Mutual Agreement

Mutual Agreement

Terms & Conditions

These Terms and Conditions (“Terms”) govern the relationship between, The Hope Factory Pty Ltd ATF Cox Family Trust (“us” or “we” or “our”), and the party referenced in the Proposal, Quote or Invoice (“you”).

1 SUMMARY

1.1 These Terms outline the terms under which you agree to hire us for, and we agree to provide you with, the services and fees relating to the Scope of Works as described in the proposal we have given you (Services).

2 WHAT DO BOTH PARTIES AGREE TO DO?

2.1 Your Obligations

1. a) You agree to cooperate with us regarding the Services and to provide us with everything that we'll need to complete the project – including (but not limited to) content and access to relevant apps and services pertaining to your website;
2. b) You agree to complete any to-do's assigned to you (including testing if applicable) in our project management system by the agreed due date;
3. c) If applicable, you agree to approve and sign up for recommended Apps, understanding that in most cases, recurring fees will apply and be charged by a 3rd party (e.g. Shopify);
4. d) If applicable, you agree to approve and sign up for a recommended Theme, understanding that in most cases, a one-off fee will apply and be charged by a 3rd party (e.g. Shopify);
5. e) You acknowledge and agree that all design is based on the ready-made theme approved and purchased, the customisation of any such theme design is specifically outside the Scope of Works, and any required customisation will be the subject of a separate engagement;
6. f) If applicable, you will need to provide content for the relevant pages in your Shopify store:

• Core pages - Home, About, Contact, 404 Error, Blog etc.
• Product pages - Collection (eg. brands), Product, Checkout and Cart
• Legal pages - Returns, Privacy, Shipping etc. (Shopify offers templates)

The layout of these pages will be guided by the theme you have chosen.

1. g) You will need to provide photographs for your Shopify store. You’ll need to supply graphic files to us in an editable, vector digital format. Photographs must be in a high-resolution digital format. If you choose to buy stock photographs, we can suggest stock libraries and styles of photography/images. You agree that you own any materials you send us, or you possess the rights to sub-license the materials for our use in the project delivery as per the Scope of Works.
2. j) You must include us in any relevant discussions with internal or external partners that relate to the Services so we are all working in the same direction towards your goals;

2.2 Our Obligations

1. a) We will comply with all laws and perform the Services with due care, skill and diligence;
2. b) We will meet the requirements outlined in the Scope of Work;
3. d) We are not responsible for writing or inputting text content unless specified in the Scope of Works. We’d be happy to help, though, and we will quote this work outside of the Scope of Works, and we will charge you at our standard copywriting and/or content input rates, as advised by us to you in writing;
4. e) If applicable, we will guide you on sizing photographs and can crop the initial images added to the site if required.

3 RESULTS MAY VARY

3.1 We are committed to working with you to achieve your goals, however as there are many factors outside of our control that may limit progress towards your e-commerce goals, we can’t guarantee that a specific goal or result will be achieved (e.g. if we are working towards 2.5% conversions, we may only get to 2% due to many other factors).

3.2 We provide no warranty that any result or objective can or will be achieved or attained at all by a given completion date or any other date.

4 SHOPIFY

4.1 Shopify is a third-party, and therefore, we explicitly disclaim any and all responsibility for any failures associated with any software associated with Shopify (including the Shopify platform), any of its third-party software, tools or applications (together “Software”), or any failures associated with any third-party Software .

5 WEBSITE SPEED AND PERFORMANCE

5.1 Your website speed and performance is impacted by a number of factors, including but not limited to, the performance of third-party services such as Shopify / Shopify Plus and payment gateways, your customers’ devices, networks and locations, the number of apps and features on your website, and the local browser cache (“the Speed and Performance Variables”). You agree and acknowledge that the nature of the Services and the Speed and Performance Variables rely upon a number of factors that are outside of our control. As such, we are not responsible and will not accept liability for any loss or damage (including consequential loss or damage) due to the Speed and Performance Variables including after the website account ownership has been transferred by us to you.

5.2 We are unable to provide you with a guarantee of any website speed score and do not warrant that the website speed score will meet your expectations.

6 ADDITIONAL WORK‌

‌6.1 Any additional work that you require that is not included in the Scope of Works (Additional Work) will incur extra costs (e.g. including, but not limited to, a blog post completed by a copywriter).

6.2 For any Additional Work, we will offer you an estimate of the development time and associated additional cost that the additional work will take and get your permission before we start the work.

6.3 Any Additional Work will be subject to these same terms in these Terms unless otherwise specified in the relevant proposal for that Additional Work.

7 WORKING WITH OUR PARTNERS

7.1 If we wish to refer you to one of our third-party partners to deliver work under these Terms, we will get your advanced permission before doing so.

8 WORKING WITH YOUR PARTNERS

8.1 We want to make sure you get the best results from the provision of the Services, and to do this effectively we may need to communicate and cooperate with everyone who is working with you on your business (including your advertising or SEO agencies, marketing directors or business coaches). You agree to allow us to communicate with such third-party partners as required and as directed by you.

9 INVOLVEMENT OF OTHERS

9.1 Other than our right to use sub-contractors under Section 16 of this Agreement, where and if an external expert is not included in the Scope of Works and the services of an external expert or integration specialist is deemed required by The Hope Factory (in its sole discretion), an estimated cost and timeframe and involvement will be provided to you for your written consent (such consent cannot be unreasonably withheld).

10 RELATIONSHIP BETWEEN THE HOPE FACTORY & RETAIL EXPRESS

10.1 For our website development project, the agreement is between The Hope Factory and you, and this agreement is in no way related to Retail Express.

10.2 The Retail Express data connector is licensed from and by Retail Express directly to you. Please get in touch with Retail Express to sign up for the Retail Express data connector or any additional Retail Express products.

11 TECHNICAL SUPPORT

11.1 We are happy to help you with any issues you encounter with your Shopify store and with strategy questions. Our support will incur additional costs if these fall outside the Scope of Work.

11.2 You can access support by purchasing a block of development time (valid for 12 months or in accordance with the Scope of Works) to work on the issues or follow up with Shopify App developers after your store has launched, on terms as agreed between the parties.

11.3 For all Shopify-related questions, you can contact Shopify support, and they will direct you to us if they think we can help; any assistance is subject to the immediately preceding paragraph. We are available for support 9 a.m. – 5 p.m. on weekdays via support email (support@thehopefactory.com).

11.4 For all Retail Express-related questions, you will get a quicker response if you direct them to their support desk.

12 LIABILITY

‌12.1 Nothing in these Terms are intended to limit or exclude your consumer guarantees under the Australian Consumer Law. Apart from those that cannot be excluded, we exclude all conditions and warranties that may be implied by law, and disclaim liability for any consequential or indirect loss you may incur. To the extent permitted by law, our liability for breach of any implied warranty or condition that cannot be excluded is restricted to the re-supply of services or payment of the cost of re-supply of services.

12.2 To the extent permitted by law, the total liability of a party to the other party under or in connection with these Terms in respect of all claims will not exceed the fees paid or payable for the Services in the 6 months prior to the claim. Liability for breach of a guarantee conferred by the Australian Consumer Law Limited: (a) to the cost of re-supplying the Services, or (b) making full payment for the cost of re-supplying the Services.

13 TIMELINES

13.1 Along the way, we will endeavour to meet all the deadlines set and will notify you of any delays at our end. We can’t be responsible for a missed launch date or a deadline if you have been late in supplying materials.

13.2 Failure to keep to any agreed timelines as a result of your non-cooperation or failure to provide the required information will automatically extend any timeline in the Agreement by the same amount of time of any delay on your part to provide us with the required information.

‌13.3 Projects that are dormant for longer than 45 days because of a lack of instructions from you may incur additional fees to re-start You will still be required to pay according to the original payment schedule, even if the project is delayed from your side.

14 FEES AND BILLING SCHEDULE‌

14.1 In exchange for the Services, you agree to pay us the fees specified in the Proposal in accordance with any payment methods and payment timetables set out in the Proposal. These fees will be subject to change if Additional Work is required.

14.2 We will provide valid tax invoices to you. You agree to pay any tax invoice promptly and within the stated timeframe, which, if not stated, will be seven days from the date of the tax invoice.

‌14.3 If the Proposal specifies a direct debit fee arrangement to pay the tax invoices, then you must complete the direct debit request form and agree to the direct debit services Terms that we provide you separately. Your direct debit payments will be subject to the terms of those documents.

14.4 If it is required for the Services that we reasonably obtain any goods or services from third parties, you agree to pay these at cost. Without limitation, such expenses may include stock imagery and similar material.

‌14.5 If GST is payable for any of the Services, you must pay us an amount equal to the GST payable on the supply of Services (GST Amount). The GST Amount is payable by you in addition to and at the same time as any consideration for the supply, provided that we have given you a Tax Invoice.

‌14.6 If you have not paid a validly issued invoice within 30 days, we may do any or all of the following (at our discretion):

(a) charge interest on the outstanding amount at no more than 10% per annum;

(b) require you to pay in advance for any Services which have not yet been performed;

(c) not perform any further Services, and

(d) delete the Services from our development environment.

15 TERM AND TERMINATION‌

15.1 These Terms shall become effective on the date that you accept the Proposal, and it will continue until terminated by either party in accordance with the terms of these Terms. For the avoidance of doubt, you will be deemed to have accepted the Proposal once you agree (either verbally or in writing) for us to commence providing the Services.

‌15.2 Either party can terminate these Terms for any reason by providing the other party with 45 days written notice.

15.3 You will be required to pay any invoices and fees accrued up until the date of termination at the end of any relevant notice period.

15.4 Either party may terminate these Terms on immediate written notice if: (a) The other party is in breach of these Terms and does not remedy the breach within 5 Business Days of receiving written notice of the breach; (b) The other party commits a breach of these Terms that is incapable of remedy; and/or (c) The other party repetitiously or wilfully breaches these Terms.

15.5 In the event of termination, you will be required to pay for any third-party materials, apps, services, etc., we have purchased or committed to for the Services up until the date that these Terms terminate (for the avoidance of any doubt, this means the day at the end of any required notice periods).

15.6 If upon termination there exist any materials furnished by us or any services performed by us for which you have not paid us in full, until such time as you have paid us in full, you agree not to use any such materials, in whole or in part, or the product of such services.

16 INTELLECTUAL PROPERTY, COPYRIGHT AND LICENCES

16.1 Any Copyright and Intellectual Property generated by us in the process of providing the Services (New IP) is owned absolutely by us and vests in us immediately until we receive final and complete payment for the Services, upon which the ownership in the New IP is vested in you. You must not use any use of the Services prior to payment being made in full.

17 OUTSOURCED SERVICES

17.1 We may involve third-party contractors, outsourced service providers and Software As A Service representatives (Apps, Themes, Platforms etc) in providing various aspects of our work. These services may include:

17.2 Theme modification, custom coding and advice App modification, custom coding and advice Spreadsheet data entry (non-sensitive data).

17.3 Acceptance of our services in conjunction with this engagement document indicates your acceptance of the use of outsourced services as described above.

17.4 Where the outsourced service requires that the disclosure of personal information to an overseas recipient, a consequence of your consent is that we (The Hope Factory) will be required to take reasonable steps to ensure that Australian Privacy Principles are complied with by the overseas recipients of the Personal Information.

17.5 You agree to our use of sub-contractors in the delivery of the Scope of Work to you.

‌18 CONFIDENTIALITY

18.1 Confidential Information means information that is confidential to you or to us and does not include information that one of us can establish:

(a) was in the public domain at the time it was given to the other party;

(b) became part of the public domain, without the other party’s involvement in any way, after being given to the party;

(c) was in the other party’s possession when it was given to the other party, without having been acquired (directly or indirectly) from the party; or

(d) was received from another person who had the unrestricted legal right to disclose that information.‌

‌18.2 Each party must not use any Confidential Information except to the extent necessary to exercise for one of your or our rights or perform your or our obligations under these Terms.

18.3 Subject to this clause, one of the parties may disclose Confidential Information if one of us is required to disclose by law or by order of any court or tribunal of competent jurisdiction or by any Government Agency, stock exchange or other regulatory body.

18.4 If one of the parties is required to make a disclosure as required by the previous paragraph, the other party must: (a) to the extent possible, notify the other party immediately it anticipates that it may be required to disclose any of the Confidential Information; and (b) only disclose Confidential Information to the extent necessary to comply.

18.5 We must each assist the other to comply with its obligations under the Privacy Act 1988 (Cth) in relation to Confidential Information.

19 NOTICES

19.1 A notice or other communication to a party must be sent by email to their email address of the other. The email will be treated as received when it enters the recipient’s information system or on the next Business Day, whichever occurs first.

20 CLIENT PROMOTION

20.1 You agree to allow us to use your business name and images of our final Services provided to you for the purposes of promoting our skills and services.

21 APPROVAL OF FINAL WORK

‌21.1 When we have created any material under the Services in any Proposal, we may provide you with a copy for your complete and thorough review prior to printing, implementation or installation (whether online or otherwise). If, upon review, you are satisfied that each and every aspect of the Services is accurate and complete, you will notify us that you give your final approval.

‌21.2 After this final approval is given, you waive any and all claims against us or our third-party contractors arising from and related to any alleged errors, spelling mistakes, typographical errors, omissions or incorrect information discovered in the material after your final approval. You are responsible for the fees for any subsequent changes, corrections or other services requested by you after final approval.

22 AMENDMENT AND ASSIGNMENT

22.1 We may assign the benefits of these Terms and the Proposal if we are acquired by another party, but only to the acquiring party, or if we undertake a corporate restructure. Otherwise the parties to these Terms may only assign or otherwise create an interest in their rights under this document with the written consent of each other party.

23 GENERAL PROVISIONS

23.1 Entire Terms. Except as otherwise set forth or referred to in these Terms, the Terms constitute the sole and entire Terms and understanding between the parties hereto as to the subject matter hereof and supersedes all prior discussions, agreements and understandings of every kind and nature between them as to such subject matter.