1. Acceptance and Entire Agreement
1.1 Agreement Formation
These Standard Terms & Conditions (“Terms”) govern the relationship between KODA Design Australia Pty Ltd (“KODA”) and the Customer named on the Proposal, Quotation, or Invoice (collectively, a “Proposal”) to which these Terms are attached or incorporated by reference. By either (a) signing and returning the Proposal, (b) providing written or verbal acceptance of the Proposal, or (c) accepting any deliverables or services described in the Proposal, the Customer acknowledges and agrees to these Terms (the “Agreement”).
1.2 Complete Terms
The Agreement consists of these Terms, the Proposal, and any written modifications signed by an authorised officer of KODA. Any other terms or conditions proposed by the Customer are hereby rejected and shall not bind KODA unless expressly accepted in writing by a duly authorised officer of KODA.
1.3 Governing Law
This Agreement shall be governed exclusively by, and construed in accordance with, the laws of the State of New South Wales, Australia, without regard to its conflict of laws principles.
2. Scope of Service
2.1 Work
KODA shall perform or supply only the digital services and/or consulting specified in the Proposal (the “Work”). Any additional services or changes to the scope must be agreed upon in writing and will be subject to additional fees.
2.2 Additional Services
If the Customer requests and KODA agrees to perform any services not expressly identified in the Proposal, the Customer shall pay for such additional or out-of-scope services at the rates and terms set forth in the Proposal or, if none are stated, then in accordance with KODA’s standard rates in effect at that time.
3. Fees and Payment Terms
3.1 Fees
Customer shall pay KODA the fees set forth in the Proposal. All fees are quoted exclusive of any applicable taxes or duties, which shall be paid by the Customer unless otherwise specified in the Proposal.
3.2 Payment Schedule
Deposit: Unless otherwise stated in the Proposal, fifty percent (50%) of the total fees (“Deposit”) is due upon commencement or acceptance of the Proposal. Work will not begin until KODA has received the Deposit.
Final Payment: The remaining fifty percent (50%) shall be due upon the earlier of completion or delivery of the final deliverable(s), unless otherwise specified in the Proposal.
3.3 Late Payments
Invoices not paid within fourteen (14) days of the invoice date (or any alternative timeframe set forth in the Proposal) shall be considered overdue. KODA may suspend or terminate Work if payment is overdue, and any unpaid balance shall accrue interest at a rate of one-half percent (1%) per month or the maximum rate permitted by law, whichever is lower.
3.4 Collection Costs
In the event KODA undertakes legal or other collection efforts to recover overdue amounts, the Customer shall be responsible for paying all reasonable costs of collection, including legal fees and court costs.
3.5 Credit Card Authorisation
If the Customer has provided KODA with credit card details as a form of payment or backup payment method, KODA is authorised to charge any overdue invoice amounts, plus accrued interest, to that card without further notice.
3.6 Taxes
Except as otherwise stated in the Proposal, the Customer shall be responsible for paying any and all applicable GST, sales taxes, use taxes, or similar charges imposed by any governmental authority.
4. Travel and Other Expenses
4.1 Reimbursement
If the Work requires KODA personnel to travel or incur out-of-pocket expenses, the Customer shall reimburse KODA for such reasonable and pre-approved expenses.
4.2 Expense Approval
KODA shall seek the Customer’s prior approval for any substantial travel or extraordinary expenses. Such expenses will be invoiced separately or at agreed intervals.
4.3 Documentation
KODA shall provide documentation (e.g., receipts) for reimbursable expenses upon the Customer’s request.
5. Standard of Care
5.1 Level of Skill and Care
KODA agrees to perform the Work using the degree of skill and care ordinarily exercised by qualified professionals providing similar digital services and consulting under similar conditions at the time the services are performed.
5.2 No Additional Warranties
Except for the warranty set forth in Section 5.1, KODA disclaims any and all other warranties, whether express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, and non-infringement.
5.3 Remedy
The Customer’s sole remedy for breach of the foregoing warranty is to require KODA to, within a reasonable time, correct or replace (at KODA’s election) any affected deliverable(s), provided the Customer notifies KODA in writing of any alleged breach within six (6) months from the date the deliverable(s) were provided.
5.4 Third-Party Components
KODA makes no warranties regarding third-party software, hardware, or platforms used in connection with the Work and shall not be liable for any issues arising from such third-party materials.
5.5 Electronic Commerce Risks
The Customer assumes all risks associated with electronic commerce transactions, including security breaches and fraudulent activity, to the extent arising from factors outside KODA’s reasonable control.
6. Limitations of Liability
6.1 Exclusion of Certain Damages
In no event shall KODA or its owners, officers, employees, or agents be liable for any special, indirect, incidental, consequential, punitive, or exemplary damages, including but not limited to lost profits, lost data, or other economic loss, arising out of or related to the Work or this Agreement, regardless of the legal theory under which such liability is asserted.
6.2 Notice of Claims
KODA shall not be liable unless the Customer provides KODA with written notice of the claim within six (6) months of the date the service or deliverable was provided.
6.3 Liability Cap
KODA’s total liability for any claim(s) arising under this Agreement shall not exceed the amount actually paid by the Customer to KODA for the specific Work giving rise to the claim.
7. Access to Information
7.1 Customer Obligations
The Customer shall provide KODA with timely access to any relevant systems, documentation, personnel, or information reasonably necessary for KODA to perform the digital services and consulting.
7.2 Accuracy of Information
KODA shall not be liable for the accuracy or completeness of information provided by the Customer or third parties not under KODA’s control, nor is KODA required to verify such information independently.
8. Force Majeure
8.1 Excusable Delay. KODA shall not be liable for delays or failure to perform due to circumstances beyond its reasonable control, including but not limited to acts of nature, natural disasters, war, civil unrest, labor strikes, pandemics, or governmental actions.
8.2 Extension of Time. If KODA’s performance is delayed due to a force majeure event, it shall be entitled to a reasonable extension of time to complete its obligations, and the Customer shall pay any additional costs incurred by KODA as a result of such delay.
9. Ownership & Delivery of Digital Deliverables
9.1 Ownership Upon Payment
Unless otherwise stated in the Proposal, upon full payment of all fees and expenses due, the Customer shall own the final digital deliverables (e.g., designs, code, reports, documentation) created specifically for the Customer under this Agreement.
9.2 Pre-existing Materials
KODA retains ownership of any pre-existing or generic materials, methodologies, frameworks, software code, or intellectual property used in creating the deliverables and any knowledge, skills, or expertise acquired during the project.
9.3 Delivery
Delivery of digital deliverables will be deemed complete once KODA provides the deliverables in a standard, accessible format (e.g., via email, shared drive, or secure online transfer). The Customer shall promptly review and provide feedback or approval in accordance with the acceptance and revisions process (Section 11).
10. Intellectual Property Rights
10.1 Third-Party Materials
If the Work incorporates third-party materials (e.g., stock images, fonts, plugins), those materials may be subject to separate licence agreements. The Customer agrees to abide by the terms of such licences.
KODA shall not be responsible for any fees, damages, or claims arising from the Customer’s misuse or unlicensed use of any third-party materials.
10.2 Use of Customer’s Trademarks
The Customer grants KODA a limited, non-exclusive licence to use the Customer’s trademarks, logos, or other brand elements as necessary to perform the Work.
11. Acceptance and Revisions
11.1 Approval Process
The Proposal may specify key milestones or deliverables requiring Customer approval. The Customer shall review deliverables in a timely manner and either approve or provide revision requests by the due date indicated by KODA.
The deliverable shall be deemed accepted if no feedback is provided within a reasonable timeframe (as stated in the Proposal or otherwise agreed upon).
11.2 Revision Rounds
The Proposal may specify how many rounds of revisions are included. Additional revisions beyond those specified shall be billed at KODA’s standard hourly rate (or as stated in the Proposal).
12. Confidentiality and Non-Disclosure
12.1 Definition of Confidential Information
“Confidential Information” includes any information disclosed by one party to the other that is marked as confidential or which a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure.
12.2 Obligations
Both parties shall use Confidential Information solely for the purposes of fulfilling their obligations under this Agreement and shall not disclose it to any third party without the other party’s prior written consent, except as required by law.
12.3 Exclusions
Confidential Information does not include information that (i) was already known by the receiving party without an obligation of confidentiality; (ii) becomes publicly available through no fault of the receiving party; (iii) is rightfully received from a third party without restriction; or (iv) is independently developed without the use of the disclosing party’s Confidential Information.
13. Data Protection and Privacy
13.1 Compliance
In collecting, storing, or processing any personal information on behalf of the Customer, KODA will comply with applicable privacy laws, including the Privacy Act 1988 (Cth) and the Australian Privacy Principles, to the extent applicable.
13.2 Security Measures
KODA shall take reasonable steps to protect personal information in its possession or control from misuse, interference, loss, or unauthorised access, modification, or disclosure.
13.3 Customer’s Obligations
The Customer is responsible for ensuring that any personal information provided to KODA has been collected lawfully and that the Customer has all necessary consents or authorisations required by law.
14. Indemnification
14.1 Customer Indemnity
The Customer agrees to indemnify, defend, and hold harmless KODA and its owners, officers, employees, and agents from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable legal fees) arising out of or relating to (i) the Customer’s breach of this Agreement, (ii) the Customer’s infringement or alleged infringement of any third-party rights (including intellectual property rights) in materials provided by the Customer to KODA, or (iii) the Customer’s misuse of the deliverables.
14.2 KODA Indemnity
KODA shall indemnify the Customer from any third-party claims arising solely from KODA’s unauthorised use or infringement of third-party intellectual property, provided that such third-party materials were not supplied or requested by the Customer, and the Customer promptly notifies KODA of any such claim and allows KODA to control the defence and settlement thereof.
15. Termination
15.1 Termination for Convenience
Either party may terminate this Agreement for convenience upon giving the other party thirty (30) days’ prior written notice, unless a different notice period is specified in the Proposal.
15.2 Termination for Cause
Either party may terminate this Agreement immediately upon written notice if the other party materially breaches any provision of this Agreement and fails to remedy the breach within fourteen (14) days after receiving written notice of the breach.
15.3 Effect of Termination
If the Agreement is terminated for any reason, the Customer shall pay KODA for all Work performed (including any authorised expenses) up to the date of termination. Upon full payment, any deliverables completed and accepted shall be delivered to the Customer.
16. Portfolio Rights & Promotion
16.1 Showcasing Work
Unless otherwise agreed in writing, KODA may display or feature the final digital deliverables (e.g., website designs, branding, reports, etc.) in its portfolio, website, social media, and marketing materials once such deliverables are publicly launched or publicly accessible.
16.2 Trademarks and Credits
KODA may include a small byline, watermark, or other branding on digital deliverables it creates, with the Customer’s prior approval, indicating KODA’s role in the project.
7. Dispute Resolution
17.1 Negotiation and Mediation
In the event of a dispute arising out of or relating to this Agreement, the parties shall first attempt good-faith negotiations to resolve the dispute. If the dispute is not resolved through negotiation, the parties agree to consider mediation prior to pursuing any other legal remedies.
17.2 Jurisdiction
Any litigation arising out of or related to this Agreement shall be filed and prosecuted in the courts located in the State of New South Wales, Australia, and the parties consent to the exclusive jurisdiction of such courts.
18. Survival
18.1 Surviving Clauses
Any provision of this Agreement that by its nature is intended to survive termination or expiration (including but not limited to provisions relating to payment, confidentiality, indemnification, intellectual property, and limitations of liability) shall continue in full force and effect after the termination or expiration of this Agreement.
19. General Provisions
19.1 Severability
If any provision of this Agreement is deemed invalid or unenforceable, the remaining provisions shall remain in full force and effect.
19.2 No Waiver
The failure of either party to enforce any provision of this Agreement shall not operate as a waiver of that provision or any other provision.
19.3 Assignment
The Customer shall not assign or transfer this Agreement or any rights or obligations hereunder without KODA’s prior written consent. Any attempt to assign without such consent shall be null and void.
19.4 Amendments in Writing
Any changes or amendments to this Agreement must be in writing and signed by both parties.
19.5 Entire Agreement
This Agreement, including all documents referenced herein, constitutes the entire agreement between the parties concerning its subject matter, superseding all prior discussions and understandings.
20. Contact for Questions
If you have any questions or concerns about these Terms or the Proposal, please contact KODA at [Contact Information]. We appreciate your business and look forward to working with you.