Terms and Conditions of Trade
Unless otherwise notified by us in writing to you, these Terms and Conditions exclusively govern how Maker & Co Projects Pty Ltd ABN: 266 187 021 40 (us or Maker & Co) will provide services (Services) to you (you or The Client) in respect to various projects (each a Project). Please read them carefully. It is a condition of you engaging us to provide Services, that you comply with these Terms and Conditions. These Terms and Conditions may change in relation to future projects we work on for you. Where we change these Terms and Conditions, we will notify you in writing and we may post the changes on our website at http://makerandcodesign.com.au (Website).
Engagement: You may engage us to provide Services in relation to a Project by signing and returning a Project proposal to us or otherwise confirming in writing that you wish to engage us for the Project (email to suffice) (Proposal). We will commence work on the Project in accordance with the schedule set out in the Proposal or if there is none, after you engage us, according to our capacity.
Quotations and Additional Expenses: All fees (Fees) and expenses (Expenses) relating to our Services for the Project (together the Total Project Estimate) will be set out in the Proposal, are minimum estimates only and provided on the basis of your instructions on the required scope of the Project. If during the course of the Project, the scope of the required Services materially changes, we reserve the right to charge you additional and reasonable Fees and Expenses (Additional Charges). We will discuss all Additional Charges with you and you agree to reimburse us for all agreed Additional Charges charged by us to you.
Third Party Resources and Licence Fees: Unless specified in the Proposal, you are responsible for paying (or reimbursing us) for all third party resource and licence fees relating to the Project which may include but are not limited to:
- stock imagery, video, audio, plugins and themes required for the Project;
- consumable material utilised as part of the Project; and
- licence fees for resources and accounts for the Project.
Client Obligations: You agree to supply us with all content, material and other necessary information (such as online logins) we may require from you to carry out the Services for the Project, in a timely and complete manner (Client Content) and hereby grant us a licence to use the Client Content to provide our Services. You warrant that you have obtained all necessary third party licences and permissions to allow us to use the Client Content for the Project and that our use of the Client Content will not infringe the rights of any third party or any law. Where we work on a naming or branding Project, you are solely responsible for ensuring that you can legally use names and brands in territories you wish to use the names and brands. You agree that our Services do not extend to legal clearances for the names or brands and that we do not guarantee that any name or brand we develop will be able to be formally registered as a trade mark.
Revisions: We include three rounds of changes for each deliverable set out in the Proposal (Deliverables). We reserve the right to charge Additional Charges where you request more than three rounds of changes and will charge on an hourly basis in accordance with our current professional rates set out in the Proposal.
Approval and Sign Off: You will be requested to approve Deliverables from time to time. You must notify us whether you approve a Deliverable within 7 days of delivery in writing either by use of a ‘sign-off form’ or otherwise (for example, by email). If you fail to notify us within 7 days, your approval will be deemed given. It is your responsibility to carefully check all details, content, design and functionality of Maker & Co work before approving work or authorizing printing (this includes, but is not limited to; design, spelling, grammar, illustrations, images and quantity). You agree that you will be charged by the hour at the rates set out in the Proposal for any changes we complete after you give approval or approval is deemed given in respect of any Deliverable. You agree that we are not responsible or liable for any errors contained in the Final Deliverables after they have been approved by you.
Payment Schedule: Unless otherwise stated in the Proposal, you agree to pay a deposit of 50% of the Total Project Estimate (Deposit) prior to commencement of the Project and acknowledge that we will only schedule and/or commence work on the Project, once the Deposit has been paid. You then agree to pay the balance of the Total Project Estimate plus all Additional Charges within 7 days of delivery by us of the final versions of the Deliverables (Final Deliverables). Notwithstanding the foregoing, you agree that if the Project incorporates website development Services, you will be required to make a further progress payment as directed by us prior to the commencement of the website development services and the balance payment prior to the ‘go live’ date of the website. Subject to any rights you may have as a Consumer under the Australian Consumer Law or otherwise at law, all deposits and instalments are strictly non-refundable. Unless stated, all Fees and Expenses payable under these Terms and Conditions are inclusive of any GST.
Delayed Payment: ‘Time is of the essence’ when making payments under these Terms and Conditions. We reserve the right to charge Interest on any and all overdue payments under these Terms and Conditions. For the avoidance of doubt, Interest accrues on any outstanding amounts from the day immediately following the invoice payment due date, until payment in full is received. ‘Interest’ means interest at the rate of 5% above the rate set down from time to time under section 2 of the Penalty Interest Rates Act 1983 (Vic). If you fail pay an invoice in full by the relevant due date, wemay refer the debt to a debt collection agency or a solicitor (where you agree to indemnify us for any costs or expenses incurred in recovering the overdue amounts) or suspend performance of the Services and our obligations under these Terms and Conditions.
IP Ownership: We retain ownership of all Maker & Co IP subject to any rights we grant to you under this section. ‘Maker & Co IP’ means all IP we own or create either in relation to these Terms and Conditions or otherwise including the IP in native artwork files and all draft Deliverables and works for all Projects or otherwise created in the course of Maker & Co’s business (Developed IP). For the avoidance of doubt, Developed IP and Maker & Co IP is not to be used by the Client. You acknowledge that the Final Deliverables may incorporate IP owned by a third party (‘Third Party IP’)
IP Usage: Upon full payment of all monies due under these Terms and Conditions, we shall grant you a perpetual, exclusive, worldwide, transferrable, royalty free licence to use the Final Deliverables in relation to your business, excluding any Third Party IP.. Unless we advise you otherwise in writing, you are responsible for acquiring, maintaining and complying with the terms of all relevant licences to use third party IP as part of the Final Deliverables. You have an option to purchase (whereby we shall assign to you) all native (working) files used in the design and development of Final Deliverables at a rate of 300% of the equivalent charges for those Final Deliverables as set out in the Proposal or otherwise agreed in writing. You hereby provide us with consent to use your trade marks on the Website for the purpose of promoting you as a client of Maker & Co and to use the Final Deliverables on the Website, third party websites and social media accounts, for any promotional, marketing or demonstrative purpose. You agree that third parties are restricted from modifying, altering, adapting or otherwise changing the Final Deliverables (Modifications) and that you must engage us to carry out any Modifications unless otherwise agreed by us.
Archiving/Retrieval: Whilst we use endeavours to store or archive files created or used in the Project (Project Files), we do not provide any guarantee that you will be able to retain Project Files from us in the future. Upon completion of our Services for the Project, you agree to be solely responsible for the archiving of Project Files.
Print Management Terms: We recommend you view a professionally printed copy of each print file, printed by the same printer engaged in the final job and on the chosen stock, before proceeding with printing. This is because colours on the screen or printed by us may not be identical to colours in the final print. A number of factors can contribute to this including printer calibration, various paper types, stocks and types of paper coating. If engaged to arrange printing for you, we will not commence printing until printing fees are paid by you in full. If you are not satisfied with any printing arranged by us, you should notify us within three (3) days of receiving the printing, and return the printing to us (at your cost) within ten (10) days of receipt for assessment.
Sub-Contractors: You agree that we are entitled in our discretion to sub-contract our Services for the Project to appropriately skilled third parties including, but not limited to web development, marketing, photography, and creative services providers. If a sub-contractor’s fee is to be charged to you in addition to the Total Project Cost quoted in the Proposal, we will seek your prior consent before retaining their services. We are not responsible or liable for the services of any third parties independently engaged you, or by us at your request, that are involved in the Project and the supply of any Deliverables.
Cancellation of Projects and Termination: A party may cancel the Project and terminate these Terms and Conditions by notice in writing to the other party if:
- the other party commits a material breach of these Terms and Conditions that is capable of remedy (including failure to pay any amount due under these Terms and Conditions) and fails to remedy that breach within 14 days after receiving notice from the other Party to do so;
- the other party commits a material breach of these Terms and Conditions that is not capable of remedy; or
- the other Party suffers an Insolvency Event (as defined in the Definitions section below) on the understanding that where applicable, a party’s exercise of termination rights under this clause are stayed until such time as they are otherwise enforceable under the Corporations Act2001(Cth).
We may cancel the Project and terminate these Terms and Conditions if:
- you stop communicating with us regarding the Project, for a period of 30 days or more;
- you delay the progression of the Project due to any act or omission of yours or your representatives, for a period of 30 days or more; or
- we consider that there is no longer a sense of mutual confidence and trust between us and you in relation to the provision of Services for the Project.
Upon termination of these Terms and Conditions:
- our obligation to complete our Services on the Project ceases;
- each party’s rights and obligations accrued prior to termination are not affected;
- within 7 days of termination, you must pay us our Fees for Services rendered up to and including the date of termination as well as all Expenses and Additional Charges that we have incurred or committed to incur up to and including the date of termination (such final amount to be determined in our reasonable discretion);
- within 7 days of termination, you must also pay us an administration fee equal to 20% of the remaining unbilled Fees set out in the Proposal (which is a genuine pre-estimate of the Loss we will suffer due to the cancellation of the Project, for example rescheduling costs and loss of opportunity costs);
- each party must immediately return to the other party (or destroy or delete as the other party directs) all Confidential Information (as defined below) of the other party in its possession or control, except to the extent that the party needs to keep such information to comply with its record-keeping obligations; and
- we reserve the right to revoke or vary any licences granted to you to use any Final Deliverables.
Client Liability: You agree that you are liable for and indemnify us against any Loss (as defined below) or Claim (as defined below) suffered by us or our representatives as a result of any negligent or unlawful act or omission or in respect of any breach by you of these Terms and Conditions.
Maker & Co Liability to Consumers: This paragraph only applies if the Client is a Consumer (as defined below). We warrant that we will provide the Services with due care and skill and in accordance with any Consumer Guarantees (as defined below). To the extent permitted by law, our liability to you for any Loss or Claim suffered by you in respect of any of our acts or omissions under or in connection with these Terms and Conditions, including in respect of our failure to comply with any Consumer Guarantees, is limited to, at our election:
- supplying the Services again; or
- paying the cost of having the Services supplied again,
in respect of the Project the act or omission directly relates to.
Maker & Co Liability to Non-Consumers: This paragraph applies if you are not a Consumer. We warrant that we will provide the Services with due care and skill however do not make any warranties or guarantees that the Services will be suitable or fit for any particular purpose, including the purpose for which those Services are ordinarily provided. We are liable for and indemnify you against any Loss or Claim suffered by you in respect of any breach by us of these Terms and Conditions, to a maximum amount equal to the Total Fees, Expenses and Additional Charges actually paid by you to us for the Project the breach directly relates to.
Implied Terms: To the extent permitted by law and without restricting any rights you may have as a Consumer, as outlined above, we hereby exclude any condition or warranty in relation to our provision of the Services.
Confidentiality: The parties acknowledge and agree that they must not disclose the other party’s Confidential Information to any person unless otherwise provided for in these Terms and Conditions, and only use the other party’s Confidential Information in order to exercise their rights and obligations under these Terms and Conditions. Each party must not disclose the Confidential Information of the other party except to that party’s personnel or professional advisers on a ‘need to know’ basis, with the consent of the other party, as required by law or as expressly permitted by these Terms and Conditions.
Force Majeure: We shall not be liable for any failure or delay in supply or delivery of Services where such failure or delay is wholly or partly due to any cause or circumstances whatsoever outside our reasonable control including but not limited to war, strikes, lockouts, industrial disputes or unrest, government restrictions or transport delays, fire, power outages, failure attributable to hosting suppliers, breakdown of plant, theft, vandalism, riots, civil commotions, accidents of any kind or act of terrorism.
General: Any rights and obligations under these Terms and Conditions, which by their nature would reasonably continue beyond the expiration or termination of these Terms and Conditions, will survive the expiration or termination of these Terms and Conditions. These Terms and Conditions constitutes the entire agreement between parties for this Project and cannot be altered except in writing signed by both parties. If any provision of these Terms and Conditions is determined for any reason to be unenforceable or invalid, that provision will be read down and if not capable of being read down, then it will be deemed to be severed from these Terms and Conditions. These Terms and Conditions will be governed by and construed in accordance with the laws of Victoria, Australia. The parties submit to the exclusive jurisdiction of the courts of Victoria, Australia.
Definitions:
In these Terms and Conditions:
Australian Consumer Law means the Competition and Consumer Act 2010 (Cth) Schedule 2.
Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature.
Confidential Information means all confidential, non-public or proprietary information exchanged between the parties in relation to these Terms and Conditions, including trade secrets, IP, know-how, business and financial data, policies, plans, databases, client lists, reports and the existence, nature and terms of these Terms and Conditions, disclosed by any means.
Consequential Loss means special, incidental, indirect or consequential damages, loss of revenue, anticipated savings, profits, goodwill, reputation, interest or business, but specifically excludes legal and other professional costs of the parties.
Consumer means the Client where the Client acquires the Services in relation to a Proposal and:
- the amount payable for the Services under the Proposal does not exceed $40,000;
- the Services under the Proposal are of a kind ordinarily acquired for personal, domestic or household use or consumption; or
- the Client is otherwise defined as a Consumer under the Australian Consumer Law.
Consumer Guarantees means the consumer guarantees specified in the Australian Consumer Law.
Loss means loss, damage, liability, charge, expense, payment or cost of any nature or kind, including all legal and other professional costs (calculated on an indemnity basis) but excludes Consequential Loss).
Insolvency Event means, in relation to a party, any one or more of the following events:
- the party is subject to any scheme of arrangement or compromise; or
- an order is made for it to be wound up;
- an administrator, receiver, manager or a liquidator is appointed to the party pursuant to the Corporations Act 2001 (Cth); or
- If the party is insolvent or may be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).
IP means all IP rights wherever in the world subsisting, in relation to trade marks, copyright, patentable inventions and designs, whether existing now or in the future, and whether or not registered or registrable, and includes any rights subsisting in or relating to trade secrets, know-how, databases and Confidential Information.