DANIEL SIM DESIGN

Terms & Conditions

PERICOMM PTY LTD  •  ABN 20 091 271 028

“Daniel Sim Design” and “DSD” refer to the trading name of PERICOMM PTY LTD.

[email protected]  •  www.danielsim.com

Effective Date: [DATE]

Version 2.2  •  UCT, PPSA, Privacy Act, Copyright and ACL hardening

Relationship & Communication

PART A — TERMS & CONDITIONS

1. Definitions and Interpretation

1.1 Definitions. In these Terms, capitalised terms have the meaning given below:

“ACL” means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

“Business Day” means a day that is not a Saturday, Sunday or public holiday in Brisbane, Queensland.

“Client” means the person, business or entity engaging DSD, including any agent or employee with apparent authority.

“Confidential Information” means has the meaning given in clause 11.

“Deliverables” means the final approved creative, design, website or other work product specifically created for the Client under the Engagement.

“Documentation” means any invoice, quote, proposal or written agreement issued by DSD that records the scope, fees and terms of an Engagement.

“DSD” means Daniel Sim Design, a trading name of PERICOMM PTY LTD ABN 20 091 271 028.

“Engagement” means the supply of services by DSD to the Client under any Documentation, accepted as set out in clause 2.

“Fees” means all amounts payable by the Client under the Documentation.

“Intellectual Property” means copyright, trade marks, designs, patents, know-how, trade secrets and rights of confidence, whether registered or unregistered.

“Minimum Term” means the minimum service term stated in the Documentation.

“Personal Information” means has the meaning given in the Privacy Act 1988 (Cth).

“PPSA” means the Personal Property Securities Act 2009 (Cth).

“Terms” means these Terms & Conditions, as updated under clause 4, together with the Documentation.

1.2 Interpretation. A reference to ‘writing’ includes email to or from a verified DSD email address. A reference to a statute includes its regulations, instruments and amendments. Headings are for convenience only.

2. Acceptance

The Client agrees to these Terms and is bound by them on the earliest of:

• accepting a quote or proposal in writing;
• requesting work to commence;
• paying or part-paying an invoice;
• supplying briefing materials, content, credentials or access for work to begin;
• continuing to use the services, including under a recurring management or hosting plan; or
• continuing to engage DSD after receiving a copy of, or link to, these Terms.

These Terms together with the Documentation form the entire agreement between the parties and supersede any earlier discussions, representations, terms of business issued by the Client, purchase-order conditions or understandings, unless expressly varied in writing signed by DSD.

The current version of these Terms is available at danielsim.com.au/terms-and-conditions/ or any successor URL nominated by DSD.

 

3. Australian Consumer Law

Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right, remedy or protection that cannot lawfully be excluded, restricted or modified under the ACL or any other applicable law (Non-Excludable Right).

Where DSD is permitted to limit liability for breach of a Non-Excludable Right relating to services that are not of a kind ordinarily acquired for personal, domestic or household use, DSD's liability is limited at DSD's option to: (a) re-supplying the services; or (b) paying the cost of having the services re-supplied.

References throughout these Terms to limitations on liability, set-off, refunds, guarantees, indemnities or termination rights are subject to this clause and operate only to the extent the law permits.

 

4. Updates to These Terms

DSD may update these Terms from time to time.

For new projects, new invoices, new Engagements, renewals and services commencing after the updated Terms are published, the updated Terms apply.

For an existing Minimum-Term arrangement, DSD will not unilaterally make changes that materially and adversely affect the Client's rights or obligations during the current Minimum Term unless:

• required by law, including changes required by privacy, consumer, taxation or telecommunications regulators;
• the change is reasonably necessary to protect security, service integrity, third-party platform compliance, or DSD's legal compliance;
• the change is agreed in writing; or
• DSD has given the Client at least 30 days' written notice of the change and the Client has not, within that notice period, elected to terminate the affected service with effect from the date the change takes effect (in which case the Client remains liable only for Fees up to the termination date and unrecovered setup costs as if the Minimum Term had been served to that date).

5. Scope of Services

5.1 Defined Scope

Services are limited strictly to those described in the Documentation.

5.2 Out of Scope

Any services outside the defined scope are a new engagement and billed separately at DSD's current rates.

5.3 Verbal Discussions

Verbal discussions, draft concepts, suggestions or informal exchanges are not binding on either party unless confirmed in writing.

5.4 Nature of Services

Subject to clause 3, DSD provides creative, design, website and related services based on the agreed scope, Client brief, supplied materials, third-party platform limitations and professional judgement. DSD does not guarantee any particular commercial result, search ranking, revenue, traffic, conversion rate or business performance unless expressly agreed in writing.

5.5 Reasonable Care and Skill

DSD will perform the services with due care and skill in accordance with prevailing professional standards for creative and web-design services in Queensland, Australia.

 

6. Client Responsibilities

The Client agrees to:

• provide accurate briefs, content and feedback within agreed timeframes;
• review and approve all proofs, designs and Deliverables before publication or launch;
• confirm accuracy of all content prior to approval;
• warrant that it holds, and will continue to hold, the necessary rights, consents and licences to supply any text, images, logos, data, audio, video, testimonials and third-party assets to DSD for the agreed purpose;
• respond to DSD communications in a timely manner;
• maintain security of its own accounts, credentials, domains, hosting accounts, email accounts and payment methods; and
• comply with all laws, codes and platform terms applicable to its use of the Deliverables and any data it supplies.

Approval constitutes acceptance of accuracy. Subject to clause 3, DSD is not liable for errors, omissions or issues identified after Client approval has been granted.

 

7. Pricing & Payments

7.1 Invoices and Currency

All amounts are quoted in Australian Dollars (AUD) and include GST where applicable. Payment of any invoice confirms acceptance of these Terms and the relevant Documentation. Each invoice will comply with the tax-invoice requirements of the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

7.2 Payment Terms

Unless otherwise stated in the Documentation, invoices are payable within 7 days of issue.

7.3 Disputed Amounts and No Set-Off

(a) The Client must pay all undisputed amounts by the due date.

(b) If the Client disputes part of an invoice in good faith, the Client must notify DSD in writing before the due date, identify the specific amount disputed and provide reasons.

(c) Dissatisfaction, change of mind, delayed feedback or requests for further revisions do not suspend payment obligations unless DSD agrees in writing or the law requires otherwise.

(d) Subject to clause 3 and any non-excludable right of set-off at law, the Client may not set off, withhold, deduct or counterclaim any amount against any amount due to DSD.

7.4 Minimum-Term Arrangements

(a) Where a Website Management Plan or similar ongoing service has a stated Minimum Term, the Client is entering into a fixed-term service arrangement.

(b) The pricing reflects subsidised design, development, onboarding, migration, hosting setup, administration, software configuration and reserved production capacity recovered across the Minimum Term, and represents a genuine pre-estimate of DSD's costs and reasonable margin in committing capacity to the Client for the Minimum Term.

(c) The Client remains liable for Fees payable during the Minimum Term unless DSD agrees otherwise in writing, DSD materially breaches the agreement and fails to remedy that breach within 30 days after written notice, or the law requires otherwise.

(d) Any early-termination amount is intended to recover DSD's unpaid service Fees, unrecovered setup costs, committed third-party costs and reserved capacity, and is calculated as the lesser of (i) the aggregate Fees that would have been payable for the unexpired portion of the Minimum Term; or (ii) such amount as DSD reasonably determines represents its genuine loss. It is not intended to operate as a penalty.

Transparency Requirement: Every invoice or proposal for a Minimum-Term arrangement must clearly disclose the Minimum Term length, the recurring amount, any setup or onboarding fees, the total minimum contract value, and an indicative early-termination amount or methodology.

7.5 Automatic Billing and Renewal

(a) Plans require automatic billing via approved payment methods including direct debit, credit card or scheduled bank transfer. The Client authorises DSD (or its payment processor) to debit the nominated method for amounts due under the Documentation.

(b) At completion of the Minimum Term, billing continues on a rolling basis unless cancelled with 15 Business Days' written notice to [email protected].

(c) DSD will give the Client a renewal reminder no less than 30 days before the end of the Minimum Term, including the rolling rate and instructions for cancellation.

7.6 Non-Payment

(a) Where any amount is overdue, DSD may, after giving 7 days' written notice and an opportunity to cure, suspend or terminate the services. DSD may suspend immediately and without notice where the Client's payment method is fraudulent, repeatedly dishonoured or charged-back.

(b) Overdue amounts accrue interest at the rate of 10% per annum, calculated daily and compounding monthly, from the due date until payment in full.

(c) The Client is liable on an indemnity basis for DSD's reasonable recovery costs, including collection-agency fees, mercantile fees, dishonour fees and legal costs.

7.7 Instalment Arrangements

Where invoices are issued in instalments, the arrangement reflects project scheduling, creative development, consultation, administration and reserved production capacity across the duration of the Engagement. Pausing, delaying, abandoning or discontinuing a project does not cancel remaining instalment obligations unless expressly agreed in writing by DSD.

 

8. Third-Party Services

Subject to clause 3, DSD is not liable for outages, failures, performance issues or losses caused by third-party providers including hosting platforms, domain registrars, payment gateways, email services, plugins, themes or any external software.

The Client agrees to be bound by, and remain in compliance with, the licence and service terms of any third-party services used in connection with the Engagement and indemnifies DSD against any loss arising from the Client's breach of those terms.

DSD does not warrant or guarantee any particular uptime, availability, performance, security or service level of third-party platforms or hosting services unless an SLA is expressly stated in the Documentation.

 

9. Revisions & Updates

9.1 Included Revisions

Engagements include the number of revision rounds expressly stated in the Documentation.

9.2 Additional Revisions

Changes beyond the included revisions are billed at DSD's current hourly rate.

9.3 External Edits

Where the Client, its staff or third parties edit Deliverables outside DSD's control and these edits cause issues, repairs and corrections are billed at current rates.

9.4 Roll-Over

Included update time, support hours or revision allocations do not roll over to subsequent periods unless expressly stated in writing.

9.5 Deemed Approval

A revision or stage is taken to be approved where the Client (a) provides written approval; (b) does not request changes within 14 days of the work being presented; or (c) uses, publishes or commercially deploys the work.

 

10. Intellectual Property

10.1 Client Pre-Existing Materials

The Client retains ownership of any pre-existing Intellectual Property, brand assets, content, trade marks, images, materials and data supplied to DSD. The Client grants DSD a non-exclusive, royalty-free licence to use such materials for the purpose of performing the Engagement and exercising DSD's rights under clause 10.8.

10.2 Final Deliverables — Conditional Assignment

With effect from full cleared payment of all Fees relating to the Engagement, DSD hereby assigns to the Client all right, title and interest (including copyright) in the final approved Deliverables specifically created for the Client. This assignment is expressly conditional on full payment and does not take effect until that condition is satisfied. Each party will execute any further documents reasonably required to give effect to this assignment.

This assignment excludes working files, source files, rejected concepts, preliminary drafts, internal processes, templates, strategy frameworks, methodologies, know-how, third-party assets, software, and any pre-existing materials of DSD, unless expressly stated otherwise in writing.

10.3 Working Files and Source Files

Source files, editable files, native design files, development repositories, staging environments and working files are not included in the Deliverables unless expressly listed in the Documentation. Where source files are required, they are available for separate purchase at DSD's current rates.

10.4 No Release Prior to Payment

No files, backups, source files, credentials, account access or Intellectual Property assignments are released, and no assignment under clause 10.2 takes effect, prior to cleared payment of all relevant invoices.

10.5 No Partial Assignment

No staged, conditional or partial Intellectual Property transfer occurs unless expressly agreed in writing by DSD.

10.6 DSD Reserved Rights

DSD retains ownership of all of DSD's pre-existing materials, processes, templates, frameworks, libraries, components and tools, including any general improvements, learnings or know-how arising from the Engagement. The Client acknowledges this reservation.

10.7 Third-Party Assets

Stock images, fonts, plugins, themes and other third-party assets remain subject to their own licence terms. The Client is responsible for ongoing licensing where required.

10.8 Portfolio Rights

DSD may display completed, publicly launched work in its portfolio, case studies, social media, awards submissions and marketing materials, including using the Client's name, logo and brand assets for that purpose, unless the Client has notified DSD in writing before project commencement that the work is confidential or subject to restricted publication.

DSD will not knowingly disclose confidential information, private client data, unpublished strategy, login credentials, sensitive commercial information, patient or medical data, legal advice, financial data, or materials subject to a written non-disclosure agreement.

10.9 Moral Rights Consent

Each author of a Deliverable created by or on behalf of DSD has provided, or will provide, written consent under section 195AW of the Copyright Act 1968 (Cth) to acts or omissions by DSD and the Client that would otherwise infringe the author's moral rights of attribution, false attribution and integrity, including modification, alteration or non-attribution of the work, provided use is consistent with the agreed purpose of the Engagement.

The Client consents in writing under section 195AW of the Copyright Act 1968 (Cth) to acts or omissions by DSD in respect of any work in which the Client holds copyright, where reasonably necessary for DSD to perform the Engagement or to use the Deliverables in DSD's portfolio under clause 10.8.

 

11. Confidentiality

Each party must keep the other party's Confidential Information confidential and must not use or disclose it except for the purpose of performing the services, enforcing these Terms, obtaining professional advice or where required by law.

Confidential Information means information disclosed by a party that is marked confidential, is by its nature confidential, or would reasonably be regarded as confidential, including business plans, customer lists, pricing, designs in draft, strategy and unpublished creative concepts.

Confidential Information does not include information that is publicly available, already known without breach, independently developed or lawfully received from another source.

Confidentiality obligations continue after termination of the Engagement for three years for general business information, and indefinitely for Personal Information, trade secrets and information that by its nature requires ongoing protection.

Any settlement, discount, custom pricing arrangement or early-termination agreement is confidential and may not be disclosed unless required by law.

 

12. Privacy, Spam and Client-Content Compliance

12.1 Each-Party Compliance

Each party must comply with privacy, spam, marketing, data-protection and confidentiality laws that apply to that party, including the Privacy Act 1988 (Cth), the Australian Privacy Principles, the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth).

12.2 DSD's Handling of Personal Information

DSD handles Personal Information collected from the Client in accordance with the DSD Privacy Policy available at danielsim.com.au/privacy. DSD will notify the Client of any eligible data breach affecting Personal Information of which the Client is the responsible APP entity, without undue delay and within timeframes that allow the Client to meet its obligations under the Notifiable Data Breaches scheme.

12.3 Client Warranties on Supplied Data

The Client warrants that any Personal Information, mailing lists, customer data, health information, testimonials, images, claims, advertising copy, reviews, leads or marketing content supplied to DSD has been lawfully collected, with appropriate consents, and may be lawfully used for the intended purpose, including any direct marketing or display.

12.4 Marketing Builds

Where DSD builds, configures or supports forms, email campaigns, landing pages, CRM systems, automations or marketing tools, the Client remains responsible for the accuracy, legality and compliance of the underlying content, offers, claims, consents, privacy notices and unsubscribe processes unless DSD has been expressly engaged in writing to advise on compliance.

12.5 Indemnity

The Client indemnifies DSD against any claims, complaints, investigations, penalties, fines or losses arising from the Client's breach of clauses 12.1, 12.3 or 12.4, or from any content or data supplied by the Client.

 

13. Personal Property Securities Act

13.1 Security Interest

The Client acknowledges that these Terms create a security interest under the PPSA in: (a) all Deliverables, working files, source files, credentials, accounts and any other personal property in DSD's possession or control relating to the Engagement, until cleared payment in full; and (b) all proceeds arising from the foregoing.

13.2 Consent to Registration

The Client consents to DSD registering its security interest on the Personal Property Securities Register and will sign or provide any document, information or assistance reasonably required to enable that registration to be perfected.

13.3 Waiver of PPSA Notices

To the extent permitted by section 115 of the PPSA, the Client waives its rights to receive notices, statements or other matters under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA.

13.4 Confidentiality

Neither party will disclose information of the kind described in section 275(1) of the PPSA except as required under that section.

13.5 Costs

The Client will pay DSD's reasonable costs in registering, maintaining and enforcing any security interest, on an indemnity basis.

 

14. Cancellation & Termination

14.1 Non-Term Services

Services without a Minimum Term may be cancelled with 15 Business Days' written notice to [email protected].

14.2 Minimum-Term Services

Services with a Minimum Term remain payable in full for the duration of the Minimum Term subject to clause 7.4.

14.3 Termination by DSD

DSD may, by notice in writing, suspend or terminate services immediately if the Client:

• fails to pay any amount owed and does not remedy that failure within 7 days of notice;
• commits a material breach of these Terms that is not capable of remedy, or is capable of remedy and is not remedied within 14 days of notice;
• becomes insolvent, has an external controller or administrator appointed, or otherwise ceases to be able to pay its debts as they fall due;
• engages in conduct that is abusive, threatening, harassing, defamatory, unlawful or fraudulent toward DSD or its personnel; or
• misuses the services in a way that exposes DSD to legal, security or reputational risk.

14.4 Termination by Client for DSD Breach

The Client may terminate by written notice if DSD commits a material breach that is not remedied within 30 days after written notice from the Client, in which case clause 7.4(c) applies.

14.5 Continuing Obligations

Termination does not remove payment obligations for services rendered, work completed, instalments due or Minimum-Term balances payable under clause 7.4.

14.6 Handover Obligations

On termination, and subject to cleared payment of all amounts due, DSD's obligation is limited to providing one set of available backups and reasonable clarification. DSD is not responsible for migration, deployment, third-party configuration, training, ongoing maintenance or any other transition activity unless engaged separately at current rates.

14.7 Survival

Clauses 1, 3, 7 (in respect of amounts accrued), 10, 11, 12, 13, 15, 16, 18, 19, 20 and any other clause which by its nature is intended to survive, will survive termination.

 

15. Liability & Indemnity

15.1 ACL Savings

This clause is subject to clause 3.

15.2 Excluded Loss

To the maximum extent permitted by law, DSD is not liable for any indirect, consequential, special, incidental, punitive or exemplary loss, including loss of profits, business interruption, loss or corruption of data, loss of opportunity, loss of goodwill, third-party claims arising from Client content, or any commercial outcome not expressly guaranteed in writing.

15.3 Liability Cap

To the maximum extent permitted by law, DSD's aggregate liability to the Client (in contract, tort, statute or otherwise) for all claims arising out of or in connection with the Engagement is capped at the lesser of: (a) the Fees actually paid by the Client to DSD under the Documentation in the 12 months preceding the event giving rise to the claim; or (b) AUD $10,000.

15.4 Client Indemnity

The Client indemnifies DSD, its officers, employees and contractors on a continuing basis against any third-party claims, demands, proceedings, losses, damages, fines, penalties and reasonable legal costs arising from:

• the Client's use or misuse of Deliverables, or use beyond the agreed purpose;
• any breach by the Client of these Terms, applicable law, or any third-party platform terms;
• any content, data, instructions, claims, materials or rights provided or warranted by the Client;
• any allegation that Client-supplied materials infringe a third party's Intellectual Property or other rights; and
• any privacy, spam, defamation, consumer-law or misleading-conduct claim arising from Client-supplied content.

15.5 IP Infringement

DSD warrants that, to the best of its knowledge, the Deliverables (excluding any Client-supplied materials and third-party assets) do not knowingly infringe the Intellectual Property rights of any third party. DSD's sole liability for IP infringement of Deliverables is, at DSD's option, to modify the Deliverables to make them non-infringing, procure rights, or refund the relevant portion of Fees, subject to the cap in clause 15.3.

 

16. Delays & Force Majeure

16.1 Client Delays

Client delays beyond 14 days, including failure to provide content, feedback, approvals or payment, may result in the project being paused, rescheduled or terminated at DSD's discretion. Fees for work completed and reserved production capacity remain payable. DSD may charge a reasonable re-scheduling fee to resume a paused project.

16.2 Force Majeure

Neither party is liable for delay or failure in performance (other than payment obligations) caused by events beyond its reasonable control, including natural disasters, government action, public health orders, supplier failure, cyber attacks, telecommunications outages, internet outages, denial-of-service attacks, pandemic or epidemic conditions, terrorism, war, or strikes.

16.3 Notice and Termination

The affected party must notify the other promptly of any force-majeure event and use reasonable endeavours to resume performance. If a force-majeure event continues for more than 60 days, either party may terminate the affected Engagement on written notice without further liability, save for accrued Fees and clause 14.5.

 

17. Refusal of Service

DSD reserves the right to refuse or discontinue services relating to content considered unlawful, hateful, abusive, defamatory, malicious, discriminatory, obscene, fraudulent or misleading, or content that may bring DSD into disrepute.

 

18. Dispute Resolution

18.1 Good Faith

The parties agree to attempt resolution in good faith before commencing legal proceedings.

18.2 Notice and Escalation

Concerns must first be submitted in writing to [email protected], setting out the nature of the dispute and proposed resolution. The parties will use reasonable endeavours to resolve the dispute within 14 days of notice.

18.3 Mediation

If unresolved after 14 days, the parties agree to attempt mediation through the Queensland Law Society or another mediator agreed between them, within Queensland, Australia, before commencing litigation, where reasonably practical. Costs of mediation are borne equally unless the mediator orders otherwise.

18.4 Carve-Out

Nothing in this clause prevents a party from seeking urgent injunctive or equitable relief, or commencing recovery proceedings in QCAT or the Magistrates Court of Queensland for unpaid Fees.

 

19. Governing Law and Jurisdiction

These Terms are governed by the laws of Queensland, Australia. The parties submit to the exclusive jurisdiction of the courts of Queensland and any courts having appellate jurisdiction.

The United Nations Convention on Contracts for the International Sale of Goods does not apply.

 

20. General

20.1 Notices

A notice must be in writing and is taken to be given: (a) if delivered by hand, at the time of delivery; (b) if sent by email to the address last notified by the receiving party (in DSD's case, [email protected]), 24 hours after sending unless the sender receives an automated non-delivery report; or (c) if sent by post to the address last notified, 5 Business Days after posting.

20.2 Assignment

The Client must not assign or transfer its rights or obligations under these Terms without DSD's prior written consent. DSD may assign, novate or sub-licence its rights and obligations to any related body corporate or to a purchaser of its business.

20.3 Subcontracting

DSD may subcontract any part of the services to qualified subcontractors and remains responsible for their performance to the same extent it would be for its own personnel.

20.4 Severability

If any provision of these Terms is held invalid or unenforceable, it is severed to the extent of the invalidity and the remaining provisions continue in full force.

20.5 No Waiver

A failure or delay by DSD in exercising a right is not a waiver of that right. A waiver must be in writing signed by DSD.

20.6 Variation

Other than under clause 4, these Terms may only be varied by written agreement signed by DSD.

20.7 Counterparts and Electronic Acceptance

These Terms may be accepted electronically and in counterparts, each of which is taken to be an original. An electronic signature or click-acceptance is taken to be valid execution by the Client.

20.8 Relationship

The parties are independent contractors. Nothing in these Terms creates a partnership, joint venture, agency or employment relationship.

20.9 Further Assurances

Each party will execute such further documents and do such things reasonably necessary to give full effect to these Terms.

 

21. Entire Agreement

These Terms together with the Documentation constitute the entire agreement between the parties and supersede prior discussions, representations, proposals or understandings unless expressly varied in writing by DSD.

 

22. Contact

Daniel Sim Design (DSD)

PERICOMM PTY LTD

ABN 20 091 271 028

[email protected]

www.danielsim.com