TERMS AND CONDITIONS OF TRADING
1.1
“Client” means any company, subsidiary, firm or individual or
agent thereof who orders any service offered and supplied by the Company.
1.2
“the Company” means XDEV Australia Pty Limited, ACN 133 718 984.
1.3
“Services” means any graphic design, website design, website
development, website programming, e-commerce solutions, web applications or any
other service offered to and supplied to the client by the Company.
1.4
“Proposal” means the written Quotation of the services to be
provided.
1.5
“Project” means the Services to be undertaken by the Company as
outlined in the Proposal and any variation to the Proposal as agreed from time
to time.
1.6
“Quotation” means the written Quotation of the Services to be
provided.
1.7
“Stage” means the stage or stages of the project as referred to
in the Proposal.
1.8
“Invoice” means Tax Invoice payable for all works completed as
per the client approved Quotation.
1.9
“Completed” means all works outlined on the Invoice are complete
and operational irrespective of Content provision or population.
a)
Content is not the responsibility of the company nor at any time
will the Company allow it to hinder or delay the payment of an Invoice for
works rendered as per the client approved Quotation. Upon works being completed,
the final remainder payment of an Invoice is required to be settled in order
for the Company to send the website live to the World Wide Web and/or release
final artwork files. Furthermore, if the client is not ready to send their
website live and/or receive final artwork files by the project completion date
due to their own delays in content provision, artwork approvals and any other
delaying factors hindering works to be rendered by the Company, an Invoice will
be issued with strict payment terms of (14) fourteen business days unless
stated otherwise or unless a 30 day commercial account is in place (subject to
the approval of the Company).
As per definition in Section1.01 - 1.9 “Completed” means all
works agreed to be produced on the Invoice have been produced. Completed does
not mean Content in place, Content is the responsibility of the Client. If the
Client fails to provide us with Content by the project completion date, image
placeholders and dummy copy/text will be used to populate the pages until such
time the Client provides us with the live Content. The Company deems a project
complete once all items listed on the Invoice have been produced. It is
important the Client understands this clause and takes responsibility of the
Content they wish to add to their website or artwork the Company agrees to
produce for them. The Company however agrees to apply Client supplied content
to a website and/or artwork files up to 30 days after the Project completion
date. After 30 days a Project rescheduling fee will be in effect $175+GST and
the time required to upload or apply Client supplied content will be billed
accordingly and additionally based on our current studio hourly rate of
$175+GST.
b)
Entire Agreement
2.1
These Conditions supersede all previous agreements in respect of
its subject matter and embodies the entire agreement between the parties. No
variation or qualification of these Conditions or of a contract arising from
here shall be valid unless agreed in writing by a Director of the Company.
3.1
No contract shall arise between the Company and Client unless
and until the following occurs:
a)
The Company has provided a written proposal to the Client;
b)
The Client accepts and executes that proposal in writing;
c)
The Client makes payment of all upfront fees as outlined in the
proposal to the Company;
d)
The Company advises the Client in writing of its acceptance of
the agreement.
4.1
The Company shall perform the Services in a timely manner to the
extent that is within its control to do so.
4.2
If the Company becomes aware of any matter which will change or
which has changed the scope or timing of the Services Then it will give notice
to the Client and the notice will contain, as far as practicable in the
circumstances, particulars of the change. The Client agrees that the Company is
exempt from any penalty payments the Client deems due to them based on
unexpected delays in service and understands the quoted time frames are
estimations only.
4.3
Projects that appear to be dormant or inactive after 120 days of
Client interaction will be moved out of our active production schedule and
relocated to our 'Idle Projects' queue. Once a project is relocated to this
queue there will be a project rescheduling fee of 5% of the total project cost
to reactivate the project and allow it to renter our active production queue
should the Client request the Company to recommence works on the Clients original
order.
5.1
The Company will not be responsible for any changes to Services
not carried out by the Company, nor for any impact that this may have on the
continuity of the Project. It is the responsibility of the Client to ensure
that the Company is advised of any such performed by third parties.
6.1
In consideration of the promise by the Company to perform the
Services pursuant to the Proposal, the Client promises to pay to the Company
the Fees and costs outlined in the Proposal, and all additional costs.
6.2
The Company shall be paid for Services such fees as set out in
clause 6.1, within fourteen (14) days from the date of the Invoice, unless
otherwise agreed in writing. In the case of continuing work, the Company will
submit an Invoice after the first Stage and thereafter at the end of each Stage
of the Project.
6.3
Without derogating from the strict effect of clause 6.2 and all
other rights and remedies of the Company, if any money payable by the Client is
not paid when due, it shall bear interest from the due date of payment at five
(5) per cent per month, calculated daily.
6.4
If the client requests, prior to the completion of Services,
either that the Services be postponed or that the Services should not be
completed, or if the contract terminates for any reason other than for breach
of the contract by the Company, the Company shall be entitled to be remunerated
in respect of all work that has been undertaken, and all additional expenses
incurred, up to the date of such notification by the Client. Such remuneration
shall be on a quantum merit basis.
6.5
Upfront payment for the amount of 50% is required in order for
the Company to commence production on any given project. The remainder 50% of
the Invoice outstanding is due for payment once all services outlined on the
Invoice have been produced.
6.6
Final remainder payment of an Invoice is due prior to sending
any website live to the World Wide Web and/or releasing final artwork files.
This payment can be made via EFT, Credit Card or Cheque payment. The Company
will not send any website live or release any artwork files until the Clients
account is settled.
7.1
The Company shall be entitled to charge fees in addition to
those quoted in the Proposal in respect of:
a)
Additional work carried out by the Company arising from but not
limited to alterations to the original brief, as requested by the Client. In
this case, the additional charge will be calculated based on an hourly fee;
b)
All costs and expenses incurred by the Company in providing the
services, that may include but are not limited to: typesetting, photography,
image scanning and retouching, illustrative works, artwork, mechanicals,
model-making and any other artwork costs and any out-of-pocket expenses
properly incurred by the Company or its employees, agents or nominees in the
fulfilment of the Order including hotel and travel expenses. For the Company’s
purposes, all such charges and expenses shall be charged to the Client at
actual cost;
c)
Performance of the Services in circumstances other than those
normally pertaining to such a Project, in which case the Company shall be
entitled to reasonable costs in the circumstances; and
d)
The reasonable costs incurred in cases where there is a change
in the Services, timing or order of the Services.
8.1
In this clause the expressions “adjustment note”, “
consideration, “GST”, “supply”, “supplier”, “tax invoice”, “recipient” and
“taxable supply” have the meanings given to those expressions in the A New Tax
System (Goods and Services Tax) Act 1999. For the avoidance of doubt, “GST”
includes any penalties or additional tax imposed in relation to the GST (Goods
and Services Tax).
8.2
Unless otherwise expressly stated, all charges or other sums
payable or consideration to be provided under this agreement are exclusive of
GST.
8.3
Despite any other provision in their document, if GST is imposed
on any supply made under this agreement, the recipient must pay to the supplier
an amount equal to the GST payable on the Supply.
8.4
The recipient must pay the amount referred to in 8.3 in addition
to and at the same time as payment for the supply is required to be made under
this agreement.
8.5
If a supply is made to which GST applies or is varied under this
agreement, the supplier must provide the recipient of the supply a valid tax
invoice or adjustment note at or before the time of payment or variation.
8.6
If the amount of GST paid or payable by the supplier on any
supply made under this document differs from the amount of GST paid by the
recipient, because the Commissioner of Taxation Lawfully adjusts the value of
the taxable supply for the purpose of calculating GST, then the amount of GST
paid by the recipient will be adjusted accordingly by a further payment by the
recipient to the supplier or the supplier to the recipient, as the case
requires.
Section 1.09
Direct
and Indirect Loss
9.1
Any claim for direct or indirect loss incurred by the client arising
out of the performance or non-performance of the Services by the Company,
whether under the law of contract tort or otherwise shall be excluded to the
extent allowed by law.
10.1
The Company does not give any warranty nor accept any liability
in relation to the performance or non-performance of the Services except to the
extent, if any, required by law or specifically provided for in these
Conditions.
10.2
If apart from this Clause any warranty would be implied whether
by law, custom or otherwise, that warranty is to the full extent permitted by
law hereby excluded.
10.3
Nothing herein contained shall be read or applied so as to
purport to exclude, restrict or modify or have the effect of excluding,
restricting or modifying the application in relation to the supply of any goods
or services pursuant to this Agreement of all or any of the provisions of Part
V of the Trade Practices Act 1974 (as amended) or any relevant State Act or
Territorial Ordinance which by law cannot be excluded, restricted or modified.
10.4
The Company agrees to repair a website if it deems the problem
derives as a result of poor workmanship by the Company and if the client makes
their claim within 90 days of the project completion date. Repair work will
only be carried out according to projects specs outlined on the Invoice and not
on aspects of a project that are unrelated to the works of the Company and its
promise agreed upon in the Invoice. Repairs to Content are not covered under
this warranty and are the responsibility of the Client. Additional charges will
apply if repair work is requested to aspects of a project that are outside the
control of the Company and its service offering.
10.5
The Company does not and cannot provide warranty on websites
viewed on browsers not included in our service offering. Website browsers
covered by our 90 day warranty period are all current versions (at that time)
of Safari Mac and PC, Firefox Mac and PC, Google Chrome Mac and PC. All other
browsers are not guaranteed to be operating perfectly and nor do we claim them
to be as our websites are programmed to be optimised in the mainstream browsers
mentioned herein. This warranty period offers cover for up to and including 90
days from the date your website went live to the World Wide Web (www).
11.1
The Client indemnifies and holds harmless the Company in respect
of any claim against the Company caused by or arising out of any act or thing
done by the Company in good faith and purportedly pursuant to a right granted
to the Company under the provisions of these Conditions. The Client indemnifies
and holds harmless the Company in respect to the accuracy of any creative works
in the form of: website design, graphic design, final artwork and files that
are to be published to any medium. The Client understands and acknowledges that
it is the sole responsibility of the Client to ensure accurate proof reading is
carried out prior to the Client submitting an 'Artwork Approval' to the Company
of any works to proceed to print, publish, to air or any medium in which the
creative material is to be displayed.
12.1
Copyright in all proposals, reports, specifications, and other
documents provided by the Company in connection with the Services shall remain
vested in the Company.
12.2
If during the course of providing the Services, the Company
develops, discovers, or first reduces to practice a concept, product or process
which is capable of being patented, then such concept, product or process shall
be and remain the property of the Company and the Client shall not use,
infringe or otherwise appropriate the same without first obtaining the written
consent of the Company.
12.3
If the Proposal provides for the Intellectual Property in the
finished product of the Services to pass to the Client, then such property
shall so pass only upon completion of the Project and the payment of the fees
and costs owed to the Company by the Client.
12.4
If the Company and the Client agree to the assignment of the
Copyright or any other proprietary rights in Services by the Company to the
Client, the Company shall assist the Client in any subsequent application for
design registrations. All costs in connection therewith shall be borne by the
Client who shall also reimburse to the Company any costs or expenses incurred
by the Company.
12.5
It is the responsibility of the Client to carry out any legal
searches, checking and registration of Concepts and Designs. All costs in
connection therewith shall be borne by the Client who shall also reimburse to
the Company any costs or other expenses incurred by the Company.
13.1
Nothing within this Agreement shall prevent the Company from
employing such persons or companies as required by it to perform the Services.
Section 1.14
Termination
14.1
The Company shall be entitled to treat any contract as
terminated if the Client is in breach of any terms or conditions thereof which
in the case of a breach capable of remedy is not remedied within fourteen (14)
days of the Client receiving written notification from the Company indicating
the breach and requiring its remedy. In such an event the company shall retain
the Copyright in Services even if the Company had previously agreed to assign
the Copyright in Concepts and Designs, and in this case the agreement to assign
the Copyright to the client shall be deemed to be revoked.
14.2
Termination due to a breach of these terms and conditions by
the Client pursuant to this clause shall not in any way prejudice such rights
as the Company may have to seek payment for Services rendered or any other
rights provided for under these Conditions.
TERMS OF PROPOSAL
1.1
A Proposal is based on an estimate of the time and resources
that is likely to be required to carry out each stage of the Project. If at any
stage during the Project it becomes apparent that significantly additional time
and resources will be required, you will be provided with a quotation before
the commencement of the extra work.
1.2
The fees and costs quoted for a Project have been estimated
based on the information contained in the Quotation. Any details that are
varied after the approval of a Quotation may impact on the fees and costs that
we have quoted for a Project. The Company reserves the right to charge
additional fees and costs where such changes occur. Any additional fees and
costs will be quoted prior to the commencement of work.
The Client will be responsible for any additional costs above
the professional fees quoted in the Proposal that may include, but are not
limited to:
2.1
Costs such as digital colour printouts, colour photocopies,
discs, computer facilities, file transfers, couriers, local travel and
subsistence. For the purposes of estimating miscellaneous costs, the Company
will itemise these costs and add them to the final Invoice should they be
required.
2.2
Wherever possible the Company will attempt to highlight outside
fees and costs within our Quotation. However, instances may arise where
additional expenses may be incurred.
2.3
Costs for interstate and international travel, when required for
projects, will be passed on to the client and may include airfares,
accommodation, subsistence and any other related expenses at cost. These costs
will be quoted separately.
2.4
Author’s Corrections and client requested artwork changes will
be billed by the hour at a rate of $175/hour +GST unless specified otherwise in
the Quotation or Invoice.
3.1
Our terms of trade are fourteen (14) days from the date of
invoice.
3.2
Clients will be invoiced upfront for fifty (50) per cent of the
entire costs of the Project (including professional fees, and projected costs
and expenses) at the time the Proposal is accepted by the client, for any
projects quoted in excess of $1000. The remainder amount will be payable prior
to (a) go live (b) artwork release. If a project is deemed Complete according
to the Project completion date and the items listed in the Tax Invoice are
fulfilled the Client will have fourteen (14) days to settle their Invoice with
the Company. Failing to pay within our fourteen (14) day terms will result in a
suspended account and the commencement of the seven (7) day grace period
provided to the Client to consider any unforseen communication obstructions.
Day fifteen (15) will mark the commencement of an interest accrual penalty
calculated at five (5) per cent per thirty (30) days on the amount outstanding.
The outstanding account will have interest commence its bearing on day fifteen
(15) from the time of the original submission of the Invoice which will become
day one (1) of the 30 day interest cycles applicable for outstanding accounts.
Failing to cooperate with the Company thereafter will result in the Clients
debt being handed over to our solicitors for further processing and pursuit at the clients expence.
3.3
Projects under $1000 require to be paid upfront and in full
prior to commencement of production by the Company.