Standard Terms and Conditions

The client and Spark Group are bound by the acceptance of the following terms and conditions.

1. Introduction:

This document should be read in conjunction with the Letter of Appointment and Proposal or Project Specification if any. All of these documents together form the Agreement between Spark Group and the Client, and by using or continuing to use the services of Spark, the Client agrees to be bound by these terms and conditions.

These terms and conditions can only be varied by written agreement between the parties, and signed, in the case of Spark Group, by a director. These terms and conditions supersede all previous agreements and understandings between the parties. Spark Group will provide the Client, on the terms and conditions hereinafter specified, with the Services and/or Works set out in the Proposal or Project Specification or Proposal.

This Agreement shall be deemed to have been made in Victoria, Australia and shall be governed by the laws of Victoria, Australia. The parties hereto hereby submit to the non-exclusive jurisdiction of the Victorian Courts.

2. Definitions

Spark Group ("we", "us") operates from Australia worldwide and is an internet and new media service provider, and tries to offer the best of these services to the client or customer. Spark has its registered office at Level 2, 110 Bridport Street, Albert Park, Vic 3206, Australia.

Client ("they"): The person, partnership, firm or corporate body together with any subsidiary or associated company as defined by the Companies Act 1997 to whom Spark Group provides Services and/or Works under the Agreement.
Services: All services provided by or on behalf of Spark Group in fulfilment of the Project
Specification or Proposal.
Design Elements: Design and certain design features (including but not limited to the layout, fonts used, structures, organisation and backgrounds) used in the fulfilment of the Project Specification or Proposal.
Letter of Appointment: A letter sent by Spark Group to the Client for the Client to sign confirming that the Client has appointed Spark Group to provide the Services and/or the Works, or a Purchase Order.
Project Specification or Proposal: The document which details the Client’s requirements in respect of the extent, scope, cost and timetable of the Services and/or Works. Agreement: The combination of the Letter of Appointment, these terms and conditions, the Project Specification and, where appropriate, the Licence Agreement.
Charges: The fees and charges of Spark Group for the provision of Services and/or Works as set out in the Project Specification.
Date of Agreement: The date the Letter of Appointment is signed by the Client or a Purchase Order is received by Spark Group from the Client.
Date of Delivery: The date on which the Services and/or Works are made available to the Client.
Date of Acceptance: The date on which the Client either confirms in writing to Spark that it is satisfied that the Services and/or Works meet with the Project Specification or, where the Client provides neither such written confirmation nor other advice to suggest that the Services and/or Works fail to comply with the Project Specification, 5 working days after the Date of Delivery.
Acceptance Testing: The process performed by the Client to determine whether the Services and/or Works perform in accordance with the Project Specification, commencing from the Date of Delivery.

3. Commencement, term, services, works, approvals and supply of data

Services and Works: Spark will provide the Client, on the terms and conditions hereinafter specified, with the Services and/or Works set out in the Project Specification. Commencement and Term: The Agreement shall commence from the date the Letter of Appointment is signed by the Client, and shall subsist for the period specified in the Letter of Agreement.
Approvals: The Project Specification or Proposal sets out the timetable for the delivery of the Services and/or Works, and specifies deadlines for the approval of key stages by the Client. If the Client delays the approval of key stages of the Services and/or Works, the schedule and workload may be affected. Spark Group reserves the right to increase the Charges for any such delay or increase in workload.
Supply of data: The Project Specification or Proposal sets out the data formats and deadline for the supply of data by the Client. If the Client supplies data late or in the wrong format, the schedule and workload may be affected. Spark reserves the right to increase the Charges for any such delay or increase in workload.

4. Charges and Terms of Payment

The fees and charges of Spark Group for the provision of Services and/or Works will be as set out in the Project Specification or Proposal. Invoices will be raised at various stages as agreed with a % of the total cost payable at each stage. Where charges are payable on a monthly or annual basis Spark Group reserves the right to vary the Charges each year on the anniversary of the Date of Agreement. Spark Group reserves the right to restrict access to the Client’s website if any monies remain unpaid for sixty days or more.
Charges have GST added to Spark Group invoices and paid by the Client where the client is in Australia. In addition to the charges, Spark Group reserves the right to recover at cost any out-of-pocket expenses incurred in discharging its contractual obligations under the Agreement provided such amounts have been agreed in writing by the Client.

5. Confidentiality

Each party undertakes to treat as confidential any information relating to the other party’s respective business affairs, products and services, methods or techniques and its customers’ affairs as follows:
to keep confidential all information, written or oral, concerning the business and affairs of the other party, its products and services and its customers that the receiving party shall have obtained or received as a result of the discussions leading up to or on the entering into or performance of the Agreement; not to disclose (except with the other party’s express written
consent) such information in whole or in part to any other person save those of its employees involved in the implementation of the Services and/or Works and who have need to know the same; and to use such information solely in connection with the implementation of the Services and/or Works or for generic product research and not for its own benefit or the benefit of any third party.

Both parties agree that the obligations of confidentiality heretofore described are binding in perpetuity and as such survive the term of the Agreement.

The following information shall not be subject to the duty of confidentiality: information in the public domain at the time of disclosure or which, after disclosure, enters into the public domain through no fault of the receiving party; information already in the possession of or already known to the receiving party at the time of disclosure by authorised and lawful means; and information which is required to be disclosed by applicable law or regulation, in which case the disclosing party shall promptly notify the other party (if permitted by law) of the need to disclose.

6. Warranty

The Client will be relying on Spark Group’s skill expertise and experience in digital design and e- commerce. Spark Group warrants that it will perform the works required to implement any relevant software, and all other services pursuant to the Agreement including modifications to its functionality to reflect requirements set forth in the Project Specification with reasonable skill and care and in a proper and professional manner. Subject to compliance by the Client with
its obligations under the Agreement, Spark Group will use all reasonable endeavours to provide the Services and/or Works within the period specified in the Project Specification.
Subject to compliance by the Client in regard to the supply of data pursuant to condition 3, Spark Group warrants that the Works will provide the facilities and functions as defined in the Project Specification, and that all user manuals and guide documentation will, in conjunction with on-site training, provide adequate instructions to enable the Client to make proper use of such facilities and functions.
The Client acknowledges that Spark Group has no responsibility to the Client beyond the activities specified within the Agreement and that Spark Group bears no responsibility to the Client regarding: the commercial transactions accommodated by the Works, and the manner in which the Services and/or Works are employed.
Spark Group makes or includes no representations, terms, conditions, warranties or guarantees other than those specifically contained in the Agreement and in no circumstances shall Spark Group be liable (whether in contract or in tort save in respect of death or personal injury arising out of the negligence of Spark Group, its servants or agents) for any indirect or consequential losses (including without limitation loss of profit or of business opportunity) suffered by the Client
while using the Services and/or Works. Without prejudice to the provisions of this condition, the maximum liability of Spark Group under or in connection with the Agreement in respect of any claim or claims by the Client against Spark Group in any one year of the Agreement giving rise to a liability of Spark Group hereunder whether for breach of the Agreement or breach of statutory duty negligence or otherwise (but other than in respect of death or personal injury arising out of the
negligence of Spark Group, its servants or agents) shall not exceed the total sum payable by the Client under condition 4.

7. Suppliers, controllers and sub-contractors

Spark Group makes every effort to select the best tier-one providers as our select partners in issuing services to our clients. Where Spark Group itself is unable to directly produce tangible goods or intangible tertiary services for direct supply to the consumer, we reserve the right to source what we believe to be the most suitable subcontractor or supplier to produce or
provide these for us. However, whilst we will make every effort to ensure the supply rate or quality of these products or services are to high industry standards, we cannot guarantee, and will not be held responsible for, any loss of service or temporary degradation in service quality.
Once work is completed at various stages under contract, amendments will not necessarily be carried-out free of charge. Charges will apply in the normal course of business for the number of hours and/or normal separate costs that Spark Group would normally require for the services carried out in adding or amending any data or work.

8. Acceptance Testing

The Client will undertake a programme of testing which it will devise and execute for its own part to ensure that the Services and/or Works operate in accordance with the Project Specification or Proposal. The Acceptance Testing period shall be for a maximum period of 14 days following the Date of Delivery, during which period: where the tests demonstrate that the
Services and/or Works are not capable of achieving the results indicated in the Project Specification or Proposal, the Client will complete an error log detailing the fault and the circumstances in which it arose.
The Client shall undertake to channel all requests for advice and for diagnosis of faults in the Services and/or Works through one designated member of its staff (and in the absence of that individual through a nominated deputy), and shall use all reasonable endeavours to aggregate requests for advice where the matters are not of an urgent nature.
Prior to placing requests to Spark Group for advice or the diagnosis of faults in the Services and/or Works, the Client shall consult the error log to endeavour to determine whether the fault has previously been encountered, and whether the resolution of the matter lies within the capability and experience of the Client.
The Client recognises that where Spark Group is requested to investigate reported faults which do not arise as a result of errors within the Services and/or Works or a failure on the part of Spark Group to perform the Services in accordance with reasonable levels of care and skill, requests for support may at Spark Group’s discretion attract such charges as Spark Group shall consider fair and reasonable in the circumstances.
Spark Group will use all reasonable efforts to respond to an error log in a reasonable timescale. The Client shall be entitled to require Spark Group to remedy any faults, and have a further period in which to test the Works after Spark Group has attempted to remedy the faults within a reasonable period.
The Client acknowledges that any changes to the Works required subsequent to the Date of Acceptance should be notified to Spark Group in writing and will be subject to the man day charges as set out in the Project Specification. Following the period of Acceptance Testing and save where the Client has notified Spark Group that the Works do not meet with the Project Specification, the Client will within 5 working days of the completion of the Acceptance Testing acknowledge in writing to Spark Group its acceptance of the Works.
Where the Client identifies errors in the Works which are as a result of a failure by Spark Group to perform the Services in accordance with reasonable levels of care and skill subsequent to the Date of Acceptance, Spark Group undertakes to correct such errors at no cost to the Client but Spark Group shall in no circumstances be liable to the Client for indirect or consequential loss of any nature whatsoever whether for loss or profit, loss of business or otherwise which might occur as a consequence of such errors or generally. All reasonable efforts will be made to rectify faults as soon as possible.

9. Computer virus, security and statutory responsibility

Both parties recognise that it is possible for software to be produced that could corrupt software used in the Services and/or Works including the operating software. Such corruption of software may remain dormant and will not necessarily be found during a period of Acceptance Testing by the Client. Such corruption, which for the purposes of this clause shall
exclude bugs or other errors, shall be termed "a Virus" or "Viruses".
Spark Group warrants that it has used all reasonably feasible endeavours during the development and modification of the Works to ensure that no Viruses are coded or introduced to the system. Both parties undertake that, prior to sending any data files to the other party, a vigorous check will be undertaken and they will use all reasonably feasible endeavours to
ensure that all such files are free from all known viruses. Both parties agree in the event that a Virus is found and is proven to be the responsibility of the other party that the offending party will use at their own expense best endeavours to
assist the other party in reducing the effect of the Virus, and particularly in the event that a Virus causes loss of operational efficiency and/or loss of data to assist the other party to the same extent to mitigate such losses and to restore the other party to its original operating efficiency.
When on the Client's premises, employees and sub-contractors of Spark Group shall observe the Client's Health & Safety and Security Rules, and when access to the Client's systems is required this shall be granted subject to Spark Group observing the Client's system security rules and procedures and using such access for the purposes of giving effect to the Agreement and for no other purpose.
The Client acknowledges its sole responsibility for ensuring that the Services and/or Works should be employed in a manner that satisfies all local legal requests requirements or regulations, including the rights of access of consumers in relation to the provisions of all legislation and regulations pertaining to data protection.

10. Termination, force majeure and service of notice

Either party will be entitled to terminate the Agreement forthwith on written notice to the other if the other party is guilty of any material breach of the Agreement which has not been remedied to the reasonable satisfaction of the innocent party after the giving by that party of not less than 30 days written notice to that effect. In the event of termination due to breach by
the Client, all payments previously made or invoiced or then due under the terms hereof but not yet invoiced will be unaffected and remain payable.
Either party may summarily terminate the Agreement at any time if the other party has a bankruptcy order or interim order made against it or becomes insolvent or suffers any execution or distress or any form of diligence or seizure to be levied or effected on or against the other party's premises or assets or being a company goes into liquidation or
administration or has a receiver appointed save for the purposes of any solvent reorganisation, amalgamation or reconstruction.
A party shall not incur any liability to the other party for any loss or damage sustained by that other party arising directly or indirectly from the failure of the first mentioned party to so perform its rights and obligations under the Agreement to the extent to which this is directly attributable to a cause beyond the reasonable control of the first mentioned party including
acts of public enemy, war, riots, civil disturbances, insurrections, accidents, fire, explosions, earthquakes, floods, the elements, or any law, order or requirement of any national, local or other competent authority passed or made after the date hereof.
Each party will give immediate notice to the other upon the occurrence of any disabling event and will use all reasonable endeavours to minimise the duration of any such event. Any notice, demand or communication which is required to be given under the Agreement shall only be effective on receipt thereof, shall be in writing signed by the party giving the
same or any agent of such party and may be delivered to, sent by certified postage, by hand, or by facsimile transmission in a legible format to the address or addresses which appear herein as the address or addresses of the party or parties to be served or the last known address of such party.
Spark Group acknowledges that it is of paramount importance to the Client that the security of the Works are not compromised and particularly that confidential information regarding its customer personal details are kept secure. To that end Spark shall use all reasonable endeavours to ensure that the Works shall be configured and operate in such a way as this information shall be kept and remain secure and available only to the Client and its authorised agents, but otherwise gives no warranty in this regard.

11. Intellectual Property & Copyright

Spark Group produces server-side scripting and programmatic source code ("software") for the running of a number of services for our clients, for instance the operation of Web sites. All source code by default is copyright Spark Group, and unless under the terms of a negotiated non- disclosure agreement will not be viewable by clients. Source code and server-side scripting is valuable far beyond the price of a contract and as such we must protect the investment of
time held within our programmatic products. All software provided to the client by Spark Group is granted under licence, which the client agrees to be bound by. The client does not own the software, rather a licence to use it in
accordance with the terms of the agreement itself. Unless negotiated separately, at which point additional or amended terms may be discussed, the client does not own the rights to duplicate the software in any form be it for backup or the de-compilation or segmentation of any services provided by the software, or any other use of the software excepting those set-
out in the licence.
Spark Group declares and undertakes that (subject as hereinafter provided) all rights, title, interest and goodwill (“the Rights”) in and to the Services and/or Works shall belong exclusively to the Client.
To the extent that any of the Rights do not vest automatically in the Client as and when created Spark Group irrevocably and with full title guarantee assigns the Rights to the Client (and where appropriate by way of present assignment of future copyright) and all other rights and interests in and any other protection recognised by law throughout the world in and to the
Services and/or Works for the full duration of such rights and all periods of renewal and extension of them.
Until such time as the Rights are assigned to the Client pursuant to the terms of the Agreement (or otherwise), the Rights that are created by Spark Group shall remain vested in Spark Group and Spark Group licences the Client to use such Rights as it requires for the conduct of its business without charge. Spark Group shall not itself (save in connection with the Agreement) or permit any third party to use such Rights during the subsistence of the Agreement or thereafter.
All data that is accumulated directly or indirectly from the Services and/or Works, and/or and any database derived therefrom (together, “the Data”) shall belong exclusively to the Client and Spark Group shall not use it in any way without the prior written consent of the Client. Spark Group assigns to the Client by way of future assignment all of its rights of whatever nature in the Data.
Spark Group warrants that all personnel performing any services for Spark Group shall be either its employees or its sub-contractors and that, under the contract of employment or of engagement (as the case may be) of each, any Rights arising out of or relating to work done by that person for Spark Group will vest or will be caused to vest in Spark and that employees and sub-contractors will have no title right or interest whether legal or beneficial in any such rights.
Spark Group warrants and represents that Spark Group will be the sole beneficial owner of all of the Rights in the Work conceived originated or made by the Spark Group’s personnel and sub-contractors during the course of the provision of the Services and that Spark Group will be free to assign such rights to the Client pursuant to the Agreement without any third party claims liens charges or encumbrances of any kind.
The obligations of the parties under this clause shall survive the expiry or the termination of the Agreement for whatever reason.
It is expressly agreed between the parties that the provisions set out in this condition shall not apply or have any effect until payment for the Services has been made in full (and without deduction or set-off) by the Client and that all Intellectual Property Rights in the work shall remain vested in Spark without obligation to grant a licence or licences for the use thereof to the Client until such payment has been made.

12. Indemnification and liabilities, transfer, and amendments or additions

The client is responsible for the content of all material delivered through our services. The client is responsible for all liabilities arising out of their use of their hosted web content, including contractual, tax, and regulatory liabilities. The client agrees to indemnify us for any costs, expenses or liabilities we incur due to their use of the service or their website. We reserve the right to remove any information we deem to be in breach of any of these terms and conditions without warning and/or to make available such information when required to do so by law or when requested to regulatory bodies or law enforcement organizations. In any event, we shall not be liable for any loss of profits or consequential or economic loss of any kind. Our liability will not exceed, in any circumstances, the amount paid by the client to us pursuant to this
agreement.
The client may not assign, sub-contract, transfer or otherwise dispose of any of their rights or obligations under these terms and conditions without our prior consent.
The client understands that at any point we may alter by amendment or by appending to these terms and conditions, without necessarily directly informing the relevant users or customer base. The existence of these terms and the client’s bindings to them represent the fact that it is the client’s responsibility to understand and keep abreast of what clauses are
stated here. If at any point the client feels they cannot abide by or do not agree with terms stated here, if the client is an existing customer of Spark they should contact us immediately by phone or by e-mail. If they are not yet a customer of Spark they are not permitted to view the contents of this website.

13. Announcements and general points

Unless otherwise specified in writing by the Client, Spark Group shall be permitted to make announcements or statements regarding the fact that it is undertaking or has undertaken work for the Client. Such announcements or statements might include images used in the provision of the Services and/or Works.
Such announcements or statements might take the form of press releases, sections of the Spark web sites, Spark Group printed literature and other marketing material. Spark Group will notify the Client in advance of each such intended use of the Client’s name and images, giving sufficient notice to allow time for written objections to be made by the Client. Spark Group shall take all reasonable account of such objections.
The Client agrees to acknowledge Spark Group as the provider of the Services and/or creator of the Works by the placing of the Spark Group or Spark Green logo in a position to be agreed in writing. Solely for the purposes of giving effect to this condition and for no other purpose, each of Spark Group and the Client hereby freely licence the other to use its respective trade mark(s) (whether registered or not) or trading name(s).
The Agreement sets forth the entire understanding of the parties with respect to its subject matter. Any previous agreements or understandings between the parties regarding its subject matter are superseded by the Agreement.
All representations, warranties, terms and conditions of the Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective legal representatives, successors, and assigns of the parties hereto.
Neither party shall assign the Agreement without prior written consent of the other party, which consent shall not be unreasonably withheld upon any change of control in or transfer of the business and assets of the party wishing to assign.