Version 4.1 – Effective 16 Apr 2025
DIGITAL DEEP PTY LTD • ACN 642 003 503 • ABN 89 890 553 802 • trading as Web Programmer and Digital Deep
In these Terms, "we", "us" or "our" means Digital Deep Pty Ltd; "you" or "your" means the Client.
A "small business" means a business with annual turnover under AU$10 million.
"Proposal" or "Statement of Work" means our written description of services, deliverables, fees and timeline.
We provide digital and graphic design, development, hosting, programming and related digital services as described in the Proposal.
We warrant that the deliverables will substantially conform to the specifications in the Proposal for 30 calendar days after your acceptance ("Warranty Period"). During this period, we will fix any defects at no additional cost.
After the Warranty Period, any modifications or fixes are billable at our standard rates. This warranty excludes issues caused by:
Supply all text, images, logos, credentials and other materials ("Your Content") when requested.
Respond within 5 business days (unless agreed otherwise). Delays may impact cost and schedule.
You warrant you have legal rights to Your Content and that your use of deliverables complies with all laws (privacy, accessibility, advertising, etc.).
You are responsible for ensuring our services meet your specific business needs as set out in the Proposal.
Typically 50% upfront before work begins, as stated in your Proposal.
Due upon project completion/delivery, before launch or handover (unless otherwise agreed).
Fees exclude GST unless stated. Australian clients will be invoiced GST where applicable.
Query invoices within 7 days.
Interest on overdue amounts will accrue at the rate prescribed by the Supreme Court Act 1970 (NSW) plus 2%. We may suspend work until payment is received. You are responsible for any debt-recovery costs we incur.
Upon full payment, you own the intellectual property in the final, bespoke deliverables specifically created for your project under this Proposal.
We retain all rights, title, and interest in any pre-existing or independently developed tools, libraries, utilities, code snippets, components, processes, know-how, or other intellectual property ("Background IP"), whether created before or during this engagement. This includes any reusable logic or code that is not unique to your project.
We grant you a perpetual, royalty-free, non-exclusive licence to use our Background IP only as necessary to operate the deliverables provided under this Proposal. This licence is non-transferable and does not permit reuse outside of this project.
If the deliverables include third-party code, tools, or paid software components, we will identify them and pass through any applicable licences. You agree to comply with those terms.
You grant us a perpetual, royalty-free licence to showcase screenshots or descriptions of the final deliverables in our portfolio, provided that we seek your prior approval before disclosing any commercially sensitive material.
You retain full ownership of all content, assets, and data you provide ("Your Content"). We will not use Your Content outside of your project.
We use reasonable efforts to maintain hosting availability but do not guarantee 100% uptime. As we rely on third-party hosting providers, service interruptions may occasionally occur that are outside our direct control.
We will give at least 48 hours' notice for planned maintenance windows.
No illegal activity, spam, malware distribution, rights infringement or actions harming our network. We may suspend access on suspected abuse.
Backups we perform are a courtesy. You must maintain independent backups of critical data. We are not liable for lost data.
Provide 30 days' written notice to cancel hosting. Fees accrue through the notice period.
We handle personal information under the Privacy Act 1988 and our Privacy Policy. You agree to notify us within 3 business days of any data breach or privacy complaint.
If we suffer a data breach requiring notification under the Notifiable Data Breaches scheme, we will notify you promptly.
Your data may be transferred to and stored on servers in Australia (e.g., AWS Sydney, Azure Sydney) and other countries, including Singapore and the USA. For any overseas transfers, we take reasonable steps in line with APP 8 to ensure your data is handled with comparable safeguards to Australian privacy standards.
We implement reasonable technical and organisational measures. Payment processing uses reputable third parties; we do not store full credit-card data.
Both parties agree to keep each other's confidential information confidential for 3 years after termination. Confidential information excludes data that is public, already known, or independently developed.
We perform services with professional care. Timelines are estimates, not guarantees.
If ACL applies, you may cancel for major failures and receive a refund for the unused portion or compensation for reduced value. For non-major failures, we will remedy or you may cancel and obtain a refund for the unused portion.
To the extent ACL permits, our liability for failure to comply with guarantees is limited to re-supplying services or covering the cost of re-supply.
We are not liable for indirect or consequential loss (profits, business interruption, data loss, goodwill), except where law prohibits exclusion.
Our aggregate liability is capped at the lesser of:
This cap applies regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise.
Neither party is liable for delays or failures due to events beyond reasonable control (natural disasters, pandemics, government acts, major outages).
You indemnify Digital Deep Pty Ltd against any claim, loss, damage, liability, cost or expense (including legal fees) arising from:
We will defend you against claims that deliverables infringe Australian intellectual property rights, provided that:
This indemnity excludes claims resulting from:
If a deliverable is found (or likely) to infringe rights, we may:
This section states our entire liability for intellectual property infringement.
During the term of this Agreement and for 12 months after its end, you agree not to:
If you breach this clause, you agree to pay a recruitment fee equal to 50% of the solicited individual's annual salary or contract value. This fee reflects our recruitment and training investment and is not a penalty.
Terminate anytime with written notice. You pay for work completed any non-cancellable costs incurred. Any deposit paid is non-refundable unless agreed otherwise in writing.
We may terminate with written notice if you:
Upon termination, you must cease using the deliverables and pay all outstanding fees.
If a dispute arises, both parties agree to attempt resolution in good faith before taking legal action.
If unresolved, either party may request a mediator be appointed by the Australian Disputes Centre. Mediation will take place in Sydney, NSW, unless agreed otherwise.
If mediation fails, parties may take legal action. Each party bears their own costs, unless a court orders otherwise.
These Terms are governed by the laws of New South Wales, Australia. Legal proceedings must be brought in NSW courts.
Our relationship is that of independent contractor and client. Nothing in these Terms creates a partnership, joint venture or employment relationship.
These Terms, together with the Proposal, form the entire agreement and override any other discussions or understandings.
Changes to these Terms must be in writing and signed by both parties.
You may not assign this Agreement without our written consent. We may assign our rights with notice to you.
Clauses relating to confidentiality, intellectual property, liability, indemnity, and post-termination obligations survive expiry or termination.
If any part of these Terms is unenforceable, it will be severed and the rest will remain in effect.
Notices must be sent to the email or address in the Proposal and are deemed received when sent (unless a bounce or error is received).