Terms & Conditions

General Terms and Conditions
  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.

ENTIRE AGREEMENT

  1. 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.
  2. 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.

RIGHTS GRANTED

  1. 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.

PAYMENT TERMS

  1. We require payment of the Initial Instalment stated in the Quote / Proposal before we commence the Work detailed in the Quote / Proposal.
  2. 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 details appear on our invoices.
  3. 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.
  4. 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 judgment debts during the period in question.
  5. You may not set-off any amounts due to us from amount due to you by us.

DISBURSEMENTS AND OTHER CHARGES

  1. 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:
Changes to the scope of the Quote / Proposal $150/hour for graphic design
$160/hour for strategy, copywriting, digital development and digital design
$180/hour for senior strategist, Creative Director and Marketing Director
Props, Stock Images, Stock Footage and Audio All inclusions have been outlined in the Quote / Proposal or scope of works, any additional costs will be charged at cost
Courier Fees $POA
  1. 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.
  2. 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).
  3. 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

  1. 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.
  2. 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.
  3. 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:
    1. make reasonable adjustments to the payment schedule set out in the Quote / Proposal;
    2. invoice you for any work completed up to the date of the delay; and
    3. charge you for the additional costs incurred by us in dealing with the delay in accordance with clauses 13 and 14.
  4. 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

  1. 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.
  2. 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.
  3. You hereby indemnify us with respect to all costs and expenses and interest incurred by us by reason of your breach of these Terms.
  4. 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

  1. 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.
  2. 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.
  3. 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.

PROMOTION

  1. 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.

TERMINATION

  1. Subject to clause 32 either party may terminate this Agreement by giving written notice of such termination to the other party.
  2. 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.
  3. 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.

DISPUTE RESOLUTION

  1. 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:
    1. 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).
    2. 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.
    3. 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.
    4. 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.

JURISDICTION

  1. This Agreement is governed by the laws of Victoria.  The parties submit to the non-exclusive jurisdiction of the courts of Victoria.

CONFIDENTIALITY

  1. 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.
  2. 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.
  3. The obligation in clause 35 will not apply to information which:
    1. 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
    2. the party is obliged by law to disclose, provided that it has first advised the other party of this obligation.

SEVERABILITY

  1. 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.

VARIATION

  1. This Agreement or any part thereof may be varied, modified, amended or added to only in writing executed by both parties.
Hosting and Maintenance Packages Terms and Conditions
  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. All prices quoted are based on a WordPress or Craft CMS and are subject to periodic review.

HOSTING AND MAINTENANCE PACKAGES

  1. Hosting and Maintenance Packages are charged on a monthly basis from the Commencement Date.
  2. 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.
  3. The Services do not include:
    1. the purchase of a domain name. We recommend that you purchase the domain names you require from a reputable provider and supply the details of the domain name(s) to us upon setup; and
    2. transferring website files from an existing hosting provider. We can provide you with a quote for undertaking this work based on our hourly rate of $160 + GST
    3. creation or management of email accounts.

UNAUTHORISED THIRD PARTY ACCESS AND SECURITY BREACHES

  1. If we become aware of any security breach or malicious activity on your site, we will promptly notify you of the issue.
  2. If the security of your site is compromised or your site breaks, we will work with you to promptly resolve the issue by either:
    1. restoring the site from the last backup (which will result in the loss of any changes, updates or adjustments to the site between the last backup and the restoration date), which will incur a flat fee of $300 + GST; or
    2. manually cleaning the site by attempting to remove the issue manually, with the goal of retaining existing data. Manual cleaning is charged at a rate of $180 + GST per hour. We do not guarantee that manual cleaning will be able to recover all data and/or remove all malicious activity.

BACKUP

  1. We will not maintain backup files for sites following termination of this Agreement or if our Services are suspended due to non-payment.

MODIFICATION, SUSPENSION OR DISCONTINUANCE OF THE SERVICES

  1. We reserve the right to modify, suspend, or discontinue the Services, in whole or in part.

SUPPORT BLOCK (PRE-PAID)

  1. You may use your support block to instruct us to undertake the following types of work on your website:
    1. addition of links and the implementation of simple navigational changes
    2. simple page design changes
    3. addition of new pages consistent with the existing site design
    4. text changes (such as news, press releases, current events, scheduled events, re-wording, etc)
    5. creation of header graphics consistent with the existing site design
    6. addition of graphics provided by the User to an existing web page.
  2. Support blocks cannot be used for major updates of your website.  Major updates include:
    1. the creation of new pages or site sections that differ from the existing site design
    2. major structural or graphical changes affecting the overall appearance of the website
    3. major customisation to key functions such as eCommerce, Learning Management Systems and Member Management Systems
    4. website training
    5. heavy image work and editing, including logo design or redesign
    6. video editing, animation creation or editing.
  3. If support blocks  are not utilised within the quarter in which payment is received, your credit balance will be rolled over and available for use in the next quarter.
  4. If you do not use all of your support block time during the term of our Agreement, we may (in our absolute discretion) refund you an amount equivalent to the remaining unused time.
  5. If the requested changes to your site will exceed the amount of support block you have available, you will need to purchase an additional support block to cover the additional hours required to undertake the changes.
  6. We reserve the right to refuse to undertake work on websites or with content that is, in our opinion, offensive, inappropriate or illegal.

LIMITATION OF LIABILITY

  1. 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.
  2. 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.
  3. 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.
  4. Except as expressly provided in clause 20 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, licenses 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.

INDEMNIFICATION

  1. 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.
SSL Certificates Terms & Conditions
  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. All prices quoted are subject to periodic review.

SSL CERTIFICATES

  1. 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

  1. 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.
  2. 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.
  3. If you require us to subsequently reinstate the website, hosting package and/or SSL certificates, we will provide you with a quote for undertaking this work based on our hourly rate.

MODIFICATION, SUSPENSION OR DISCONTINUANCE OF THE SERVICES

  1. We reserve the right to modify, suspend, or discontinue the Service, in whole or in part.

LIMITATION OF LIABILITY

  1. You agree to use all Services and any information obtained through or from us, at your own risk.  You acknowledge and agree that we exercise no control over, and accept no responsibility for, the content of the information passing through host computers, network hubs and points of presence or the Internet. The Services provided under this agreement are provided on an “as is”, “as available” basis. 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, or non-infringement, for the Services or any equipment that we or our suppliers provide. We do not make any warranties that the Services will not be interrupted or error free; nor do we make any warranties as to the results that may be obtained from the use of the Services or as to the accuracy, reliability or content of any information, services or merchandise contained in or provided through the Services. We are not liable, and expressly disclaim any liability, for the content of any data transferred either to or from you or stored by you or any of your customers via the Services provided by us. 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.
  2. In no event will our liability in connection with the Services, any software provided hereunder or any order, 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.
  3. 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.
  4. Except as expressly provided in clause 14 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, licenses 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.

INDEMNIFICATION

  1. 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. The terms of this section shall survive any termination of this Agreement.