FIX8 Design - Terms & Conditions of Trade
Below are FIX8 Design’s Terms and Conditions of Trade, that have been construed under Australian Law and apply to all Clients; individuals, businesses or companies who engage the Services of FIX8 Design and; its contractors, subcontractors and subsidiaries; and to its employees, unless otherwise agreed to by both parties in writing. These Terms and Conditions of Trade apply to all contracts entered into by a Client with FIX8 Design for Services and Products supplied by FIX8 Design to the Client. FIX8 Design (“us”, “we”, “it” or “our”) operates the www.fix8design.com.au website and may hereinafter be referred to as “Supplier”.
Please read these Terms and Conditions of Trade thoroughly and ensure you understand them before requesting the Service of FIX8 Design. By requesting supply of Goods such as, but not limited to products and Services from FIX8 Design, you agree to these Terms and Conditions of Trade, and you are aware that by requesting supply of Goods from FIX8 Design, you are entering into a legally binding contract – and thus payment is required within fourteen (14) days of being issued an invoice for sale of Goods requested by, and supplied to the Client as outlined in the definitions below. The use of any artwork or any other products provided by FIX8 Design prior to payment—and unless otherwise agreed to, by the Supplier to the Client in writing—is illegal. For more information visit: http://www.copyright.org.au/information
1.1 “Supplier shall mean “FIX8 Design”, its successors and assigns or any other person acting on behalf of and with the authority of FIX8 Design.
1.2 “Client” Shall mean the Client (or anybody acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form provided to the Client by the Supplier.
1.3 “Goods” shall mean any form of Goods supplied by the Supplier to the Client including advice and recommendations. (And where the context so permits shall include any supply of Services and/or products such as artwork and websites as hereinafter described) and are as described on the invoice/s, quotation/s, work authorisation/s or any other forms as provided by the Supplier to the Client.
1.4 “Service and Services” Shall mean all Services supplied to the Client by the Supplier. And includes any advice or recommendations (and where the context so permits, shall also include any supply of Goods as they are defined in clause 1.3 above).
1.5 “Price shall mean the Price payable for the Goods as agreed between the Supplier and the Client in accordance with Clause 4 of this contract.
1.7 “Design Brief” shall mean a document for a design project developed by the Supplier in consultation with the Client which outlines the deliverables and scope of the project including any Goods, timing and budget.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Within this agreement there is nothing that is intended to have the effect of contracting out any applicable provisions of the “FTA” or the “TPA” in any of the States of Australia, except when permitted by those Acts if and when applicable.
3.1 Where the Client is the recipient of instructions from the Supplier for the supply of Goods and/or the Clients acceptance of Goods supplied by the Supplier shall constitute that the Client accepts all of the Terms and Conditions of Trade outlined herein.
3.2 Where multiple Clients have entered into this agreement, All Clients of the Supplier shall be jointly and severally liable for all payments of the Price for the Goods supplied.
3.3 Upon the Supplier’s receipt in writing of the Client’s acceptance of these Terms and Conditions of Trade then the Client is bound by these Terms and Conditions of Trade and can only amend this agreement with the written consent of the Supplier.
3.4 The Supplier is to be supplied within fourteen (14) days written notice from the Client if any changes are made to the Client’s name or personal details (including but not limited to, changes made to the Client’s business practice, contact numbers including facsimile, and phone numbers as well as the Client’s business or residential address, and email address/addresses. The Client accepts liability for any loss incurred by the Supplier as a result of the Client’s failure to comply with this clause.
3.5 Goods are supplied by the Supplier only on the Terms and Conditions of Trade as outlined herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that support to override these Terms and Conditions of Trade.
3.6 The Supplier will attend an initial consultation with the Client via phone, email, video conference or in person. Information will be collected during this consultation regarding the Client’s design and/or other business requirements to be provided by the Supplier and a Design Brief will be constructed with the Client adhering to the following terms:
(a)The Client acknowledges that before any work is to commence that the Client is responsible for approving the art and design work or any other form of products or Services to be performed or carried out by the Supplier for the Client as indicated in the Design Brief and is held accountable for ensuring the accuracy and suitability; including but not limited to; design; spelling; grammar; illustrations; images; quality and correctness of colour.
(b) The Client’s final accepted proof is the artwork that will be submitted for prints and/or web construction. There will be no reprints or web development at the expense of the Supplier or its subsidiaries.
3.7 Any additional work, revisions, or variations – outside of the original Design Brief will be charged at the flat rate of $60 per hour (ex GST) to be billed in 15 minute increments (as outlined in clause 4.2), with the exception of one set of minor changes upon the Clients review of the work first submitted to the Client according to the approved Design Brief. Minor changes include, but are not limited to; small typographic and textual changes, adjustments to image placements, colour schemes, or any navigational features on a website. Any changes made following this first set of changes will be charged accordingly.
3.8 The Supplier will assume the Client has accepted the original draft as final and complete if no request for changes or ammendments has been received from the Client within 14 days of the Client having been supplied the Goods, and will be invoiced for the original draft/Goods supplied accordingly.
3.9 The Client accepts that all turnaround time frames indicated via a quotation in writing, or via verbal communication are estimates only, and as such no artwork supply; and/or supply of artwork printing; and/or website completion; or of any other Goods delivery dates are guaranteed.
3.10 Clients are accountable for errors or omissions, as well as any copyright violations when supplying their own artwork in the form of files or images for printing and adhere to the following terms and requirements:
(a) Clients who choose to submit their own artwork, files and or images are solely responsible for the end result of printing. The Supplier is not responsible for checking for errors in artworks or proof reading a Clients work when such works are supplied by the Client.
(b) Clients are reminded that when artwork is trimmed, the bleed cut can vary in position of up to 2-3mm, hence a 7mm internal margin from the bleed line is required when supplying own artwork, and all blacks for printing purposes should be converted to rich blacks other than when purely for text.
(c) Clients who supply their own art work accept all responsibilities for any violations of copyright under Australian copyright laws. The Supplier does not assume any responsibility for such violations whereby the artwork is supplied by the Client. For more information visit http://www.copyright.org.au/information
3.11 For all Client's websites designed and hosted by the Supplier, the Client allows the Supplier to include a small credit and/or a link to the Supplier’s own website for self-promotional purposes, either in the footer of the Clients website, or somewhere at the bottom of the page/s of the website.
3.12 While the Supplier makes every effort to build the Client's website/s according to the best practices of Search Engine Optimisation (SEO) at the time of construction, the Supplier does not guarantee any level of search engine rankings or positions of a Client's website in the search results of popular search engines such as, but not limited to Google; nor does the Supplier guarantee the time frame in which it will take for search engines to list the website in its results for any given search queries; nor does the Supplier guarantee the effectiveness of any key words / key phrases used by the Supplier or given by the Client to be used in the Client’s website meta data or for any purpose relating to SEO.
3.13 The Client accepts that they are responsible for any obligations imposed by law that may arise due to any content that is contained within their website/s.
4. Price and Payment
4.1 At the sole discretion of the Supplier the Price is to be either:
(a) As indicated on quotations and/or invoices in respect of Goods supplied to the Client by the Supplier; or
(b) the Price quoted by the Supplier (subject to clause 4.2) which shall be binding upon the Supplier once the Client has accepted the Supplier’s quotation in writing within fourteen (14) days.
4.2 In the event that:
(a) the Client requests any variation or amendments to original Design Brief that was supplied to the Supplier by the Client; or
(b) the original project outcome is altered; or
(c) further artwork is requested;
then the Supplier reserves the right to change the Price originally quoted or issue additional invoices where applicable.
4.3 At the Supplier’s sole discretion:
(a) a deposit may be sought before work commences.
(b) Whereby the Client remits deposit funds to the Supplier, the Client is accepting in full the Terms and Conditions of Trade as outlined herein and entering into a legally binding contract with the Supplier and is subject to (clause 4.5 and 4.6).
4.4 All work carried out by the Supplier for the Client including all experimental work shall be charged to the Client respectively.
4.5 At the Supplier’s sole discretion:
(a) payment shall be due on the delivery of the Goods; or
(b) payment shall be due before delivery of the Goods
4.6 Time for payment for the Goods shall be of the essence. Payment shall be due fourteen (14) days following the date of the invoice unless otherwise stated by the Supplier on the invoice or in any other form; or when agreed to in writing between the Supplier and the Client.
4.7 Payment will be made by the method agreed to between the Client and the Supplier and as indicated on the original invoice.
4.8 Except when they are expressly included in the Price GST, any other taxes and duties that may be applicable shall be added to the Price.
4.9 The Supplier reserves the right to not supply any Goods or Services until payment has been received in full from the Client.
4.10 The Supplier reserves the right to cancel work and delete any work done including websites with any Client who defaults on payment within fourteen (14) days of being invoiced.
5. Delivery of Goods
5.1 At the Supplier’s sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at the Supplier’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by the Supplier or the Supplier’s nominated carrier.)
5.2 At the Suppliers sole discretion the costs of delivery are:
(a) In addition to the Price; or
(b) For the Client’s account
5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then the Supplier shall be entitled to charge a reasonable fee for delivery.
5.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
5.5 The failure of the Supplier to deliver shall not entitle either party to treat this contract as repudiated.
5.6 The Supplier shall not be liable for any loss or damage whatsoever due to failure by the Supplier to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the Supplier’s control. (Please also refer to clause 17.7)
6.1 If the Supplier retains ownership of the Goods nonetheless, all risk for Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery to the Client, but prior to ownership passing to the Client, the Supplier is entitled to receive all insurance proceeds payable for the Goods. The production of these Terms and Conditions of Trade by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
6.3 The Supplier shall not accept liability for any errors or omissions arising out of a Clients oversight or a misinterpretation of any requirement given verbally by the Supplier to the Client.
6.4 Due to the nature of CMYK printing colours versus electronic RGB screen colours, there may be some colour variations between screen artwork and the printed equivalent artwork. The Supplier shall not accept liability for any colour variations, and there will be no re-prints at the Supplier’s expense.
7. Use of Goods supplied
7.1 Where the Supplier agrees to supply a Client with temporary artwork and design such as, but not limited to for marketing and promotional purposes that run for a certain promotional period, then such artwork and design shall remain the property of the Supplier. At the sole discretion of the Supplier the use/s of the artwork and design supplied is to cease at the end of the period of time that the Goods are required for based upon their promotional time period and the dates they are required to run between or at the end of the Goods distribution. At the Supplier’s sole discretion the rights of ownership may be passed from the Supplier to the Client in writing at any time that is mutually agreed between both parties.
8.1 The Supplier and the Client agree that use of the Goods shall not be permitted until:
(a) The Client has paid the Supplier all amounts owing for the particular Goods; or the Client has agreed to pay the Supplier within fourteen (14) days of having recieved the Goods; and
(b) the Client has met all other obligations due by the Client to the Supplier in respect of all contracts between the Supplier and the Client.
8.2 Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until that has occured the Supplier’s ownership and rights in respect of Goods shall continue.
8.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until the Supplier shall have received payment and all other obligations of the Client are met; and
(b) Until such time as rights to use the Goods shall pass from the Supplier to the Client the Supplier may give notice in writing to the Client to return the Goods to the Supplier. Upon such notice the rights of the Client to obtain any rights to use the Goods or have any other interest in the Goods shall cease; and
(c) the Supplier shall have the right to stop the Goods in transit whether or not the delivery has been made; and
(d) if the Client fails to return the Goods to the Supplier then the Supplier or the Supplier’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such a time as the Supplier has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods up to and including the amount the Client owes to the Supplier for the Goods, on trust for the Supplier, and
(f) the Client shall not deal with the money of the Supplier in any way which may be adverse to the Supplier; and
(g) the Client shall not charge the Goods in any way nor grant, nor otherwise give any interest in the Goods while they remain the property of the Supplier; and
(h) the Supplier can issue proceedings to recover the Price of the Goods sold notwithstanding that the use of the Goods had not been permitted; and
(i) During the event that the right to use the Goods is given to the Client, and if the Goods are then converted into other products, the parties agree that the Supplier will be the owner of the end products.
8.4 All designs, concepts, photographs, illustrations and other artworks supplied to the Client by the Supplier remain the copyright and intellectual property of the Supplier. Only upon full payment for Goods supplied by the Supplier to the Client will copyright ownership be transferred to the Client. Intellectual property of those Goods will remain the Supplier's, unless agreed to between the Supplier and the Client in writing. The Supplier and its designers retain the rights to utilise artwork and all design elements for portfolio and self-promotional purposes.
9.1 The Client shall inspect the Goods on delivery and shall within two (2) days of delivery (time being of the essence) notify the Supplier of any alleged defect, shortage in quantity, damage, or failure to comply with the description or quote. The Client shall afford the Supplier an opportunity to inspect the Goods within a reasonable time frame following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions, the Goods shall be presumed to be free of any defect or damage. For defective Goods, which the Supplier has agreed in writing that the Client is entitled to reject, the Supplier’s liability is limited to either (at the Supplier’s discretion) replacing the Goods; or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (Cth); or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to—at the consumer’s discretion—either a refund of the purchase Price of the Goods; or repair of the Goods; or replacement of the Goods.
9.2 Goods will not be accepted for return other than in accordance with 9.1 above.
10.1 To the extent permitted by statute, no warranty is given by the Supplier as to the quality or suitability of the Goods for any purpose, and any implied warranty is expressly excluded. The Supplier shall not be responsible for any loss or damage to the Goods, or any part thereof however arising.
11. Intellectual Property
11.1 All artwork designed by the Supplier in the form of drawn or written Goods for the Client remain the property of the Supplier. The copyright of those designs and drawings and documents shall remain vested in the Supplier and shall only be used by the Client at the Suppliers sole discretion.
11.2 Instructions given by the Client or orders placed by the Client will not cause infringement of any registered patent, trademark or design. And the Client agrees to compensate for any legal cost incurred by action taken by a third party against the Supplier due to such an infringement.
11.3 Artwork in the form of drawn or written Goods including mock-ups, sketches, and dummies supplied to the Client on a speculative basis by the Supplier shall remain the property of the Supplier. They shall not be used for any other purpose other than that instructed by the Supplier. Any ideas obtained from these artworks may not be used without consent from the Supplier. The Supplier will be entitled to compensation for infringement of this agreement.
12. Default and Consequences of Default
12.1 Interest on overdue invoices shall accrue daily from the date when the payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month, and at the Supplier’s sole discretion such interest shall compound monthly at such a rate.
12.2 In the event that the Client’s payment is dishonoured for any reason the Client shall be liable for any dishonour fees incurred by the Supplier.
12.3 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in pursuing the debt including legal costs on a solicitor, and own client basis, and the Supplier’s collection agency costs.
12.4 Without prejudice to any other remedies the Supplier may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Supplier may suspend or terminate the supply of Goods to the Client, and any of its other obligations under the Terms and Conditions of Trade. The Supplier will not be liable to the Client for any loss or damage that the Client suffers because the Supplier has exercised its rights under this clause.
12.5 If any invoice, or account remains overdue after fourteen (14) days, then an amount of the greater of either; twenty dollars ($20.00), or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00) shall be levied for administration fees which sum shall become immediately due and payable.
12.6 Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Supplier becomes overdue, and in the Supplier’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
13. Security and Charge
13.1 Despite anything to the contrary contained herein, or any other rights which the Supplier may have howsoever:
(a) Where the Client and/or the guarantor (if any) is the owner of land, reality or any other asset capable of being charged, both the Client and/or the guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, reality or any other asset to the Supplier or the Supplier’s nominee to secure all amounts and other monetary obligations payable under these Terms and Conditions of Trade. The Client and/or the guarantor acknowledge and agree that the Supplier (or the Suppliers nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Supplier elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or guarantor (if any) shall indemnify the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own Client basis.
(c) The Client and/or the guarantor (if any) agree to irrevocably nominate, constitute and appoint the Supplier or the Supplier’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.
14.1 The Supplier may cancel any contract to which these Terms and Conditions of Trade apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice, the Supplier shall repay to the Client any sums paid in respect of the Price. The Supplier shall not be liable for any loss or damage whatsoever that may arise from such a cancellation.
14.2 In the event that the Client requests cancellation of a Contract, The Supplier will determine the cost of Goods and Services provided. The Client will be invoiced this amount minus any deposits already paid on the project to date.
14.3 In the event that the Client cancels delivery of Goods, the Client shall be liable for any loss incurred by the Supplier (including, but not limited to any expenses or loss of profits) up to the time of cancellation.
15. Privacy Act
15.1 The Client and/or the guarantor/s agree for the Supplier to obtain from a credit reporting agency a credit report containing personal credit information about the Client and guarantor/s in relation to credit provided by the Supplier.
15.2 The Client and/or the guarantor/s agree that the Supplier may exchange information about the Client and the guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to access an application by Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the credit worthiness of Client and/or guarantor/s.
15.3 The Client consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by the Supplier for the following purposes and for other purposes as shall be agreed between the Client and Supplier or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by the Supplier, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
15.5 The Supplier may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) to allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
16. Unpaid Supplier’s Rights
16.1 Where the Client has left any item with the Supplier for repair, modification, exchange or for the Supplier to perform any other Service in relation to the item and the Supplier has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Supplier shall have:
(a) a lien on the item; and/or
(b) the right to retain the item for the Price while the Supplier is in possession of the item; and/or
(c) a right to sell the item.
16.2 The lien of the Supplier shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
17.1 If any provision of these Terms and Conditions of Trade shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 These Terms and Conditions of Trade and any contract to which they apply shall be governed by Australian law and are subject to the jurisdiction of the courts of which they are upheld.
17.3 The Supplier shall be under no liability whatsoever of the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Supplier of these Terms and Conditions of Trade.
17.4 In the event of any breach of this contract by the Supplier the remedies of the Client shall be limited to damages, which under no circumstances shall exceed the Price of the Goods.
17.5 The Supplier may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.6 The Client agrees that the Supplier may review these Terms and Conditions of Trade at any time. If, following any such review, there is to be any change to these Terms and Conditions of Trade, then a Clients continued use of Services by the Supplier shall constitute the Clients acceptence of these changes.
17.7 The Supplier shall not be liable for any default due to any unforeseeable circumstances including but not limited to: any act of God, war, terrorism, strike, lock-out, industrial action, government restrictions, transport delays, fire, flood, storm, power outages, other natural disasters, failure attributable to website and domain hosting providers or other third parties, breakdown of plant, theft, vandalism, riots, civil commotion, accidents of any kind or other event/s beyond the reasonable control of the Supplier.
17.8 The failure by the Supplier to enforce any provision of these Terms and Conditions of Trade shall not be treated as a waiver of that provision, nor shall it affect the Supplier’s right to subsequently enforce that provision.
By using our website and/or engaging our Service/s, you hereby agree to these Terms and Conditions of Trade, and you agree that errors and/or omissions that may arise in these Terms and Conditions of Trade are excepted. These Terms and Conditions of Trade are subject to change at any time without notification by FIX8 Design. Your continued engagement with FIX8 Design and our Services; and your continued use of our website: www.fix8design.com.au following the posting of changes to these Terms and Conditions of Trade will be deemed your acceptance of any changes that may occur. We advise you to periodically check for changes to these Terms and Conditions of Trade.
By engaging our Service/s, you hereby agree to FIX8 Design's Terms and Conditions of Trade as outlined herein. You agree that errors and/or omissions that may arise in the text within these Terms and Conditions of Trade are excepted.
If you have any questions regarding the Information set out in these Terms and Conditions of Trade please email FIX8 Design at: email@example.com