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BOYLEN

Terms of Service

Last updated November 2021

Thank you for considering our services.By using the products and services we supply, you are agreeing to the terms and conditions listed below.Please read them carefully.

To the fullest extent legally possible, all contracts and dealings between Boylen Media Pty Ltd (ACN 104 209 118) trading as Boylen Media (and each of its subsidiaries, affiliates, associated companies, related entities, successors and assigns) (Boylen) and any person (Client) relating to any services are subject to the terms and conditions of trade set out below unless otherwise expressly agreed in writing.

1. Definitions

In these terms and conditions, the following terms have the following meaning:

“Fees” means the fees specified in a formal quote, Statement of Work or other agreed document;

“Functional Specification” means agreed scope of Services or deliverables by Boylen to the Client;

“GST” has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

“Moral Rights” means the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity granted to authors under the Copyright Act 1968 (Cth), and any similar rights existing under any foreign laws.

“Payment Schedule” means the schedule for invoicing and payment of Fees as specified in a Statement of Work;

“Proposal” means the information contained in a Statement of Work specifying details of the Services to be provided by Boylen to the Client;

“Services” means the services provided to the Client by Boylen specified in a Statement of Work or similar document, as may be amended from time to time;

“Statement of Work” means any agreement to provide any Services or deliverables by Boylen to the Client; and

“Terms and conditions” means these terms and conditions as amended or supplemented in accordance with its terms

2. Fees

The Fees shall be as specified in writing, with written confirmation provided by the Client.  Ongoing Fees are subject to perodic review and Boylen may vary the Fees by giving the Client not less than 1 months’ notice in writing.

The issuing of invoices by Boylen and the payment of Fees by the Client will accord with the details specified in the Payment Schedule of a Proposal Document or Statement of Work.  If no such Payment Schedule is specified, then a default payment schedule applies, being that Boylen will issue invoices on a quarterly basis and payment in respect of such invoices is due to be paid within 30 days of the date of each respective invoice (Default Payment Schedule).

3. Acceptance

Any instructions received by Boylen from the Client for the provision of Services and/or the Client’s acceptance of the provision of Services supplied by Boylen shall constitute acceptance of the terms and conditions contained herein.

4. Design

Customised designs used by the Client shall become the property of the Client once full payment has been received by Boylen. The Client will be provided with design revisions as per the accepted Proposal. Additional rounds of revisions will be estimated and invoiced separately.

Branding assets (logo, photography, imagery) are to be supplied by the Client unless otherwise agreed upon.  Boylen can assist with providing royalty free images and video at an agreed fee.

Failure to deliver content/artwork/branding assets by the agreed milestones will trigger a review of all project timelines and deliverable dates

5. Content Population

Content/product information is populated via the agreed Content Management System (CMS).  Boylen’s estimations do not include entering Client content (text, images, video etc.) into the website beyond the initial pages required for the development of high level page templates, unless the Client Proposal specifically states otherwise.

The Client is solely responsible for the content of the website or application.  This includes accuracy of content and legal right to include content and other assets on the site. The Client agrees to allow Boylen full access to the Client’s website for the purposes of Search Engine Optimisation (SEO) and adjustments.

6. Changes to Scope

Estimates/quotes are based on Boylen’s best understanding of the Client’s requirements based on the information provided.  This is an estimate only and subject to change following further specification of exact requirements.  This understanding may change because of further instructions from the Client or, by Boylen’s discovery that there are consequences to other parts of the project that were not anticipated, or were not able to be anticipated.  If this is the case, Boylen reserves the right to vary this quote by an agreed amount.  Boylen undertakes to inform the Client promptly of any risk that might take an estimate or quote beyond the stated amount and provide the Client with a revised quotation.

Any services not included in the Proposal that require additional costs will be addressed separately via a change order prior to execution of the requested services.

The estimate/quote may be a summary only.  For complex projects and at Boylen’s discretion, Boylen may provide the Client with a Functional Specification. If Boylen does, the Client’s acceptance of Boylen’s estimate or quotation confirms that the Client has read, understood and accepted the Functional Specification.

7. Hosting, Security and Backups

Hosting and any licensing charges (if applicable) for websites commence on the creation of the website, after design acceptance.  Hosting and licensing will be invoiced quarterly (if applicable). All hosting charges are processed by direct debit in advance.

Boylen accepts no responsibility for down times, delays, breakdowns or data loss caused by internet service providers.

If the Client’s website begins to demand hosting resources beyond what has been agreed and allocated, Boylen reserves the right to recommend steps to increase those resources at a charge.

8. Bug Fix Period

The Client’s website is covered by a 30-day bug fix period (Bug Fix Period), commencing from time of training or when it is launched (whichever comes first).

A pre-paid support plan can be subscribed to in advance for a reduced hourly support rate and can be used for fixes that fall outside of the Bug Fix Period as well as content population, additional training and image editing and optimisation.

Boylen does not cover any errors or faults that could not have been reasonably foreseen by Boylen prior to and during the project development.  These include the introduction of new internet browsers or major browser versions, changes to search engines, changes to third party modules or plugins, upgrades to hardware and software as part of the provision of web hosting, integration or update of software and technologies and changes to content that may exceed original design parameters.

All risk for the Services or goods passes to the Client on delivery.

9. Payment

The Fees set out in a Proposal are exclusive of GST and guaranteed for 30 days from the date of a Proposal.

Staged payments will be outlined in the Proposal but typically involve a deposit on acceptance and no work will commence until payment is received.

Projects that remain inactive for 4+ weeks will be billed 25% of the total Fees in order to ensure a place on Boylen’s schedule of work for an additional month.  All project timelines will need to be revised.

Cancellation Policy.  If a project is cancelled by the Client within 30 days of project approval, 65% of the initial deposit (if paid) will be refunded to the Client.  The Client is not entitled to a refund of any monies paid by the Client following cancellations after 30 days of project approval.

Where Boylen has reached a project milestone that requires a Client to take some action, and through inaction the Client delays Boylen from reaching that milestone for 30 days or more, then Boylen is entitled to issue the milestone invoice and the Client agrees to pay it.

Hosting, Licensing, Domain Registration, SSL charges commence at the time these products/services are established by Boylen, usually on or before the completion of the first project milestone.

Website hosting will be invoiced quarterly (unless otherwise specified).

Domain registration and renewals will be invoiced bi-annually (unless otherwise specified).

Email hosting will be invoiced bi-annually (unless otherwise specified).

Entry-level website hosting will be invoiced bi-annually (unless otherwise specified).

All hosting/licensing/renewal charges will be processed by direct debit in advance and will continue to be charged unless Boylen are advised in writing by the Client at least 30 days prior to the expiry date.

10. Project Management

The Client and Boylen will determine a mutually agreeable project schedule during the project definition phase.

The time estimates provided in the project compass are dependent on the cooperation of the Client’s project team as well as the timely receipt of assets and approvals.

The Client will identify one point of contact (Project Manager) to facilitate the communication process and to approve deliverables and milestones.

The Client will make available the appropriate stakeholders and resources required to review and approve wireframes and creative in a timely manner.

The Client will provide a response or sign-off for each deliverable within a reasonable timeframe in accordance with the agreed project deadlines to maintain project continuity and enable the scope of the project to proceed.

11. Website Training

The project proposal includes one hour of CMS training (unless otherwise specified) by a client support officer and is held at the Boylen office.

Off-site training can be provided upon request and will incur additional charges.

12. Confidentiality

During the course of providing the Services, Boylen may become party to information that is confidential and of value to the Client.  Boylen shall not disclose this information to any outside party without the prior written consent of the Client.  Employees and contractors engaged by Boylen are bound not to divulge any information relating to clients or the project at hand.  Every attempt will be made to secure information, articles or items belonging to the clients, which are handled by Boylen during the project.

The Client shall keep in strict confidence all Proposals, estimates, technical or commercial know-how, processes or initiatives which are of a confidential nature and have been disclosed to the Client by Boylen and any other confidential information concerning Boylen’s business or its products which the Client may obtain.  The Client shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know it for the purpose of discharging the Client’s obligations to Boylen.

13. Intellectual property rights

Where Boylen has created any copyright including but not limited to source code, written material, logo or other design, drawings, images, illustrations or documents (Boylen Content) for a Client as part of providing the Services for a particular purpose (Purpose), copyright in the Boylen Content shall remain vested in Boylen and Boylen grants the Client a non-exclusive revocable licence to use the Boylen Content for the Purpose.

The Client agrees that it will not assert any rights in, or challenge Boylen’s title to, the Boylen Content.

The Client represents and warrants that all designs or instructions to Boylen will not cause Boylen to infringe any patent, registered design or trade mark in the execution of the Client’s order and the Client agrees to indemnify Boylen against any action taken by a third party against Boylen in respect of any such infringement.

14. Non-Solicitation

The Client understands that Boylen has engaged in systematic efforts to recruit, train, and retain a team of talented, effective personnel.  Absent of Boylen’s written consent, the Client must not, by itself, or in collaboration with others — during the term of any contract with Boylen and for a period of one year from the date of termination of the Services — directly or indirectly solicit, induce, recruit or encourage Boylen personnel to leave their employment or to work for any other person or entity.

Client acknowledges, understands, and agrees that its solicitation of Boylen personnel would cause Boylen to sustain injury and damages in an amount difficult to ascertain and prove.  In the event of such a breach, Client must pay to Boylen liquidated damages in an amount equal to the total compensation received by headhunted personnel during the last 6 months of employment with Boylen.  This amount is a genuine pre-estimate of harm, and this provision is not intended as a penalty.  Rather, this provision is intended to provide for liquidated damages, without which Boylen would have no adequate remedy for the injury and damages it sustained.  Such liquidated damages are due and payable within 7 days of Client’s receipt of the Boylen written demand.

15. Indemnity

The Client must indemnify Boylen and keep Boylen indemnified against any loss, damage, liability and costs (including legal costs on a solicitor-client basis) Boylen may sustain as a result of any breach of these terms and conditions, negligence or any other act or omission by the Client or its contractors.

16. General Terms

Boylen reserves the right to change these terms and conditions at any time.  It is the Client’s responsibility to check these terms periodically for changes.

Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.

The Client agrees not to assign or transfer or otherwise deal in any way with any rights granted by Boylen or obligations the Client undertakes without Boylen’s express written permission, which permission may be granted or granted subject to conditions or refused in Boylen’s absolute discretion.

No right under these terms and conditions will be waived by a party except by express written notice signed by that party.

If any provision of these terms and conditions are found to be invalid, unenforceable or illegal, then that provision will be deemed to be deleted to the extent necessary to remove the invalid, unenforceable or illegal portion and the balance of these terms and conditions will remain binding.

If any dispute arises in relation to these terms and conditions which can not be resolved by negotiation, the parties will confer and seek to agree the most appropriate mechanism for resolution of the dispute before commencing any proceedings, provided that this provision will not apply where a party reasonably concludes that injunctive or other urgent proceedings are necessary to protect its position.  If a dispute also involves other parties, then the parties to these terms and conditions must co-operate and seek to agree a dispute resolution process that will effectively resolve all disputes between all parties.

Notices or other formal communications under these terms and conditions may be given by hand delivery, by mail or by email or facsimile transmission and will be deemed to be received:

  1. in the case of hand delivery, upon delivery;
  2. in the case of mail, three (3) business days after the date of posting the article; or
  3. in the case of email or facsimile, upon completion of transmission (except where transmission is completed after 5:00 pm on a business day, in which case receipt is deemed to occur at 9:00 am on the next business day).

All contracts made with Boylen shall be deemed to be made in the State of South Australia and will be governed by the laws of South Australia.  The parties to this contract shall submit to the courts of South Australia to determine any dispute arising.

17. Boylen Contact Details

Address: 3/288 Glen Osmond Road, Fullarton, SA, 5063
Phone number: (08) 8233 9433

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