These are the Terms and Conditions on which The 738 Agency ABN: 56 604 066 864 (738 Pty Ltd) will carry out work for you. They will apply each time that you ask us to do work for you, or carry out a Service. They set out our Services and what you can expect from us. Please read them carefully. It is a condition of your use of our Services that you comply with these Terms and Conditions.
These Terms and Conditions are subject to change without notice and may be superseded. The 738 Agency may modify these Terms and Conditions by general notice on a page of our website, by email or by any other method of communication.
You may engage us to carry out a Service for you by:
• Paying for your first invoice; or
• In the case of smaller engagements by written verification.
Unless The 738 Agency notify you otherwise, The 738 Agency will accept that engagement, subject to these Terms and Conditions. The Service will commence in line with the Service schedule or when The 738 Agency accept the engagement.
2. CUSTOMISED QUOTE
If The 738 Agency provides you with a Customised Quote that is outside of the set standard web packages or other services, a Customised Quote:
• Is based on the web specifications, third-party plugins or customised design, modifications that are specific to the clients’ requirements that need to be custom quoted and is subject to change if the parties agree to amend the Specifications before proceeding ahead;
• Is based on add-ons, bundling other digital services or additional requirements that are specific to the clients’ requirements that need to be custom quoted and is subject to change if the parties agree to amend the Specifications before proceeding ahead;
• and is valid for a period of 30 days from the date The 738 Agency issue the Customised Quote, unless otherwise agreed by The 738 Agency.
3. PRICING, CUSTOMISED DIGITAL BUNDLE RETAINERS AND PACKAGES
The 738 Agency have a range of limited-time offers for web, social and other packages that are advertised via Facebook, Google, TikTok and other advertising platforms from time-to-time and set packages on The 738 Agency website. Each package provides specific inclusions. Should you require additionals on top of any of the packages, this will incur an additional charge. Please see our Variations and Additional Costs section.
When it comes to our Customised Digital Bundle Retainers which combine multiple services per month for a specific duration and period (e.g. 3 months, 6 months or 12 months).
Customised Digital Bundle Retainers require payment in advance per month. Each Customised Digital Bundle Retainer has a minimum (e.g. 3 months, 6 months or 12 months duration), with a further option to renew the Customised Digital Bundle Retainer for a set specific duration and period. Pricing for the Customised Digital Bundle Retainers remains fixed for the duration of the contract. The contract will automatically renew for subsequent periods of the same duration. If the Client chooses not to extend the contract (3 month, 6 month or 12 month contract), they must provide written notice terminating the agreement 30 days prior to the expiration of the contract term. Once the email has been received, you’ll receive a return email confirming along with a final invoice for the additional 30 days which is payable once this is sent. We will continue to take care of your acccounts, campaigns for 30 days and once concluded we will provide you with the monthly report and any other requirements that were worked on during this final period.
OUT OF SCOPE – WORKS NOT INCLUDED IN CUSTOMISED DIGITAL BUNDLES RETAINERS
From time-to-time particular works may be excluded from your agreed Customised Digital Bundle Retainer and these additional works would be billed separately.
WHITE LABEL SOLUTIONS
We offer white label solutions (agencies/consultants) and these solutions, packages and offerings are subject to a seperate agreement with pricing to be advised on each specific package or offering.
CANCELLATION OF CUSTOMISED DIGITAL BUNDLE RETAINER
Our Customised Digital Bundle Retainers require that if you decide to cancel the package at any time during the period, you’ll be required to pay out the remaining retainer in full. Cancellation only applies when provided a written notice via email terminating the agreement 30 days prior to the expiration of the contract term. Once the email has been received, you’ll receive a return email confirming along with a final invoice for the additional 30 days which is payable once this is sent. We will continue to take care of your acccounts, campaigns for 30 days and once concluded we will provide you with the monthly report and any other requirements that were worked on during this final period.
The Services that The 738 Agency provide to you, and any specific terms, may include some or all of the following but not limited to:
• Web Design;
• Graphic Design;
• Social Media Service;
• Facebook Advertising;
• Google Advertising;
• TikTok Advertising;
• Specialised Packages;
• Social Media Management (Socials – Facebook, Instagram, TikTok Google My Profile);
• Custom Website Design and Development;
• Premium Template Solution Website Design and Development;
• Premium Template Solution eCommerce Design and Development;
• Video and Video Marketing;
• Digital Marketing Services;
• SEO – Search Engine Optimisation Service;
• Third Party Software;
• Support & Maintenance Packages;
• Domain Name Services;
• Email Marketing;
• Strategy and Analytics;
• Customised Digital Bundle Retainers (combined services per month for a specific duration).
You acknowledge that electronic services are subject to interruption and breakdown and all non-electronic services are subject to disruption, and therefore:
• The Services will not be error-free or uninterrupted;
• and your access to the Service and the operation of the Service will not be error-free or uninterrupted;
• The 738 Agency reserves the right to continue to provide the Services and/or invoice you for the Services in the event of any disruption, other than a disruption caused by The 738 Agency’s negligence or wilful acts or omissions.
5. PACKAGES ON THE WEBSITE | CUSTOM BUNDLES PACKAGES | CONTRACT
Packages listed on the website (Social Plans, Video Plans, SEO Plans) are a monthly cost and are paid in advance with subsequent payments due on the same date of the proceeding month as the initial payment.
From time to time custom bundled packages may be created that combine multiple services in social, advertising or SEO. These may be advertised outside of the website and may be offered for a limited time. Custom bundled packages follow a monthly payment in advance, with subsequent payments due on the same date of the proceeding month as the initial payment. Some custom bundled packages may require a minimum of 3 months contract.
All packages (Social Plans, Video Plans, SEO Plans) require a monthly payment in advance, with subsequent payments due on the same date of the preceding month as the initial payment.
All packages (Social Plans) require a minimum 3 months contract. If the Client chooses not to extend the contract, they must provide written notice via email terminating the agreement 30 days prior to the expiration of the contract term. If there is no written notice, the minimum term will automatically renew for the subsequent periods of the same duration. Should the Client not provide a written notice after the 30 days prior to the expiration of the contact term, and the Client doesn’t want to continue on a further 3 month contract, the Client will be invoiced for the final month (30 days).
If the Client is on a contract (6 or 12 months for Social Plans) and the Client chooses not to extend the contract, they must provide written notice via email terminating the agreement 30 days prior to the expiration of the contract term. If there is no written notice, the contract term the Client was originally on will automatically renew for the subsequent periods of the same duration. Should the Client not provide a written notice after the 30 days prior to the expiration of the contract term, and the Client doesn’t want to continue on a further on the 6 or 12 month contract, the Client will be invoiced for the final 2 months (60 days).
Digital Marketing Campaigns run for a discrete calendar month, Campaigns that start mid-month may have their monthly budget accelerated or stretched to be used by the end of that discrete calendar month though it will be dependant on what how the campaign is going in any given month.
Our Video Plans and SEO Plans are a month to month or you can go onto a 3, 6, or 12-month contract. The pricing for the package remains fixed for the duration of the contract or in the case of month to month the price remains the same as long as the client remains on the package as pricing for packages is subject to change. If the Client chooses not to extend the monthly or minimum contract, they must provide written notice via email terminating the agreement 30 days prior to the expiration of the contract term. If there is no written notice, the monthly or minimum term will automatically renew for the subsequent periods of the same duration. Should the Client not provide a written notice after the 30 days prior to the expiration of the contact term, and the Client doesn’t want to continue further, the Client will be invoiced for the final month (30 days).
For all SEO Plans, the Client must be on a minimum of 6 months.
All Social Media Packages do not include advertising spend for Facebook, Instagram or TikTok. This is a third party cost and the client must pay for advertising spend separately. All advertising spend will be invoiced separately and payable prior to the campaign/s starting. All FB ad campaigns are set up via 738 Meta Business Manager and the Client does not have access to the account. Client will receive a monthly report.
All Web Plans listed on the website require a 50% upfront to start the project with the remaining 50% balance to be paid upon completion before the site goes live.
6. FACEBOOK DISCLAIMER
738 Pty Ltd and its website is not associated with Facebook. This website is not part of the Facebook website or Facebook Inc. Additionally, this site is not endorsed by Facebook in any way. Facebook is a trademark of Facebook, Inc.
7. GOOGLE DISCLAIMER
We use Google re-marketing pixels/cookies on this site to re-communicate with people who visit our site and ensure that we are able to reach them in the future with relevant messages and information. Google shows our ads across third party sites across the internet to help communicate our message and reach the right people who have shown interest in our information in the past.
8. GOOGLE ADWORDS AND PAY PER CLICK (PPC) SEARCH ENGINE ADVERTISING
Upon your request, we agree to provide you with a management service of a Google AdWords account in accordance with the package purchased that 738 Agency has provided to you, a proposal, a package that is listed on the website or a special offer that has been advertised through our own Facebook Ads or Google Ads. • For the purpose of providing this service, you authorise us to create a Google AdWords account on his/ her/its behalf, including but not limited to Google Analytics. • We will build the Google AdWords account in our own ‘My Clients Centre’ (herein referred to as “MCC”), and will own all data associated with it. You acknowledge that Google AdWords is subject to Google’s Terms and Conditions. • We are not liable if your Google AdWords account or campaigns are rejected by Google. • You acknowledge that we cannot guarantee that Google AdWords will generate any increase in sales or business activity, and you will not hold us liable for any loss or damage arising from the Google AdWords management.• During the Google AdWords management term, you will not have direct access to the AdWords portal or MCC.
9. FACEBOOK SERVICES
Upon your request, we agree to promote your business on Facebook in accordance with the package purchased that 738 Agency has provided to you, a proposal, a package that is listed on the website or a special offer that has been advertised through our own Facebook Ads or Google Ads. You acknowledge that any Facebook advertisement is subject to Facebook’s terms and conditions and Facebook reserves the right to refuse an advertisement at any time, for any reason. If such circumstances arise, this does not affect your liability to pay our fees. You acknowledge that we make no warranty or guarantee that Facebook advertising will generate any increase in sales, leads or business activity and you will not hold us liable for any loss or damage arising from the Facebook advertisement. You acknowledge you are fully responsible for the payment of invoices generated by Facebook for pay-per-click fees. In the event that a Facebook invoice is unpaid, the campaign will cease until the invoice/s is/are paid. In such circumstances, our management fee will continue to be charged and there will be no refunds or credits.
10. TIKTOK SERVICES
• Upon your request, we agree to promote your business on TikTok in accordance with the Custom Bundles Digital Retainer that 738 Agency has provided to you, a proposal, a package that is listed on the website or a special offer that has been advertised through our own Facebook Ads or Google Ads.
• You acknowledge that any TikTok advertisement is subject to TikTok’s terms and conditions and TikTok reserves the right to refuse an advertisement at any time, for any reason. If such circumstances arise, this does not affect your liability to pay our fees. You acknowledge that we makes no warranty or guarantee that TikTok advertising will generate any increase in sales or business activity and you will not hold us liable for any loss or damage arising from TikTok Advertisement.
• You acknowledge you are fully responsible for payment of invoices generated by TikTok for pay-per-click fees. In the event that a TikTok invoice is unpaid, the campaign will cease until the invoice/s is/are paid. In such circumstances, our management fee will continue to be charged and there will be no refunds or credits.
11. All SOCIAL MEDIA PACKAGES
All social media packages in the first month require approx 2 weeks (dependant on how quickly the Client comes back on all requirements) to develop the strategy, social organic posts (creatives/content), FB ad (creatives/content), technical set-up requirements but not limited to e.g. server-side tracking, Facebook Pixel, events tracking and checking the overall website CRO (if doing conversion ads) and receiving all logins and requirements we need so that we can have everything ready to launch. Should other requirements need to be done e.g. creating a landing page for the campaign (this would be at an additional cost) or any other items outside of the All Social Media Packages this may push the timeframe. Once sign-off has been received for your first month of FB creatives/content, social organic posts (creative/content) and sign-off on the strategy going forward, your first month will have 1 or 2 weeks of management and optimisation and then from there 738 will continue to optimise your campaign/s followed by working on your new month of socials. Each month we will continue to run/optimise your FB campaign/s and develop new social organic posts along with providing monthly reporting and regular updates.
12. STARTER PACKAGE PLAN | PRO PACKAGE PLAN | MARKETING PRO PLAN
All 738 plans (Starter Package Plan, Pro Package Plan and Marketing Pro Plan, include unlimited requests, unlimited revisions, and Adobe/Canva files.
12.1 STARTER PACKAGE PLAN $995 + GST
Starter Package is the perfect starter plan for your graphic design needs. This plan is ideal for businesses that need a steady flow of graphics for print and digital media, whether for social ads or other graphic requirements as per our list.
* Social Media Posts & Ads (Excludes Media Buying)
* Email Graphics (EDM)
* Logos & Branding
* Business Cards
* Packaging & Labels
* Point Of Sale Materials
* Pitch Presentation Decks
* Brand Guides
* Trade Show Banners
* Blog Graphics
* Magazine Layouts
* Business Reports
* Display Ads
* E-commerce Graphics
* Event Invitations
* Flyers & Posters
* Print Ads
* Mailers & Post Cards
* Promotional Materials
* Vehicle Wraps
* Landing Pages Landing Pages Package (Includes Hosting and Elements Pro Subscription for One Year. Charges apply only for hosting and the annual Elements Pro subscription if discontinued. Other subscriptions will not affect landing pages unless specifically mentioned; corresponding features will be disabled.)
Note: Starter Package Plan option does not include additional requests. Only two request per month apply.
12.2 PRO PACKAGE PLAN $1395 + GST
Pro Package Plan is our most popular plans. This includes everything in the Starter Package where you can choose the items you wish to create in a given month plus you can also choose from the following below:
* Video Post Production
* Motion Design
Note: Pro Package Plan option does not include additional requests. Only two request per month apply.
12.3 MARKETING PRO PLAN $1795 + GST
Marketing Pro Plan is the all-inclusive package. You can choose up to four requests which includes items from the other two packages Starter Package Plan and Pro Package Plan. This plan is ideal for those who require marketing and also other services e.g. design or video services.
* Facebook and Instagram Marketing (Ad Creatives, Copywrting, Media Buying and Optimisation) (Excludes third-party ad fees)
* PPC Marketing (Excludes third-party ad fees)
* TikTok Marketing (Excludes third-party ad fees)
* Digital Marketing Consulting (per hour is considered 1 request)
Note: If you exceed four requests within a month, each additional request will incur an extra charge of $300 plus GST. Running campaigns for the entire month or beyond will be treated as an ongoing request, counting towards your monthly limit.
* All plans include an unlimited queue, unlimited revisions and Adobe/ Canvas source files. though. If the revisions fall outside of that paid month it is rolled over it the following month (provided that the following has been paid.
* Starter Package Plan and Pro Package Plan is two request at a time. Marketing Premium Plan up to four requests at a time.
* Average 2-4 business days delivery: (4-5 business days for more complex designs);
* Unlimited brands (for agencies or companies that have more than one brand or product);
* Unlimited users (invite your team);
* Unlimited stock library photos;
* Onboarding call with our strategist (30 mins chat on the phone);
* Project Management (easy-to-use Video & Graphic Design Review Platform);
* Slack Collaboration (chat directly with project manager);
* Pause or cancel monthly plans anytime.
12.5 USE OF OUR SERVICES
You may use the Services for numerous projects within the subscribed plan’s scope and in accordance with the package plan. Although we welcome an unlimited number of requests for Deliverables and revisions, our productivity is influenced by various factors, including the overall request volume and complexity. If revisions roll over to the following month and that month is not paid, all revisions will cease and will not be completed until payment for that month has been paid.
While we strive to collaborate with you to address priority items and meet your timelines, we advise against utilising our Services for time-sensitive projects.While we make every effort to minimise errors in the final Deliverables, the nature of creative design prevents us from guaranteeing 100% error-free outcomes. Upon receiving a file, it is your responsibility to review and proof all content for errors or omissions. Please notify us of any necessary changes or corrections within seven (3) days of receipt. We will prioritise prompt edits to rectify any mistakes you identify during this period. If you report errors after this timeframe, we are not required to make corrections, but we intend to collaborate with you to address any corrections.
Your account’s processing speed is determined by the number of plans you have. A plan serves as a measurement for output, reflecting what our team and software can achieve in 2 business days. On average, most requests are completed in 2-4 business days. However for more complex requests this can take longer. You can maximise your plan by keeping your queue nice and full, or choose to have more than one plan to increase your daily design output.
12.6 WHAT WE DON’T COVER
We don’t cover the following design work: AR/3D modelling, Illustration designs and web design.
This is a monthly service which is payable in advance per month. All fees are due upon receipt of invoice. We reserve the right to suspend or terminate your account in the event you fail to pay amounts owed to us when due.
You may cancel your subscription with us at any time directly by contact us. If you cancel your plan before the next renewal cycle, you can continue using your account and accessing your design files until the end of your paid billing term. When your plan expires, you will no longer have access to our Services and all design files associated with those Services. We do not provide refunds or credits for partial months of service, downgrades, or unused time.
Prices and packages are subject to change.
12.7 SHOWCASING DESIGN WORK
738 Pty Ltd reserves to right to share design work on digital channels including social media, website and promotions. If you’re a white label client e.g. agency we do not share the work across digital channels.
13. HOURS OF SERVICE
All Services will be carried out between 9:00 am and 5:00 pm (local office time), Monday to Friday excluding public holidays and the Christmas / New Year closure periods; unless specifically included as a paid additional service.
14. STAGED APPROACH AND METHODOLOGY
For most Projects (social, web, SEO and advertising) we have a staged approach for planning and implementation along with our own methology of how we take care of each service/s when working on a clients requirements. This will be discussed with you in detail during our engagement of the service/s/package you’ve purchased.
15. PROJECT MANAGEMENT
The 738 Agency will provide specific allotted hours of project management in order to deliver this service within a set project timeframe. The primary contact for the delivery of this service will be The 738 Agency project manager, assigned by The 738 Agency.
All correspondence for the delivery of the stages of the project or scoped services will be to and with the assigned project manager and be provided through The 738 Agency assigned project management system. The assigned system will deliver tasks to and from the client through emails. The system provides the client access to their project enabling them to respond to each milestone and corresponding within The 738 Agency Project Management Tool, allowing easy access to all information for the client and the project team. There is also a Ticket Support for the client to respond to any updates or issues they have for their project.
This Project Management platform’s correspondence feature is mandatory for every project engaging The 738 Agency to ensure the timely delivery of projects, an approval system for stages and projects delivered to budget. Once the project has been discussed, The 738 Agency will set up the project in the system and send out an auto email to the client. This will enable the client to set up their own unique password to gain access to the project through The 738 Agency Project Management platform.
16. CONTENT AND MATERIALS SUPPLIED BY YOU
You must supply to The 738 Agency all required materials you want us to use in the Service, and all other content and materials The 738 Agency reasonably request (Client Content) in a timely manner.
You must supply all Client Content Assets and any other digital format/s and requirements we need to take care of the service/s you’ve engaged us with.
• Text/Copy: Microsoft Word, Google Docs or Rich Text (clearly labelled and in correct order);
• Tables: Microsoft Excel, Google Sheets (clearly labelled and in correct order);
• Images: High resolution where possible (JPEG, PNG files);
• Logos: Vector format (Illustrator EPS/AI);
• Diagrams/Maps: Vector format (AI) or (JPEG files);
• If required, access to your current website and database via SSH, FTP and/or CMS/hosting control panel login;
• If required, access to your domain name/s login;
• If required, access to your hosting/server and cPanel login;
• If required, access to your Facebook, Google Ads or TikTok login;
• If required, access to your Google Account;
• Brand Style Guidelines (if applicable).
The 738 Agency may charge additional costs if the (Client Content or any other digital format/s or requirements) is not provided in the appropriate format — appropriately named or filed in Google Drive, or if the materials or logins are not supplied when requested.
You warrant that the materials or content you provide to us, or that are provided to us on your behalf, will not: breach any rights (including Intellectual Property Rights or Moral Rights) of any third party; or compromise the security or operation of our computer systems, through a virus or otherwise.
17. VARIATIONS AND ADDITIONAL COSTS
If during the course of our engagement there are changes in the Specifications of the Service, the changes will be treated as a Variation.
Where a Variation occurs, The 738 Agency reserves the right to halt work and review the Service costings. The 738 Agency will discuss the Variation with you and where required will issue a Variation Notice which is to include the modifications to the Specifications and any associated costs. The 738 Agency will not proceed with the Services until The 738 Agency receives your written approval to proceed.
Examples of Variations but not limited to include:
• Changes in the Specifications during the design stage i.e. additional pages requiring design, additional design elements/features, template modifications outside of the package etc.;
• Additional pages, features, functionality etc. required / introduced in the development stage;
• Customisation of the CMS or building an extension not specified in the approved design,
• Specifications or database schema/architecture;
• Additional project management time;
• Adding additional services or upgrading existing services on an existing Customised Digital Bundle Retainer or package listed on our website or a special bundled offer you’ve originally come through on via our Facebook Ads or Google Ads;
• Introduction of additional requirements not discussed during the initial workshop;
• Costs for commercial fonts, photography, audio and video;
• Additional Service management time;
• Unplanned delays in obtaining approval, (Client Content) or feedback resulting in The 738 Agency;
• Having to reschedule services, staff or facilitate continuance;
• Overtime required to meet deadlines due to delays by the Client providing approval, (Client Content) or feedback;
• Development work not specified within the original scope.
It is our process to include Service management time in all quotes, but from time-to-time, The 738 Agency are required to not only manage The 738 Agency team but also manage your team. This is generally not known at the time of quoting and may be treated as a Variation.
If during the course of our engagement there are small changes in the Service, The 738 Agency will contact you and provide an estimate of the Additional Costs for these small changes.
The 738 Agency will obtain approval from you prior to undertaking the additional work. Additional Costs will be invoiced separately to the Client on an ad hoc basis, charged at current Professional Hourly Rates.
Examples of Additional Costs include but not limited to:
• Content not in the appropriate format;
• Extra requirements needed on top of a current digital bundle retainer or a pre-set package;
• Extra workshops or workshops requiring additional hours; requested additional design concepts / alternatives; requested changes to the design after final approval has been requested or provided;
• Uploading and styling/layout of additional (Client Content);
• Additional meetings and travel time. Modifying the chosen template and adding further customisation to it require extra content to be written for socials, blog, web or other formats.
18. PURCHASE OF STOCK IMAGES, FONTS, PHOTOGRAPHY, AUDIO OR VIDEO
Unless specified in your package, the Fees do not include any searches or purchase of stock images, commercial fonts, photography, audio or video.
You can provide stock images, commercial fonts, audio or video, or The 738 Agency can purchase them on your behalf. When any stock images or commercial fonts are purchased on your behalf, The 738 Agency will be the license holder and the image or font can only be used under the terms of the license/s.
You indemnify, and agree to keep The 738 Agency , its directors, officers and employees indemnified, against all Loss arising out of the breach of these licenses. Standard stock images will be charged according to our current stock image rates. Costing for any font, photography, audio or video required will be provided for approval separately via a Variation Notice.
Ownership of the finished photography, audio or video will be transferred to you upon full payment of all issued invoices. The 738 Agency retains ownership of all working files.
19. YOUR APPROVAL AND INTERPRETATION
Your approval and implementation may be required for a number of items (Approval & Implementation Item) presented to you depending on what service you’ve chosen but not limited to web, social, advertising creatives and content, branding, article/web/social content:
• Website/social brief;
• Social content and creative design;
• Sitemap review;
• Social Strategy;
• Social Competitive Analysis;
• Wireframe review;
• Choosing a premium template theme (and your choice of one of them);
• Each updated version of the chosen design concept;
• Landing page or website development;
• Completed designs;
• Variation Notices; and
• Any other item for which The 738 Agency requests your approval on a particular bundle, package, special offer you’re on or customised bundle retainer that you’re on.
When The 738 Agency provides you with a timeline for the work that is being conducted, you will be deemed to have accepted the timeline.
When The 738 Agency provides you with any Approval Item, you must notify us via email on whether you do or do not accept the completed Approval Item. Your acceptance of the completed Approval Item means that the Approval Item is complete, and no further amendments are necessary.
However, The 738 Agency will not proceed to the next Stage of the Service until The 738 Agency receives your approval to proceed.
There may be Additional Costs in having to reschedule services, staff or facilitate continuance due to unplanned delays in obtaining approval. If unable to perform continuance, the Client may have to pay a shutdown and subsequent restart fee commensurate to the labour and resource costs incurred.
20. SCHEDULING, PRODUCTION AND PROJECT MANAGEMENT
If The 738 Agency consider it to be necessary, The 738 Agency will develop a production schedule for the Services. The 738 Agency will use reasonable commercial endeavours to carry out the Services in accordance with that schedule.
If you delay in providing the approval, implementation, (Client Content) or feedback that The 738 Agency require, then this may result in:
• A change in the delivery deadline set out in the production schedule; or
• If the delivery deadline cannot be changed, a Variation Notice will be issued, including necessary overtime costs.
21. CASE STUDIES, MARKETING MATERIALS AND PROMOS
738 Agency uses case studies, marketing materials and the like to promote products/services that 738 Agency uses to showcase potential clients, tenders, proposals.
Our consultancy services may include:
• Researching and developing a tailored strategy, researching plugins or other customised requirements, campaign planning and implementation, current system review and analysis;
• Audits, workshops and other requirements that may not be required in the initial package or scope of works.
Our development/technology services will be derived from our limited web package offers, set web packages on our website or a Customised Quote that may include the technical specifications, and final deliverables from discovery and design stages.
Unless otherwise specified in Customised Quote, our services do not include customisation of the CMS (WordPress), or any other CMS platform its extensions, plugins or components.
Any customisation required:
• The work will be a Variation;
• The customisation, extension, plugin or component remains licensed under the original author or The 738 Agency; and
• You accept and must comply with the CMS terms and conditions in relation to your use of the customisation extension, plugin or component.
You acknowledge that the CMS and many of its extensions, plugins and components are provided by third parties, and therefore:
• We have limited control over the functionality or operation of the CMS and its extensions etc; and;
• You accept and must comply with the terms and conditions of those third parties relating to the CMS.
Unless otherwise specified in the customised quote or as agreed in writing with The 738 Agency, The 738 Agency retains ownership of the IP of any custom applications.
You acknowledge that:
• The 738 Agency is free to reuse any code, inventions, extensions, plugins or components and you grant The 738 Agency an indefinite perpetual licence to use, resell and modify.
• Ownership of the finished deliverable will be transferred to you upon full payment of all issued invoices.
• The 738 Agency retains ownership of all working files.
• Unless otherwise agreed for all apps being uploaded to an app store (iTunes, PlayStore, Windows App Store), The 738 Agency will be listed as the “developer”. If in the event the Client wishes to be the “developer” with their own account, the costs to action such transfer will be an Additional Cost.
You acknowledge that:
• The Software that is developed by The 738 Agency may run on third-party platforms, Software and environments and therefore if any of these third-party platforms, Software or environments make an update or discontinue this may cause your Software to breakdown, be interrupted or not operate at full functionality.
Our maintenance services consist of making modifications / updates based on the Customised Quote, brief and/or Specifications.
Unless otherwise specified in the Customised Quote, the Fees for modification do not include any provision for training or post-implementation support or warranty.
25. THIRD-PARTY SOFTWARE
As part of a Project we may provide Third-Party Software as part of the Project.
You acknowledge that:
• We have limited control over the functionality or operation of the Third-Party Software;
• If the third parties provide data or other information for use with the Software, we have no control over the accuracy or completeness of that information;
• You accept and must comply with the terms and conditions of the Third-Party Software providers and;
• Those Third-Party Software providers may invoice you directly for ongoing costs relating to your use of the Software;
• The Fees for the Third-Party Software may change from time to time.
The Customised Quote, limited-time offered web packages or the set web packages on our website may include training sessions of varying length, content and outcomes. Training sessions will be conducted via Zoom. If additional training sessions are required, or you wish to have additional attendees at a training session, or require training at your office, there may be an Additional Cost.
27. 30 DAY SUPPORT (ON ALL WEBSITE PROJECTS)
The 738 Agency will provide a 30 Day Support proceeding the date of website completion and the site has gone live (as stated by email to the customer) in which bugs and defects presented to The 738 Agency will be repaired during the 30 days at no charge. It’s your responsibility to review and test the site and ensure you’re satisfied with it during testing and warranty period.
During the 30 days, the customer may not alter, change or add to the website, modify code or have an outside developer/s interfere with the websites framework, plugins and functionality of the website. Doing so, The 738 Agency will waive its 30 Day Support period as the client has breached the 30 day Support terms. If issues arise should the website not be functioning due to this breach, the customer will be charged on a Professional Hourly Rate to fix this issue/s.
Once the 30 day term expires, The 738 Agency will not be liable for any bugs or defects that present themselves or are otherwise missed by the customer.
Any modifications that are not defined as a bug for the purposes of this 30 Day Support will be quoted for separately as a Customised Quote on an hourly rate of $120 + GST. Any bugs that fall outside the 30 Day Support period will be quoted separately as a Customised Quote on an hourly rate of $120 + GST.
When open source Software, such as WordPress, Magento, Shopify, MySQL, PHP, Apache, Third-Party Plugins or Template Themes, is used to build and host website, we can’t guarantee that these open source Software products are error-free. Any word required to address bugs, version or system updates, are not included under the Warranty and will be quoted separately as a Customised Quote on an hourly rate of $120 + GST.
Any bug fixes or changes required as a result of upgrades to mobile operating systems like iOS, Android or Windows or Browsers, are not included under the 30 Day Support and will be quoted for separately as a Customised Quote on an hourly rate of $120 + GST.
Any server related issues, themes, templates, CMS, security that is used to build the website or the site is running on, we can’t guarantee that these open source and other Software products are error-free. Any work required to address bugs, security issues, speed and other related server issues, are not included under the Warranty and will be quoted separately as a Customised Quote on an hourly rate of $120 + GST.
28. WEB MAINTENANCE PACKAGES
Web Maintenance Packages are a paid service.
Our support services consist of, but are not limited to:
• Answering your technical questions relating to the Software, its operation and the Content Management System and the extensions, plugins or components provided with it and;
• Resolving technical issues that arise in relation to the Software or its operation, except as set out above.
Our web maintenance services may consist of, but are not limited to:
• Website backup;
• Hosting or server related issues CMS updates;
• Plug-in updates; hosting space increases;
• General content updates;
Our support and maintenance services do not include resolving:
• Issues that relate to your networks, server, email, computer systems or Software;
• Other technical issues not arising directly from the Software.
You may be required to provide to us, at your own cost, access to the Software and your computer network and any systems required in order for us to provide the support and web maintenance services. If you do not provide us with such access within a reasonable time after we request it, then:
• We are not obliged to provide you with any support or web maintenance services; and
• We are not obliged to return to you any portion of the Fees that you have paid to us for the provision of the web maintenance service.
Work undertaken outside of a Web Maintenance Packages will be charged at our current Professional Hourly Rates.
Web Maintenance Packages are not designed for design updates, technology or development. This type of work is considered a Customised Quote and quotes in estimated hours of completion at $120 + GST per hour.
Estimated time to complete requested web maintenance tasks may be provided when, and if possible, at Client’s request. Commencement of support tasks will start upon receipt of written support brief/request, confirmation of time estimate provided (where required and possible) and availability of hours on a Web Maintenance Package.
Web Maintenance Package activities are limited to Software and Services. Unused Web Maintenance Packages will not be refunded.
Options are as follows:
PAYG: $120 + GST (per hour).
ONGOING WEB MAINTENANCE PACKAGE: This is custom quoted depending on the website build and requirements. This will be advised on what the costs will be per month.
PAYG: 738 Agency will assess the requirements that you need and advise the amount of hours it will take to complete your request. An invoice will be issued out and it must be paid in advance before commencement of the work.
Ongoing Web Maintenance Package: This will be set up as a recurring monthly billing. Each invoice require payment in advance per month. Should the CIient choose not be on a monthly web maintenance package to update security, theme or plugins and therefore an issue/s arise, an hourly rate of $120 + GST (per hour) will apply to rectify the issues.
All unused hours in the PAYG and Ongoing Web Maintenance Package will not be rolled over into the next month and will expire at the end of the month.
The 738 Agency will recommend hosting services from time-to-time. Uploading of the template, configuration, implementation and work will take place on the established web hosting. Hosting is a third-party cost and it’s not included in the Customised Quote or limited-time offer web packages. All hosting server related issues, errors or other unforeseen issues fall under our Support & Maintenance Package.
30. DOMAIN NAME SERVICES
The 738 Agency does not represent or warrant the availability, suitability or registerability of any domain name.
The 738 Agency will not, at any time, assume any liability whatsoever in respect of the use of any domain name. Any disputes arising must be resolved between the parties involved.
You must provide us with login access to your domain name when we require to change the DNS details to link your domain name to your new hosting so that your website can appear live on its new hosting environment. You must not transfer a domain name to another provider or make any changes on the domain name during the course of working on your website project or during the 30 day warranty term.
31. WARRANTY DISCLAIMER
Nothing in this Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition implied or imposed by legislation which cannot be lawfully excluded or limited. Such legislation includes the Australian Consumer Law which contains guarantees that protect the purchasers of goods and services in certain circumstances, each a non-excludable provision.
Subject to The 738 Agency’s obligations under the non-excludable provisions, and to the fullest extent permissible by law, The 738 Agency expressly disclaims all warranties and representations of any kind with respect to the Services whether express, implied, statutory, or arising out of the course of performance, course of dealing or usage of trade including any warranties or merchantability, fitness for a particular purpose, satisfactory quality, accuracy, title or non-infringement.
32. LIMITATION OF LIABILITY AND WARRANTY
To the fullest extent permissible by law, The 738 Agency is not liable (whether in contract or tort) for:
• Faults or defects in any services or goods provided by third-parties in connection with this agreement; or
• Any indirect, special or consequential loss (including loss or corruption of data, loss of profits, revenue, goodwill, anticipated savings and business interruption) however arising, whether or not The 738 Agency knew of the possibility of such loss and whether or not such loss was foreseeable.
To the fullest extent permissible by law, in no event will The 738 Agency’s liability in contract, tort (including negligence and breach of statutory duty) or otherwise arising out of, or in connection with, this agreement exceed the amounts actually paid by the Client to The 738 Agency for the Service;
The 738 Agency makes no warranties regarding the likelihood of success of marketing or promotional activity undertaken pursuant to the agreement.
To the fullest extent permitted by law, the liability of The 738 Agency for a breach of a non-excludable condition is limited to: in the case of the provision of services:
• The supplying of the services again; or
• Payment of the cost of having the services supplied again.
In relation to goods:
• The replacement of the goods or the supply of equivalent goods;
• The payment of the cost of replacing the goods or acquiring equivalent goods; or,
• The repair of the goods or the payment of the cost of having the goods repaired.
To the full extent permitted by law, The 738 Agency excludes all:
• Liability for the infringement of the Intellectual Property rights of any third party arising from any of the material or content published during the performance of the Services;
• Liability for misrepresentation or negligence arising from detrimental reliance on any of the material or content published in accordance with the performance of the Services. It is your responsibility to thoroughly check and gain independent expert advice on the suitability or correctness of the material to be published as part of the performance of the Services;
• Liability in respect of loss of data, breach of our security, interruption of business or any consequential or incidental damages; all representations, warranties or terms (whether express or implied) other than those expressly set out in the agreement.
The 738 Agency’s total aggregate liability for all claims relating to the agreement is limited to the price for the Services payable under this agreement.
Either party’s liability for any claim relating to the agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.
You indemnify, defend and hold harmless The 738 Agency in respect of all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs (including legal fees on a full indemnity basis), in connection with any of the following:
• Any breach of this agreement;
• Your negligent acts or omissions; or
• Your use of the Services, including any third-party claims made in connection with or arising out of the Client’s use of the Service, other than use in accordance with this agreement;
• Breach of third party Intellectual Property.
You indemnify, and agree to keep The 738 Agency, its directors, officers and employees, indemnified against all Loss arising from actions taken performing Services.
Each party agrees to keep confidential, and not to use or disclose except as permitted by these terms and conditions, any Confidential Information of the other party. The parties agree not to disclose these terms and conditions (including any schedules), or any details of a Customised Quote or other pricing structures. This obligation of confidence extends to Confidential Information obtained by a party before entering into this agreement.
The obligation of confidence above does not apply to Confidential Information to the extent that is required to be disclosed by law or the rules of any stock exchange on which the recipient’s securities are listed, provided that the recipient discloses the minimum amount of Confidential Information required to satisfy the Law or rules.
The Party required to disclose the other Party’s Confidential Information as set out above must:
• Provide a reasonable amount of notice to the other Party of the proposed disclosure;
• Consult with the other Party as to the form of the disclosure; and
• Take all reasonable steps to maintain such Confidential Information in confidence.
Each party must take all steps and do all such things as may be necessary, prudent or desirable in order to safeguard the confidentiality of the Confidential Information of the other party.
35. CALCULATION OF FEES IF NOT SPECIFIED
If the Fees are not specified (in a Custom Quote or otherwise) at the commencement of the Service, then The 738 Agency will charge you at the Professional Hourly Rates for all work that The 738 Agency carry out for you in the course of the Service. The Professional Hourly Rates may change from time-to-time.
The 738 Agency will perform the Services as specified in the Custom Quote or as agreed in writing with the client, utilising the specified providers and/or platforms, for the specified term.
Refunds will not be issued for paused work or overpayment.
Travel time is not included in our quotations as The 738 Agency office is our preferred location as it is appropriately set up for meetings and presentations or alternatively online via Zoom.
If you would prefer meetings at your office or any other location additional fees may apply. The 738 Agency reserves the right to charge Additional Costs caused by the Client’s instructions, lack of instructions, interruptions, mistakes, work for which The 738 Agency is not responsible and changes to the requirements, expectations or hardware and Software environment, and extra work required caused by faults or defects in any service provided by a third party.
36. PAYMENT METHOD
Payment for Services may be made by credit card (Visa, MasterCard) or bank transfer to our nominated bank account. If you prefer to pay via PayPal or Stripe, an online payment fee will be applied to your invoice to cover the cost of the PayPal fee.
In relation to our Services, The 738 Agency may issue invoices for:
• Payment as indicated for the service you’ve purchased;
• Additional costs on an ad hoc basis as agreed.
All the Fees and Additional Costs are + GST.
38. DURATION OF AGREEMENT AND ITS TERMINATION
Upon execution by both parties, this agreement will take effect immediately and remain in effect until the purpose of the Service has been achieved.
Any term listed in the Agreement will automatically renew for subsequent periods of the same duration unless either party gives the other party written notice terminating the agreement 30 days prior to the expiration of the term or both parties agree in writing to vary the Services provided. If however, a Digital Bundle has a minimum duration period of which if the package is cancelled at anytime during the minimum period, it is required that the retainer is paid in full.
A party may terminate this agreement by notice in writing to the other party if:
• The other party commits a material breach of this agreement that is capable of remedy (including failure to pay any amount due under this agreement) and fails to remedy that breach within  days after receiving notice from the other Party to do so;
• The other party commits a material breach of this agreement that is not capable of remedy; or
• The other Party becomes Insolvent.
The 738 Agency may terminate this agreement if:
• You do not provide any information or materials requested within a reasonable time after being asked to do so; or,
• The 738 Agency consider that mutual confidence and trust no longer exist.
Upon termination of this agreement:
• Our obligation to carry out the Service ceases;
• Each party’s rights and obligations accrued prior to termination are not affected;
• The licences granted in this Agreement cease;
• Any unpaid invoice owed to The 738 Agency must be paid, including for any minimum term and:
• Each party must immediately return to the other party (or destroy or delete as the other party directs) all Confidential Information of the other party in its possession or control, except to the extent that the party needs to keep such information to comply with its record-keeping obligations.
Terms of this agreement
• Terms of this agreement is subject to change without notice.