Terms and Conditions

This Agreement is made between:

Michael Walters trading as REDTWENTY (ABN 24 180 420 974) (RedTwenty); the person, partnership or company whose name and other details are set out in the supplied Job Proposal (Customer); if the Purchaser is a corporation, the director(s) of the Purchaser whose name(s) and other details are set out in the supplied Job Proposal (the Guarantor).

 

Terms of Engagement

1.1           The parties acknowledge that RedTwenty will provide and the Customer will purchase certain educational technology and instructional design services on these Terms and Conditions (the Agreement).

 

Services

2.1        Subject to the Customer complying with this Agreement, RedTwenty will provide the Services outlined in the supplied Job Proposal (referred to as a Project):

 

Job Proposals

3.1        The Customer agrees that the Job proposal includes, a quotation of fees for the Services to be performed, and a link to this Agreement (together referred to as the Job Proposal).

3.2        RedTwenty will provide the Customer a Job Proposal for review and if approved, signature and return to RedTwenty.

3.3        The Customer must sign and return the Job Proposal (which indicates the Customer’s acceptance of the scope of Services, the quotation and this Agreement) in addition to any installment of the fees (if so indicated) before RedTwenty will commence any work.

 

Acceptance of Job Proposal

4.1        RedTwenty may decline to accept the return of any Job Proposal without providing a reason and without giving notice.

4.2        Quotations contained in Job Proposal will remain valid for 30 days from date of issue.

 

Supply of Services

5.1        RedTwenty will not commence work until receipt of:

i.        written approval of the Quote and these Terms and Conditions from the Customer; and

ii.        payment of the first installment of the fees as invoiced if so indicated in the Job Proposal.

5.2        The Customer must provide to RedTwenty upon commencement of the Services all images, graphics and other content required for RedTwenty to provide the Services (Content). All Content must be provided in an editable format and any images or graphics as jpg or working files as appropriate for the job (and as approved by RedTwenty).

5.3        If requested by the Customer, RedTwenty will source images for the Customer. Additional costs may apply.

5.4        RedTwenty may (in its absolute discretion) accept a request for amendment or modification to the design concept at any time after the Customer’s review of the design concept at no extra cost. Any requests for significant amendment or modification to the design concept after creation and deliver of the content will be subject to additional costs determined and advised by RedTwenty.

5.5        At the completion of the Services RedTwenty will provide the Customer with an electronic copy of the completed Project. Further or additional copies of any of the Projects requested by the Customer will be subject to additional costs determined and advised by RedTwenty.

5.6        At the completion of the project (including back office system set up) RedTwenty will provide the Customer with online training, online wiki, a support forum and (pursuant to and in accordance with the Quote) after sales support if applicable. The supply of any additional after sales support or other services requested by the Customer will be subject to additional costs determined and advised by RedTwenty.

5.7        RedTwenty will exercise its independent discretion as to the most appropriate and effective manner of providing the Services.

5.8        While every effort will be made by RedTwenty to meet agreed timelines, RedTwenty will not be responsible for any delays caused by unforeseen events or circumstances beyond RedTwenty’s control.

5.9        The Customer must notify RedTwenty of any incomplete or faulty Services within 14 days from the completion of the Service. In the absence of such notice, the Customer waives all of its rights under this Agreement in respect of those Services

 

Payment

6.1        The Customer must pay the relevant portion of the fees to RedTwenty within 14 days of the date of the corresponding invoice issued by RedTwenty or as otherwise advised by RedTwenty in writing.

6.2        After the issue of an invoice, RedTwenty is not obliged to issue any additional invoices or statements in respect of outstanding payments for any Services.

6.3        The Customer must pay to RedTwenty interest at the rate set out in the Invoice in relation to any amount that is not paid strictly in accordance with this Agreement and the Invoice.

6.4        RedTwenty will invoice the Customer in relation to the Services in the following manner:

In respect to a fixed price quote:

i.        50% of the total fee: upon return of the Job Proposal by the Customer;

ii.        the last 50% of the total fee: the earlier of:

  1. the date that is 14 days from the finalisation of the design and construction of the website (save for content) where the Customer has failed to provide content for the website; or
  2. upon finalisation of the website and uploading of content providing the Customer has been timely in the provision of content (but in any event, before the website goes live).

In respect to a project invoiced on an hourly consultancy fee:

i.        an itemised invoice & timesheet will be generated weekly on Sunday and delivered electronically

ii.        this invoice must be paid in full within 14 days of the invoice issue date

6.5        RedTwenty reserves the right to charge (and the Customer acknowledges it will be liable for) further fees where the Customer provides instructions or content outside the time frames set out at clause 6.4 above.

 

Title and Risk

7.1        RedTwenty reserves all title to and in the Services (including Intellectual Property Rights) provided to the Customer until all outstanding amounts owed by the Customer to RedTwenty are paid in full.

7.2        Notwithstanding this, all risk in respect of the Services will pass to the Customer upon delivery (which will occur in the case of a website or eLearning content when RedTwenty publishes the website or eLearning content and for the other Projects upon submission of the completed electronic file or delivery of hard copy printed material).

 

Intellectual Property

8.1        In this section Intellectual Property Rights means all intellectual property rights at any time protected by statute or common law, including:

  1. patents, copyright and any registered intellectual property rights, moral rights, registered designs, trademarks and goodwill; and
  2. any application or right to apply for registration of any of the rights referred to in paragraph (a) of this definition.

8.2        Any pre-existing Intellectual Property Rights owned by RedTwenty before the commencement of this Agreement will remain vested in RedTwenty.

8.3        Any pre-existing Intellectual Property Rights owned by the Customer before the commencement of this Agreement will remain vested in the Customer.

8.4        The Customer agrees to grant to RedTwenty a royalty-free, non-exclusive, non-transferable, license to use and modify its pre-existing Intellectual Property Rights for the purposes of this Agreement and the subject matter contemplated in this Agreement (which specifically includes any self-promotional, advertising of services or competitive purpose).

8.5        All Intellectual Property Rights created by RedTwenty, its employees or contractors (either in the Projects or not) pursuant to or connected with this Agreement will vest in RedTwenty and the Customer agrees to do all things necessary and sign all documents to give effect to this clause.

8.6        If the Customer’s Content contains any third party Intellectual Property Rights, then the Customer is responsible for, and must obtain all necessary licenses, permits and authorisations and pay all necessary fees and royalties to use that material or those rights. The Customer will indemnify RedTwenty against any loss, costs, expenses, demands or liability whether directly or indirectly arising out of a claim by a third party as a result of a breach of this by the Customer.

8.7        Upon payment of all outstanding amounts owing to RedTwenty under this Agreement, RedTwenty agrees to grant to the Customer a royalty-free, non-exclusive, single license to use (but not modify) RedTwenty’s Intellectual Property Rights in the completed Projects. Notwithstanding, the Customer must not modify in any way whatsoever RedTwentys’ Intellectual Property Rights (or any part thereof).

 

Defaults and Rights

9.1        RedTwenty may terminate the Agreement without notice if the Customer is in default under this Agreement or commits an act of insolvency and an external administrator or controller, liquidator or trustee in bankruptcy is appointed to the Customer or the Guarantor (Default).

9.2        In the event of a Default, all monies outstanding will become immediately due and payable by the Customer together with all legal costs and expenses associated with recovery of the outstanding balance on an indemnity basis.

9.3        No failure or delay of RedTwenty to exercise any right or enforce any obligation of the Customer and no waiver or indulgence by RedTwenty of any particular default by the Customer will affect or prejudice RedTwenty’s rights in respect of any subsequent default.

 

Cancellations

10.1       Cancellation of any Services at any stage of a Project must be received by RedTwenty in writing from the Customer and RedTwenty will retain any starting fee.

 

Purchaser’s Warranties

11.1       The Customer acknowledges and warrants that:

  1. it is solvent and able to pay its debts as and when they fall due;
  2. it is not executing this Agreement as a result of or by reason of or in reliance upon any promise, representation, statement or information of any kind whatever given or offered by or on behalf of RedTwenty whether in answer to an enquiry or otherwise;
  3. prior to the placement of any Job Commencement Form, it has made his own independent enquiries as to the quality
  4. and fitness for purpose of the Services; and
  5. to the extent permitted by law RedTwenty makes no warranty, promise or representation in relation to the Services, either expressly or impliedly and any warranties, terms and conditions in relation to the state, quality or fitness of the Services for any purpose, whether implied by use, statute or otherwise is, to the extent permitted by law, hereby excluded; and
  6. the Customer’s Content will not breach or infringe the Trade Practices Act 1974 or any other law, regulation or code, infringe copyright, trade mark or other intellectual or moral property rights of any person, partnership or company or contain material that is obscene, offensive or defamatory.

 

Liability

12.1       To the extent permitted by law and unless otherwise expressly agreed, RedTwenty does not provide and expressly excludes all warranties in respect of the Services.

12.2       The Customer acknowledges and agrees that to the extent permitted by law, RedTwenty will not be liable for, and the Customer releases RedTwenty in respect of, any claim, loss, cost, damage or expense (Claim) arising out of any act or omission of the Customer or its employees, officers or agents unless that Claim is a direct result of the negligence or breach of this Agreement by RedTwenty.

12.3       The parties agree that any liability for a Claim against RedTwenty will be limited to the lesser of:

  1. the re-supply of the services in question (if applicable);
  2. the cost of the re-supply of the services in question (if applicable); or
  3. the fee amount of the original supply of the services.

12.4       Notwithstanding any of the above, the parties agree that RedTwenty will under no circumstances be liable to the Customer for any indirect or consequential loss (including but not limited to loss of income).

 

General

13.1       RedTwenty may assign or otherwise transfer any of its rights under this Agreement. The Customer may not without the prior written consent of RedTwenty (which consent may not be unreasonably withheld) assign or otherwise transfer any of its rights or obligations under this Agreement.

13.2       This Agreement represents the entire understanding of the parties as it relates to the subject matter and supersedes all prior arrangements or agreements

13.3       This Agreement will be governed by and interpreted in accordance with the laws of the State of New South Wales.