Digital Creek Master Services Agreement
1. Parties
This Master Services Agreement (“Agreement”) is between Digital Creek Pty Ltd (ABN 53 644 983 666) (“we”, “us”, “our” or “Digital Creek”) and you, the client named in the Proposal (“you” or “Client”).
2. Background
A. We are a provider of website design, development, hosting, ongoing website management, digital marketing, and related services.
B. We agree to supply Services to you on the terms of this Agreement and each executed Proposal.
3. Structure of Agreement
3.1 Each Proposal forms a separate contract that incorporates this Agreement.
3.2 In the event of inconsistency, the Proposal prevails over this Agreement to the extent of the inconsistency.
3.3 Timeframes in Proposals are estimates only unless expressly stated as fixed and of the essence.
4. Services
4.1 We will provide the Services and Deliverables described in each Proposal with due care and skill.
4.2 Domains: We facilitate registration/renewal as your agent. You are the registrant and must comply with registrar policies (e.g. auDA rules). We have no liability for registrar actions or domain loss.
4.3 Hosting / Website Management: We (or our subcontractors) will host your website. Details, including uptime targets, are in the relevant Proposal or our standard Hosting SLA (available on request).
4.4 We may subcontract Services but remain responsible for their performance.
5. Client Obligations
You must:
- Provide all Client Content (text, images, logos, etc.) promptly, in suitable format, and ensure it does not infringe third-party rights or breach laws;
- Give timely feedback and approvals (within 5 business days unless stated otherwise);
- Maintain confidentiality of any logins or access we provide;
- Comply with all applicable laws (including privacy, spam, and accessibility); and
- Ensure any third-party accounts (Google Ads, Meta, etc.) grant us necessary access.
6. Payment
6.1 All fees are exclusive of GST (which you must pay in addition).
6.2 You must pay invoices by the due date in the Proposal.
6.3 Late payments incur interest at 5% per annum above the Reserve Bank of Australia cash rate target, calculated daily and compounded monthly.
6.4 Quotes are valid for 30 days.
6.5 We may suspend Services (including hosting, campaigns, and access) if any invoice is overdue by more than 7 days, on reasonable prior notice where practicable. A reasonable reconnection fee may apply. Suspension does not relieve you of payment obligations.
7. Intellectual Property
7.1 Background IP: Each party retains ownership of its pre-existing intellectual property.
7.2 Project IP: Upon full payment, we assign to you all copyright and other IP in the custom Deliverables created specifically for you under the Proposal (excluding third-party assets and our tools/templates).
7.3 We grant you a perpetual, royalty-free licence to use our Background IP incorporated in the Deliverables for your ordinary business purposes.
7.4 You grant us a royalty-free licence to use the project (with your branding) in our portfolio and marketing (we will not publish sensitive content without approval).
7.5 Third-party assets (plugins, stock images, fonts, etc.) are licensed to you (or us on your behalf) on the relevant third-party terms. You are responsible for ongoing licence compliance after handover.
7.6 You warrant that Client Content does not infringe any third-party rights and indemnify us against any related claims.
8. Warranties, Liability and Performance
8.1 We warrant we will perform Services with due care and skill.
8.2 No Guarantees on Results: Digital marketing outcomes (rankings, traffic, leads, ROI) depend on factors outside our control (algorithms, competition, market conditions, platform policies). We do not guarantee specific results. No refunds for failure to achieve targets.
8.3 Liability: To the maximum extent permitted by law:
- We exclude liability for consequential loss (including loss of profit, revenue, data, or goodwill);
- Our total aggregate liability under or in connection with this Agreement is limited to the total fees paid by you in the 12 months preceding the claim.
8.4 Nothing in this Agreement excludes liability that cannot be excluded under the Australian Consumer Law.
8.5 We maintain appropriate Professional Indemnity and Public Liability insurance.
9. Suspension and Termination
9.1 Either party may terminate for material breach by the other, if the breach is not remedied within 14 days of notice.
9.2 We may suspend or terminate immediately if you become insolvent or fail to pay overdue invoices after notice.
9.3 Early Termination of Retainers: For ongoing services (Website Management Plans, marketing retainers) with a fixed term, if you terminate early without cause, you must pay 50% of the remaining contract value or our reasonably documented costs/losses (whichever is lower). This is a genuine pre-estimate of our losses (onboarding, opportunity cost, etc.).
9.4 On termination:
- You pay for all Services performed up to the termination date;
- We will provide reasonable handover assistance (at our standard rates);
- IP and confidentiality obligations survive.
10. Hosting & Data
10.1 We will maintain reasonable backups. You are responsible for your own backups where required.
10.2 On termination of hosting, we will provide a data export in a reasonable format (additional fees may apply for complex migrations).
11. Privacy and Confidentiality
Both parties must comply with the Privacy Act 1988 (Cth) and any applicable privacy policy. We will only use your data to provide the Services.
12. Force Majeure
Neither party is liable for delays or failures caused by events beyond reasonable control (e.g. cyber attacks, supplier failures, natural disasters), excluding payment obligations.
13. Disputes
13.1 Any dispute must first be referred to mediation administered by the Queensland Law Society (or nominee).
13.2 If not resolved within 30 days, either party may commence court proceedings.
13.3 This Agreement is governed by the laws of Queensland.
14. General
14.1 Entire Agreement: This Agreement and the Proposal supersede all prior understandings.
14.2 Variation: We may update these Master Terms with 30 days’ notice. Continued use after notice constitutes acceptance for new Proposals.
14.3 Assignment: We may assign this Agreement (e.g. on business sale). You may not without our consent.
14.4 Notices must be in writing (email to the address in the Proposal is sufficient if read receipt or no bounce-back).