed in breach of this agreement and clause 4.7 Early Termination of Contract would apply.

Peabody Digital reserves the right to terminate this contract should any condition detailed in clause 6.2 Events Beyond Control apply, where said condition renders Peabody Digital unable to fulfil the contracted work.

6.2 Events Beyond Control
Peabody Digital will not be liable for breach of contract where that breach was due to accident, illness, software, hardware or electrical failure, natural events such as fire or other events beyond our control.

6.3 Supplying and Pricing of Services
Peabody Digital reserves the right to use whoever it feels appropriate at the time for third-party software and services. If the costs of providing these are included in the quote, but the cost then subsequently increases, then we reserve the right to alter our prices as necessary, without affecting existing contractual pricing agreements. The client will be notified should any variation in pricing occurs.

7 INTERPRETATION
7.1 Jurisdiction
This agreement shall be governed by the state laws of Tasmania, which shall claim venue and jurisdiction for any legal action or claim arising from the contract between Peabody Digital and the client. Where jurisdiction is not provided by state law then federal laws of Australia shall apply. The said contract is void where prohibited by law.

7.2 Survival of Contract
Where one or more terms of this contract are held to be void or unenforceable for whatever reasons, any other terms of the contract not so held will remain valid and enforceable by law.

7.3 Entire Agreement
This Agreement, and documents referred to herein, contains the entire understanding between the parties as to its subject matter and supersedes and excludes all prior and other discussions, specifications, representations and arrangements relating to services including, but not limited to, those relating to performance or results that ought be expected from us. Any representations (oral or written) given by, or on behalf of, Peabody Digital shall not be relied upon and are hereby excluded.