1. In these Terms “we”, “us” or “our” means Thirst Creative Pty Ltd (ABN 12 095 004 892) of Level 1, 196 Faraday Street, Carlton VIC 3053 Australia (and our officers, directors, employees and agents) and “you” means the Client identified in the Quote / Proposal.
2. Unless otherwise indicated, capitalised terms have the meaning ascribed to them in the Quote / Proposal.
3. You are deemed to have agreed and accepted these Terms and Conditions upon acceptance of the Quote / Proposal. The Quote / Proposal is valid for 30 days from issue and is subject to amendment, change or substitution if it is not accepted in that time frame.
4. You have requested us to undertake the Work detailed in the Quote / Proposal and we have agreed to do so on the following Terms and Conditions.
5. Fixed-price projects will be quoted using the latest Thirst Creative hourly rate card and calculated based on our scope estimates. Where scope is unknown or subject to material fluctuations, Thirst may recommend engaging on a time and materials basis.
6. These Terms and Conditions, together with the Quote / Proposal, constitute a binding agreement between Thirst Creative and the Client (the Agreement). If there is any inconsistency between these Terms and Conditions and the Quote / Proposal, then these Terms and Conditions will prevail to the extent of the inconsistency.
7. This Agreement is the whole agreement between the parties concerning the subject matter. It replaces any prior agreement, arrangement or understanding concerning the subject matter.
8. In consideration for the Fee, we grant you the sole and exclusive licence for the full term of copyright including any renewals or extensions thereof subsisting in the Work in the Territory to reproduce, publish and communicate the Work or any part of it to the public in printed or electronic form including but not limited to digital, analogue, optical or magnetic information storage and retrieval systems, devices or platforms whether or not in existence as at the date of this Agreement.
9. We own all intellectual property rights and may refuse the transfer of ownership. If previously negotiated, the transfer of ownership of intellectual property to a client may occur but only upon receipt of full payment.
10. We require payment of the Initial Instalment stated in the Quote / Proposal before we commence the Work detailed in the Quote / Proposal.
11. Subsequent invoices are due for payment within 14 days of the invoice date. Please make payment by way of bank transfer or credit card. Bank and credit card payment details appear on our invoices.
12. If an invoice remains unpaid for more than one month, or if you fail within two weeks to meet a request for payment, we may decline to undertake any further work for you. In that case, we shall still charge you for the full amount of work done up to that date.
13. We may charge you interest on amounts which are overdue for more than one month. Interest is calculated at an annual rate equal to the rate being applied to judgement debts during the period in question.
14. You may not set-off any amounts due to us from the amount due to you by us.
DISBURSEMENTS AND OTHER CHARGES
15. Unless otherwise stated on the Quote / Proposal, the following charges are not included in the Fee, and will be separately itemised on our invoices and charged to you at cost or as otherwise costed below:
16. We will give you prior written notice of any additional costs and shall not incur such additional costs without your prior approval. Such costs shall be added to your next invoice unless otherwise agreed by the parties.
17. Unless otherwise specified, all amounts referred to in the Quote / Proposal and these Terms and Conditions are in Australian dollars and are payable in Australian dollars and are not subject to any deductions of any kind (including in relation to bank fees, withholding tax etc).
18. Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under this Agreement are exclusive of GST.
CHANGES TO THE SCOPE OF WORK
19. If you wish to vary the nature, scope or quantity of the Work detailed in the Quote / Proposal, you must provide us with written instructions detailing the variations you require to enable us to provide a revised Quote / Proposal.
20. The Timeline set out in the Quote / Proposal is intended to be indicative only and is dependent on the timely receipt of materials, written approvals and other instructions from you.
21. If the Timeline outlined in the Quote / Proposal is delayed by more than 30 days as a result of any delay or failure by you resulting in additional costs to us, including, among other things, in relation to additional management time, briefing new project managers, general resourcing costs and/or the implementation of an annual rate review, we retain the right to:
(a) make reasonable adjustments to the payment schedule set out in the Quote / Proposal;
(b) invoice you for any work completed up to the date of the delay; and
(c) charge you for the additional costs incurred by us in dealing with the delay in accordance with clauses 13 and 14.
22. If for any reason beyond our control, including without limitation, strike, trade dispute, fire, flood, accident, tempest, death, war declared or undeclared, blockade, governmental or quasi-governmental restraint, delays in transport or an act of God, we cannot deliver the Works to you in the timeframe you require or at all, we are not required to deliver the Works to the extent and for the period that we are prevented from doing so and we are not liable to you in respect of any inability on our part to perform our obligations.
WARRANTY AND INDEMNITY
23. You warrant that any materials provided by you for inclusion in the Work are accurate and are cleared for use in the Territory and will not defame, infringe the privacy or other right of any third party and that nothing contained in those materials will infringe the copyright, trademark or similar property right of any third party.
24. You undertake not to employ or seek to employ any member of our staff until at least 24 months after the completion by us of any Work governed by these Terms. If you breach this undertaking, you agree to pay us the equivalent of 33% of the staff member’s first year salary with your company, which the parties agree represents the best estimate of the loss that will be suffered by us in the event of your breach of this clause. The parties acknowledge and agree that payment of this percentage on breach is a genuine pre-estimate of loss.
25. You hereby indemnify us with respect to all costs and expenses and interest incurred by us by reason of your breach of these Terms.
26. At all times, we will exercise reasonable endeavours in respect of the safekeeping of any materials provided by you for inclusion in the Work. Except as expressly specified otherwise in this Agreement, we will not be at any time liable for any loss, destruction and/or damage caused to such materials under contract, negligence or bailment law or otherwise.
WORK UNDERTAKEN BY THIRD PARTIES
27. We will use reasonable efforts to maintain your website in accordance with the Scope of Work detailed in the Quote / Proposal. However, we are not liable for any failure or other issue with any website created, managed or edited by a third party (including, but not limited to, broken site pages; the website being taken offline; plugin faults; server, hosting and/or DNS failures) or for any fault or other issue with a website built by us but subsequently modified by you or your employees or a third party (including, but not limited to, third party website developers, IT companies and hosts) without our express approval or direction.
28. The client is solely responsible for the security and performance of third-party plugins and data security.
29. If you notify us of a website fault or we discover such a fault, we will review the fault and we will provide you with a quote for undertaking the necessary recovery or maintenance work on the website for your prior approval before we undertake such work.
30. We will charge you for the time we spend troubleshooting your website to identify faults if the fault is the result of work done or services provided by a third party.
31. We retain the right to reproduce or communicate or otherwise use the Work, including online, for promotional purposes at our discretion, acting reasonably. If you have concerns about this, please discuss them with us prior to engagement.
32. Subject to clause 34 either party may terminate this Agreement by giving written notice (30 days unless otherwise stated) of such termination to the other party.
33. In the event that you terminate the Agreement, you will be liable for payment of the Fees and disbursements properly incurred by us up to the date of termination. In that event, we will invoice you, as soon as reasonably practicable, for any costs and disbursements due to us up to the date of termination and you must pay the invoice and other unpaid invoices in accordance with the terms of this Agreement.
34. In the event that we terminate the Agreement, we are not liable to you for any loss or damage whatsoever arising from such termination save that we will refund any payment received for work that has not been undertaken as at the date of termination.
35. If there is a dispute between the parties in connection with this Agreement (Dispute), the parties must attempt to resolve the Dispute by the following process:
(a) The party claiming that a Dispute has arisen must notify the other party of the Dispute giving details of the Dispute and any information, document(s) or other material reasonably necessary for the other party to understand the basis of the Dispute (Dispute Notice).
(b) Within 14 days of receipt of the Dispute Notice, the Managing Directors of both parties must hold good faith discussions in an attempt to resolve the Dispute.
(c) If, within a further 7 days, the parties are unable to resolve the Dispute, either of them may refer the Dispute to nonbinding mediation. Any mediation will be held in a location to be agreed by the parties and conducted in accordance with the standard mediation agreement of the Institute of Arbitrators and Mediators Australia (IAMA) or its successor. If the parties cannot reach agreement as to the identity of the mediator within 10 business days, the mediator will be appointed at the request of either party by the IAMA. The mediator’s costs will be borne equally by the parties. The parties agree that nothing in this clause 32 will oblige either party to mediate a dispute for a period exceeding 2 business days from the date on which the mediation commences.
(d) Except for urgent interlocutory relief or a dispute relating to confidential information, a party must not commence or maintain an action or a proceeding in a court, tribunal or otherwise regarding a Dispute unless it has complied with this clause 32.
36. This Agreement is governed by the laws of Victoria. The parties submit to the non-exclusive jurisdiction of the courts of Victoria.
37. Each party acknowledges the confidentiality of the other party’s confidential information and, in particular, you specifically acknowledge that the Quote / Proposal is confidential and must not be shared with third parties without our prior written consent.
38. Neither party will gain a right or interest in the other party’s confidential information, other than for the purposes contemplated by this Agreement. Each party must keep all of the other party’s confidential information confidential, and only use it for the purposes of fulfilling its obligations under these Terms.
39. The obligation in clause 35 will not apply to information which:
(a) Was in the public domain when it was provided to a party, or later enters the public domain, through no fault of the party; or
(b) the party is obliged by law to disclose, provided that it has first advised the other party of this obligation.
(c) was already known to the receiving party at the time of disclosure, as established by written records; or
(d) was independently developed by the receiving party, as established by written records; or
(e) was obtained by the receiving party from a third party who was not under an obligation of confidentiality.
40. In the event of any provision or part thereof of this Agreement being held invalid, unenforceable or illegal for any reason, then such provision or part thereof, as the case may, shall be deemed to be deleted from this Agreement and this Agreement shall otherwise remain in full force.
41. This Agreement or any part thereof may be varied, modified, amended or added to only in writing executed by both parties.
1. All Work detailed in the Quote / Proposal is subject to Thirst Creative’s General Terms and Conditions in addition to these specific terms and conditions. In the event of any inconsistency between our General Terms and Conditions and these terms and conditions, the latter shall prevail.
2. “Services” means the scope of work detailed in the Quote / Proposal.
3. "Commencement Date" means the date on which the Hosting and Maintenance Package begins.
4. All prices quoted are based on a Wordpress, Webflow or Craft CMS and are subject to periodic review.
HOSTING AND MAINTENANCE PACKAGES
5. Hosting and Maintenance Packages are charged on a monthly basis from the Commencement Date.
6. To request a maintenance or hosting package, clients must submit a written request through the designated online portal (Trello) or by email to their Thirst Creative Account Manager / Digital Producer. Maintenance work will be scheduled on a first-come, first-served basis, subject to availability.
7. Monthly website maintenance is undertaken during the first week of each month. New website maintenance packages will be scheduled to begin on the next maintenance cycle.
8. If clients experience any issues or problems with the website, they must report the issue to the Thirst Creative team as soon as possible through the designated online portal (Trello) or by email to their Thirst Creative Account Manager / Digital Producer. Thirst Creative will work with clients to resolve the issue in a timely manner.
9. If clients wish to make updates or changes to the website outside of the scope of the maintenance or hosting packages, they must submit a written request through the designated online portal (Trello) or by email to their Thirst Creative Account Manager / Digital Producer. Thirst Creative will provide a quote for the additional work, which must be approved by the client before proceeding.
10. The Services do not include:
UNAUTHORISED THIRD PARTY ACCESS AND SECURITY BREACHES
11. The client is solely responsible for purchasing and maintaining Cyber Security Insurance.
12. In case of a security breach, Thirst Creative will immediately notify the client and offer assistance to resolve the issue. The client must change their passwords immediately and inform Thirst Creative of any changes in contact information to ensure prompt notification in case of a security breach.
13. If the security of your website is compromised or it malfunctions, Thirst Creative will work with you to resolve the issue promptly:
14. The client must inform their customers/users of any security breaches that may have affected their personal information.
15. The client acknowledges that Thirst Creative cannot guarantee the security of their website and accepts the risk of unauthorised third-party access and security breaches.
16. We will not maintain backup files for sites following the termination of this Agreement or if our Services are suspended due to non-payment.
17. Thirst Creative will maintain backup files for the duration of the Hosting and Maintenance Package. However, they will not maintain backup files for sites following termination of this Agreement or if their Services are suspended due to non-payment.
MODIFICATION, SUSPENSION OR DISCONTINUANCE OF THE SERVICES
18. We reserve the right to modify, suspend, or discontinue the Services, in whole or in part.
PAYMENT AND CANCELLATION
19. Hosting and Maintenance Package fees are payable monthly in advance.
20. Thirst Creative reserves the right to increase the hourly rate inline with our annual rate reviews, but will provide a 30 days notice of intent to increase.
21. Thirst Creative reserves the right to suspend or terminate the Services if payment is not received by the due date.
22. If the client wishes to cancel their Hosting and Maintenance Package, they must provide 30 days' written notice to Thirst Creative through the designated online portal (Trello) or by email to their Thirst Creative Account Manager / Digital Producer.
23. Any remaining prepaid hosting balance will be forfeited.
LIMITATION OF LIABILITY
24. You agree to use all Services and any information obtained through or from us, at your own risk. We do not make any warranties of any kind, either expressed or implied, including but not limited to warranties of merchantability or fitness for a particular purpose for the Services that we or our suppliers provide. We do not make any warranties that access to and/or the function of the site will not be interrupted or error free or that your website security will not be compromised by unauthorised third party access or malware, including hacking, targeting and phishing. Interruptions may occur due to maintenance, updates or system network failures, among other things. We are not liable, and expressly disclaim any liability, to you or any other party for any loss or damage of any nature caused either directly or indirectly by any such interruption, error in functioning, malicious activity by a third party or malware. No oral advice or written information given by us, will create a warranty; nor may you rely on any such information or advice. The terms of this section shall survive any termination of this Agreement.
25. In no event will our liability in connection with the Services, whether caused by failure to deliver, non-performance, defects, breach of warranty or otherwise, exceed the Fee paid to us by you during the 12-month period immediately preceding the event giving rise to such liability.
26. We cannot guarantee that the Services will be continuous or provided at any particular time or integrity of data, information or content stored or transmitted via the internet. We will not be liable for any unauthorised access to, or any corruption, erasure, theft, destruction, alteration or inadvertent disclosure of, data, information or content transmitted, received or stored on our system or the system of any of our suppliers.
27. Except as expressly provided in clause 28 below, neither party shall be liable in any way to the other party or any other person for any lost profits or revenues, loss of use, loss of data or costs of procurement of substitute goods, licences or services or similar economic loss, or for any punitive, indirect, special, incidental, consequential or similar damages of any nature, whether foreseeable or not, under any warranty or other right hereunder, arising out of or in connection with the performance or non-performance of the Services, or for any claim against the other party by a third party, regardless of whether it has been advised of the possibility of such claim or damages.
28. You agree to indemnify, defend and hold us harmless from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against us arising out of or relating to: (i) your use of the Services; (ii) any violation by you of our Acceptable Use Policy (“AUP”) or the AUP of any of our suppliers; (iii) any breach of any representation, warranty or covenant contained in this Agreement; or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this Agreement.
1. "Digital Support Block / Support Block" means a pre-paid block of hours that can be used for certain types of work on a website, as outlined in these terms and conditions.
DIGITAL SUPPORT BLOCK (PRE-PAID)
2. You may use your support block to instruct us to undertake the following types of work on your website:
3. Digital support blocks cannot be used for major updates to your website. Major updates include:
4. The cost of the support block, including any applicable taxes or fees, will be set out in the invoice provided by us. Payment of the invoice is due within the timeframe set out in the invoice.
5. To request support block services, you must submit a written request through the designated online portal (Trello) or by email to your Thirst Creative Account Manager / Digital Producer.
6. Thirst Creative will track support block usage according to the number of minutes spent on each request. If the requested changes to your site exceed the amount of support block you have available, you will need to purchase an additional support block to cover the additional time required to undertake the changes.
7. Support block credits are non-transferable and cannot be used as credits for any other projects or services offered by Thirst Creative or any other company. Any unused support block credits must be used within the designated website for which the support block was purchased and cannot be transferred or applied to other projects.
8. Thirst Creative guarantees that all support block services will be completed to the best of our ability and in accordance with industry best practices. We are not responsible for any damages or losses that may result from the use of the support block services.
9. These terms and conditions, together with any additional terms or conditions provided by the company, constitute the entire agreement between the parties with respect to the support block services.
10. We reserve the right to refuse to undertake work on websites or with content that is, in our opinion, offensive, inappropriate or illegal.
TERMINATION OR EXPIRATION OF DIGITAL SUPPORT BLOCK
11. The support block may be cancelled or terminated at any time by either party, with a written notice of at least 30 days. Any unused support block time at the time of cancellation or termination will be forfeited.
12. Support blocks expire after 24 months from the date of purchase. The company will give the user 30 days' notice prior to closing an expired support block. Any remaining credit balance will be forfeited at the time of expiration.
13. You agree to indemnify, defend and hold us harmless from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against us arising out of or relating to: (i) your use of the Services; (ii) any violation by you of our Acceptable Use Policy (“AUP”) or the AUP of any of our suppliers; (iii) any breach of any representation, warranty or covenant contained in this Agreement; or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this Agreement.
4. SSL certificates are charged on an annual basis from the Commencement Date. Each Certificate requires a minimum commitment of one year and will automatically renew on the anniversary of the Commencement Date.
TERMINATION OR SUSPENSION OF SERVICES
5. If our Services are suspended due to non-payment, hosting and SSL certificates will automatically be shut down and the site will be taken offline. We will issue two (2) payment reminders to you prior to undertaking a site shutdown.6. If our Services are suspended due to non-payment and the site is shutdown, we will maintain a copy of the website files offline for a maximum of 12 months. We will not be responsible for any loss or damage to your website files during this time.