Terms & Conditions
Website Development Agreement
1. Definitions and Interpretation
1.1 Definitions
In this Agreement, the following words have the following meanings, unless expressly agreed
otherwise:
Agreement means Part A and Part B of this Website Development Agreement.
Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Business Day means Monday to Friday excluding public holidays in Brisbane .
Business Hours means 9:00am to 5:00pm on Business Days.
Confidential Information means any information or document about or in any way relating to the
terms of this Agreement or Lead Generator X in any media or form that is acquired by or made
available to the Client in the course of the relationship between the Parties, including but not limited to any
information or documents about the Website and development process, the Lead Generator X’
business, organisational structure, activities, operating procedures, products and services, trade secrets and
know how, finances, plans, transactions and policies.
Client Keywords means as agreed between Get Found Marketing and the Client in writing from time
to time.
Client Materials means as set out in clause 2.1.
Domain Name means as set out in Part A.
Fees means as set out in Part A.
Force Majeure Event means war, strike, lockout, natural disaster, flood, earthquake, act of God, or
other circumstances beyond the reasonable control of Lead Generator X
GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth)).
Insolvency Event means: (a) where the party is an individual, that party commits an act of
bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be
dealt with under any law relating to bankruptcy or insolvency; (b) where the party is a company, a
resolution is passed or Court order made for the winding up of that party or an administrator is
appointed to that party pursuant to any relevant law; (c) a receiver or manager or receiver and
manager is appointed to the assets or undertaking of the party or any part thereof; or (d) the party is
unable to pay its debts as and when they fall due.
Intellectual Property Rights means all copyright, trademark rights, patent rights, and design rights,
whether registered or unregistered, and all other rights to intellectual property as defined under
article 2 of the convention establishing the World Intellectual Property Organization, and all rights to
enforce any of the foregoing rights and Intellectual Property means any property that has these
rights, including the Client Materials.
Lead Generator X Code means all software, Source Code, Object Code, graphics, text, libraries
and other components of the Website.
Licence means as set out in clause 4.1.
Object Code means software code expressed in machine-readable form.
Payment Terms means as set out in the Part A.
Part A means the section marked “Part A – Commercial Terms” of this Agreement.
Website Development Agreement
Part B means this document.
Personal Property Securities Register means the Personal Property Securities Register established
under the Personal Property Securities Act 2009 (Cth).
Search Engines means Google.com or as otherwise agreed between the parties.
Services means as set out in Part A.
Source Code means software code expressed in human readable form, which when compiled,
assembled, interpreted or translated becomes Object Code.
Specifications means the specifications for the Website set out in your website brief.
Website means the website to be developed under this Agreement as set out in Part A and your
website brief.
1.2 Interpretation
In this Agreement:
(a) Headings and underlinings are for convenience only and do not affect the construction of this
Agreement.
(b) A provision of this Agreement will not be interpreted against a party because the party
prepared or was responsible for the preparation of the provision, or because the party’s legal
representative prepared the provision.
(c) Currency refers to Australian Dollars.
(d) A reference to a statute or regulation includes amendments thereto.
(e) A reference to a clause, subclause or paragraph is a reference to a clause, subclause or
paragraph of this Agreement.
(f) A reference to a subclause or paragraph is a reference to the subclause or paragraph in the
clause in which the reference is made.
(g) The recitals are correct and form part of this Agreement.
(h) A reference to time is to time in Sydney.
(i) A reference to a person includes a reference to an individual, a partnership, a company, a joint
venture, government body, government department, and any other legal entity.
(j) The words “includes”, “including” and similar expressions are not words of limitation.
2. Delivery of Client Materials
2.1 The Client must, within 14 days of the parties entering into this Agreement, deliver to Lead Generator X copies of
all logos, graphics, software, data and other materials and information which the Client wishes Get
Found Marketing to
incorporate into the Website (the “Client Materials”).
2.2 The Client warrants that all Client Materials that it or anyone on its behalf supplies to Get Found
Marketing, and all use
thereof by Lead Generator X for the purposes of this Agreement, will not infringe the rights of
any person or breach
any law or regulation.
2.3 The Client indemnifies Lead Generator X in respect of all and any loss and damage incurred
by Lead Generator X as a result of a
breach of the warranty in clause 2.2 or in respect of any use of Client Materials supplied by or on
behalf of the Client to Lead Generator X.
Website Development Agreement
3. Development of Website
3.1 Lead Generator X must develop the Website in accordance with the Specifications as soon as
reasonably
practicable.
3.2 For the avoidance of doubt, Lead Generator X is not required to, and will not, assign, license,
disclose or deliver any
Source Code or Object Code to the Client.
4. Licence to be granted to Client to use Lead Generator X Code in the Website.
4.1 Lead Generator Xg hereby grants to the Client a non-exclusive, non-assignable, nonsublicensable licence to operate
the Website (including the Object Code version of any Lead Generator X Code in the Website),
solely in the form
developed by Lead Generator X, and only in conjunction with the Domain Name (the “Licence”).
4.2 The Client agrees and acknowledges that in addition to Lead Generator X Code incorporated
into the Website, the
Website also relies on other Lead Generator X Code that is stored on Lead Generator X’
computer servers and that the Website
will not operate in accordance with the Specifications if the Website is unable to access the Lead Generator X code
held on Lead Generator X’ computer servers or if the Website is transferred to a third party
hosting provider that is
incompatible with J Lead Generator X CS’ computer servers.
5. Licence Restrictions
5.1 The Client may not make any use of Lead Generator X Code except as expressly permitted by
the Licence and may
not do or authorise the commission of any act or omission that would or might invalidate or be
inconsistent with Lead Generator X’s Intellectual Property Rights in Lead Generator X Code.
Without limiting the foregoing
provisions, the Client agrees and acknowledges that, except as expressly permitted by the Licence, it
must not and shall not, and will not permit any person to:
(a) licence, sublicence, resell, assign, transfer, distribute, or provide others with access to, Lead Generator X
(b) “frame”, “mirror” or serve any of Lead Generator X Code on any web server or other
computer server over
the Internet or any other network; or
(c) copy, alter, modify, create derivative works from, reproduce, resell, transfer to a third party,
reverse assemble, reverse engineer, reverse compile or enhance Lead Generator X Code (except
as expressly
permitted by the Copyright Act 1968 (Cth)).
5.2 The Client must not use Lead Generator X or the Website in any way which is in breach
of any statute,
regulation, law or legal right of any person.
6. Fees
6.1 The Client must pay the Fees to Lead Generator X in accordance with the Payment Terms.
6.2 The Fees are exclusive of all taxes, duties and customs including GST and the Client agrees to pay
JCS
all taxes, duties and customs, including GST, in respect of any Supply (as that term is defined in the A
New Tax System (Goods and Services Tax) Act 1999 (Cth)) made by Lead Generator X under this
Agreement. The
Client must pay all such taxes, duties and customs, including GST, at the same time as the Fees.
7. Client Obligations and Warranties
7.1 The Client warrants that it will not canvass, employ, induce or attempt to employ, induce, solicit
or
entice away from Lead Generator X, any employee or contractor that was employed by or
contracted to Lead Generator X during
the term that Lead Generator X provides Services to the Client or the prior twelve (12) month
period.
7.2 The Client warrants throughout the term of this Agreement that:
(a) there are no legal restrictions preventing it from entering into this Agreement;
(b) it will cooperate with us and provide Lead Generator X with information including any images
and log in
details as required, and comply with requirements in a timely manner, as requested by Lead Generator X
from time to time, that are reasonably necessary to enable Lead Generator X to perform the
Services;
(c) the information it provides to Lead Generator X is true, correct and complete;
(d) it will not infringe any third party rights in working with Lead Generator X and receiving the
Services;
Website Development Agreement
(e) it will inform Lead Generator X if it has any reasonable concerns relating to the provision of
Services under
this Agreement;
(f) it is responsible for obtaining any consents, licences and permissions from other parties
necessary for the Services to be provided, at its own cost, and for providing Lead Generator X
with the
necessary consents, licences and permissions;
(g) it consents to the use of its name and Intellectual Property in relation to the Services in a way
which may identify it;
(h) if applicable, it has a valid ABN which has been advised to Lead Generator X; and
(i) if applicable, it is registered for GST purposes.
8. Intellectual Property and Moral Rights
8.1 The Client agrees to provide information including Intellectual Property tLead Generator X
to enable Lead Generator X to
provide the Services. The Client:
(a) warrants that it has all necessary rights to provide the Intellectual Property to Lead Generator X
(b) grants Lead Generator X a perpetual, non-exclusive, royalty-free, irrevocable, worldwide and
transferable
right and licence to use the Intellectual Property in any way Lead Generator X requires to
provide the
Services; and
(c) consents to any act or omission which would otherwise constitute an infringement of its
Moral Rights.
8.2 If the Client (or any employee or agent) have Moral Rights in any Intellectual Property that the
Client
provides to Lead Generator X, the Client:
(a) irrevocably consents to any amendment of the Intellectual Property in any manner by Get Found
Marketing Lead Generator X for
the purposes of providing Services;
(b) irrevocably consents to Get Found Marketing using or applying the Intellectual Property for the
purposes of
providing Services without any attribution of authorship;
(c) agree that its consent extends to acts and omissions of any of Lead Generator X  licensees
and successors in
title; and
(d) agree that its consent is a genuine consent under the Copyright Act 1968 (Cth) and has not
been induced by duress or any false or misleading statement.
9. Ownership of Intellectual Property in the Website
9.1 The Client agrees and acknowledges that this Agreement and the development of the Website by
Lead Generator X, does not transfer or assign any Intellectual Property Rights to it.
9.2 As between Lead Generator X and the Client, Lead Generator X owns all Intellectual
Property Rights in Lead Generator X and in the
Website.
9.3 The Client has no rights in Lead Generator X other than the rights granted to it pursuant
to the Licence.
9.4 The Client must not take any step to invalidate or prejudice Lead Generator X’s (orLead Generator Xs licensors’) Intellectual
Property Rights in Lead Generator X or otherwise. Without limiting the foregoing
provisions, the Client must
not register any security interest or purchase money security interest on the Personal Property
Securities Register, or otherwise encumber or charge its rights in respect of Lead Generator X or under any
licence granted by JCS under this Agreement.
10. Development for other clients of Lead Generator X
10.1 The Client recognises that Lead Generator X and/or its related bodies corporate may
currently or in the future
develop materials internally, or through the receipt of information from others, that is similar to the
Website and/or the Lead Generator X or any part of them and Lead Generator X and/or
its related bodies corporate may
perform services similar to the Services provided hereunder for others.
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10.2 The parties agree that Lead Generator X and its related bodies corporate are not prevented
from providing services
or developing materials in relation to services that are competitive with those provided by Lead Generator X to the
Client hereunder regardless of any similarity to the Website or any part thereof.
11. Search Engine Optimisation – if applicable and agreed upon
11.1 The provisions of this clause 11 are only applicable where the Services expressly include Search
Engine Optimisation of the Website.
11.2 The Client authorises Lead Generator X to submit details of the Website to the Search
Engines.
11.3 Lead Generator Xmust submit the Website to the Search Engines within 45 days following
the development of the
Website by Lead Generator X.
11.4 If the Client wishes Lead Generator X to submit the Website to search engines which
require payment of a fee for
listing a website, or require payment of a fee to expedite the listing of a website, the Client shall be
responsible for all fees payable to the relevant Search Engine associated with such submissions and
listings in respect of the Website, and the Client must pay all such fees in advance to Lead Generator X.

Lead Generator X must
notify and obtain the approval of the Client to any such fees prior to submitting the Website to the
fee-charging search engines.
11.5 The parties acknowledge that the Client desires, and has engaged Get Found Marketing with
the object of, having the
Website listed on the first page of the Search Engines’ natural or unpaid (also known as organic)
results for searches carried out with the Search Engines using the Client Keywords.
11.6 Lead Generator X must, in the course of providing the Services, use its best endeavors to
assist the Client secure
first page Search Engine result rankings, but does not guarantee that the Website will be listed on
the
first page of the Search Engine results, in respect of the Client Keywords.
11.7 Lead Generator X may employ any legal techniques it chooses to employ in the course of
providing the Services.
11.8 Lead Generator X is not obligated to disclose to the Client the techniques used by Lead Generator X as part of the Services.
11.9 The Client agrees and acknowledges that:
(a) failure to achieve Website rankings with any Search Engines in any time period shall not
constitute breach of this Agreement;
(b) the Search Engines may regularly change the algorithms and policies used by the Search
Engines to determine the ranking of websites in the Search Engines’ search results;
(c) Lead Generator X has no control over any algorithms and policies of the Search Engines;
(d) the Website ranking for the Client Keywords with the Search Engines may at any time change
as a result of any changes made to the algorithms and policies of the Search Engines used by
the Search Engines to determine ranking of websites in Search Engine results;
(e) Search Engines sometimes drop rankings for no apparent or predictable reason.
12. Domain Name Registration
12.1 The provisions of this clause 12 are only applicable where the Services as specified in Part A
expressly
include “Domain Name Registration”.
12.2 If the Services include Domain Name Registration, Lead Generator X agrees to procure the
registration of the
Domain Name in the name of the Client (subject to availability).
12.3 The registration of the Domain Name, and all matters related to the registration, will be subject
to
the terms and conditions of the registrar that Lead Generator X engages to register the Domain
Name (“Registrar”)
(“Domain Name Supplier Terms”).
12.4 A link to a copy of the Domain Name Supplier Terms is set out in Part A. The Domain Name
Supplier
Terms are incorporated into this Agreement by reference.
12.5 Upon request, Lead Generator X will provide a copy of the Domain Name Supplier Terms to
the Client.
Website Development Agreement
12.6 The Client indemnifies Lead Generator X and the Registrar against all claims, losses,
damages, proceedings, fees,
costs and expenses incurred by either or both of them as a result of the breach by the Client of its
obligations under the Domain Name Supplier Terms.
12.7 The Client releases Lead Generator X from all and any claims, costs, proceedings and
allegations that the Client
would otherwise have in connection with any non-performance or other act or omission of the
Registrar.
12.8 Either party may terminate the provision of domain name registration in respect of the Domain
Name by 30 days notice to the other party.
13. Website Hosting
13.1 The provisions of this clause 13 are only applicable where the Services as specified in Part A
expressly
include “Website Hosting”.
13.2 If the Services include Website Hosting, Lead Generator X agrees to procure the hosting of
the Website.
13.3 The hosting of the Website, and all matters related to the hosting of the Website, will be
subject to
the terms and conditions of the hosting provider that Lead Generator X engages to host the
Website (“Hosting
Provider”) (“Hosting Provider Supplier Terms”).
13.4 A link to a copy of the Hosting Provider Supplier Terms is set out in Part A. The Hosting Provider
Supplier Terms are incorporated into this Agreement by reference.
13.5 The Client indemnifies Lead Generator X and the Hosting Provider against all claims, losses,
damages, proceedings,
fees, costs and expenses incurred by either or both of them as a result of the breach by the Client of
its obligations under the Hosting Provider Supplier Terms.
13.6 The Client releases Lead Generator X from all and any claims, costs, proceedings and
allegations that the Client
would otherwise have in connection with any non-performance or other act or omission of the
Hosting Provider.
13.7 Either party may terminate the provision of website hosting in respect of the Website by 30
days
notice to the other party.
14. Liability
14.1 Neither party is liable to the other party for any indirect, special or consequential loss or
damage
incurred by the other party, including liability for loss of profits, loss of business opportunity, loss of
savings, or loss of data.
14.2 Lead Generator X is only liable for direct loss incurred by the Client as a direct result of one
or more breaches by
Lead Generator X of its obligations under this Agreement. However, Lead Generator X’s
liability for all such direct loss is capped,
in the aggregate, at an amount equivalent to the Fees paid by the Client under this Agreement, and
which cap is reduced to the extent the Client or any Force Majeure Event caused or was responsible
for such loss.
14.3 The goods and services supplied under this Agreement may come with implied non-excludable
guarantees which are regulated by the Australian Consumer Law. The extent of the implied
guarantees depend on whether the Client is a ‘consumer’ of goods or services within the meaning of
that term pursuant to the Australian Consumer Law as amended. Where the Client is a ‘consumer’
for the purposes of the Australian Consumer Law, Get Found Marketing is required to provide the
following mandatory
statement (and shall be deemed to have hereby provided the statement) to the Client: “Our goods
come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled
to a replacement or refund for a major failure and for compensation for any other reasonably
foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the
goods
fail to be of acceptable quality and the failure does not amount to a major failure.”
14.4 If the goods or services supplied by Get Found Marketing to the Client are supplied to the Client
as a ‘consumer’ of
goods or services within the meaning of that term in the Australian Consumer Law as amended the
Client will have the benefit of certain non-excludable rights and remedies in respect of the goods or
services and nothing in these terms and conditions excludes or restricts or modifies any condition,
Website Development Agreement
warranty, guarantee, right or remedy which pursuant to the Competition and Consumer Act 2010
(Cth) is so conferred. However, if the goods or services are subject to a non-excludable condition,
warranty, guarantee, right or remedy implied by the Australian Consumer Law and the goods or
services are not ordinarily acquired for personal, domestic or household use or consumption, then
pursuant to s 64A of the Australian Consumer Law, Lead Generator X limits its liability for breach
of any such nonexcludable warranty, guarantee, right or remedy implied by the Australian Consumer
Law (other than
a guarantee implied by sections 51, 52 or 53 of the Australian Consumer Law) or expressly given by
Lead Generator X to the Client, in respect of each of the goods and services, where it is fair and
reasonable to do
so, at the option of Lead Generator X, to one or more of the following:
(a) if the breach relates to goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of such goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) if the breach relates to services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
14.5 In order for the Client to claim against Lead Generator X under a non-excludable warranty,
guarantee, right or
remedy provided by the Australian Consumer Law, or under an express warranty given in respect of
the goods or services provided under this Agreement, the Client must provide written notice to Lead Generator X
with documentary evidence substantiating the claim, for Lead Generator X’s review, and, in
respect of the Website,
must continue to use it only in accordance with the provisions of this Agreement.
14.6 Upon receipt of a valid claim from the Client under an implied warranty, guarantee, right or
remedy
provided by the Australian Consumer Law, Lead Generator X will contact the Client to arrange a
suitable remedy.
The Client may claim reasonable expenses incurred in making a valid claim under such a warranty,
guarantee, right or remedy by providing documentary evidence of the expenses to Lead Generator X The Client
will be responsible for any expenses incurred in relation to an invalid claim.
14.7 Where Lead Generator X elects to repair goods, the Client agrees that the goods may be
replaced by refurbished
goods of the same type rather than being repaired and refurbished parts may be used to repair
goods. The Client acknowledges that where the goods are repaired and are capable of retaining user
generated data, it is possible that the repair of the goods may result in loss of data.
14.8 Any warranty against defects provided by Lead Generator X to the Client as a ‘consumer’
under the Australian
Consumer Law is in addition to other rights and remedies of the Client under a law in relation to the
goods or services to which the warranty relates.
14.9 Where the Client is not a ‘consumer’ for the purposes of the Australian Consumer Law, all
conditions,
warranties and guarantees implied in this Agreement are excluded, to the extent possible by law.
15. Confidentiality
15.1 Each party agrees and acknowledges that it may receive Confidential Information of the other
party
during the term of this Agreement.
15.2 Each party (the first party) agrees and acknowledges that the Confidential Information of the
other
party will be received and held by the first party in strict confidence and will not be disclosed by the
first party, except:
(a) with the prior written consent of the other party;
(b) where disclosed to the employees or professional advisors of the first party on a confidential
basis;
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(c) as required by the rules of any stock exchange; or
(d) as required by a court of competent jurisdiction, and then, only to the extent required, and
provided that the first party must promptly notify the other party of such requirement of
disclosure and provide full particulars to the other party of the disclosure.
15.3 Confidential Information does not include any information:
(a) that is independently developed, obtained or known by a party, without any obligation of
confidence to the other party; or
(b) that is in the public domain, except where due to a breach of this Agreement or any breach of
any obligation of confidence.
(c) that the client must provide original content and images to be used in the website and cannot
take legal action or hold Lead Generator X liable for or hold Lead Generator X accountable
for duplicate/copywritten/proprietary/trademarked content or copy
16. Termination
16.1 Either Party may terminate this Agreement at any time by giving at least 20 Business Days’
notice in
writing to the other Party.
16.2 Either party may terminate this Agreement if the other party (the “Defaulting Party”) is in
material
breach of this Agreement and the breach is not capable of remedy, or where the breach is capable of
remedy and the Defaulting Party fails to remedy the breach within thirty (30) days of notice.
16.3 Either party may terminate this Agreement by notice to the other party if the other party
suffers an
Insolvency Event.
16.4 If this Agreement is terminated:
(a)Lead Generator X must, at the option of the Client, destroy or return all Confidential
Information of the
Client to the Client;
(b) the Licence granted by Lead Generator X under this Agreement will immediately and
automatically terminate
and the Client must, at the option of Lead Generator X, promptly destroy or return all
Confidential
Information of Lead Generator X to Lead Generator X, and must immediately cease using the
Lead Generator Xand the Website.
16.5 Termination does not affect any accrued rights of either party.
17. Notices
17.1 A notice under this Agreement shall be sent by hand delivery, post or email, using the address
specified at the top of the first page of this Agreement or the email address for the recipient’s
representative specified in Part A.
17.2 Any notice issued by hand shall be deemed delivered upon delivery.
17.3 Any notice issued by post shall be deemed delivered 3 Business Days after posting if posted
domestically, or 10 Business Days after posting if posted internationally.
17.4 Any notice issued via email shall be deemed to be delivered upon the email being sent,
provided that
if an email is sent out of Business Hours, it shall be deemed to be delivered at 9am on the next
business day.
18. Dispute Resolution
18.1 If a dispute arises out of, or in any way in connection with, or otherwise relates to this
Agreement, or
the breach, termination, validity or subject matter hereof, or as to any related claim at law, in equity
or pursuant to any statute, the parties agree to refer their dispute to Mediation administered by the
Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation.
18.2 The Mediation shall be conducted in Sydney in accordance with the ACDC Guidelines for
Commercial
Mediation which are operating at the time the dispute is referred to ACDC and which terms are
hereby deemed incorporated into this Agreement.
18.3 The costs of the mediator shall be shared equally between the parties.
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18.4 Nothing in this clause shall limit either party’s right to seek urgent interlocutory relief from any
court
of competent jurisdiction at any time.
19. General
19.1 Amendment: Lead Generator X may amend these terms and conditions from time to time.
Lead Generator X will endeavour to
provide written notice, and the current terms will be displayed at www.jcs.com.au/termsandconditions.
19.2 Assignment: If there is a change of control of our business or a sale or transfer of business
assets, we
reserve the right to transfer to the extent permissible at law, this Agreement and all of Lead Generator X’ rights and
obligations under this Agreement. The Client may not assign, transfer, licence or novate its rights or
obligations under this Agreement without the prior written consent of Lead Generator X
19.3 Severability: If any provision of this Agreement is deemed invalid by a court of competent
jurisdiction, the remainder of this Agreement shall remain enforceable.
19.4 Relationship: The parties are independent contractors and this Agreement does not create any
relationship of partnership, joint venture, or employer and employee or otherwise.
19.5 Australian Consumer Law: The exclusions and limitations of liability set out in this Agreement
shall apply to the fullest extent permissible at law, but the parties do not exclude or limit liability which
may not be excluded or limited by law. Without limiting the foregoing provisions, Lead Generator X does not
exclude liability under the Australian Consumer Law which is prohibited from being excluded. The
parties acknowledge and agree that the limitations and exclusions of liability contained in this
Agreement constitute an allocation of risks that form part of the negotiated commercial terms of
this Agreement.
19.6 Entire Agreement: This Agreement constitutes the entire agreement between the parties and
to the extent possible by law, supersedes all prior understandings, representations, arrangements and
agreements between the parties regarding its subject matter.
19.7 Jurisdiction: This Agreement will be interpreted in accordance with the laws in force in
Queensland. The parties irrevocably submit to the exclusive jurisdiction of the courts situated in
Queensland