Terms of Trade
1. Definitions
In these Terms of Trade:
"Company" shall mean Essentia Group Pty Ltd ABN 52 094 820 603, its employees, sub-contractors, free lance operators, associated agents, partners or third parties.
"Clients" shall mean the individual, business or organisation using the services provided by the Company or instructing the Company to undertake work on his, her or its behalf under these Terms of Trade.
"Services" shall mean any work or matter provided or produced by the Company on the Client"s instructions or undertaken in the course of performing any work in accordance with the Client"s instructions.
"Work" shall mean any communication output using the Intellectual Property of the Company that includes but is not limited to design, artwork, drawings, graphics, images, sketches, illustrations, paintings, photographs, fonts, dummies, models, mock-ups, negatives, interactive design, navigation elements, or any other items included within a project and any associated variations.
"Intellectual Property" shall mean strategies, concepts, processes, procedures, mechanics, devices, methodologies, tools, skills and skill sets, typesetting, source code and software used or developed for the creation of any Work.
"Copyright" shall mean the right to use, reproduce, publish, or sell the finished work under a lifetime license Definitions within this Terms of Trade where written in the singular form include the plural, where written in the plural form include the singular, and variations thereof.
2. Incorporation of Terms of Trade
Any or all Work performed by the Company on the Client"s instructions is performed subject to these Terms of Trade which shall be deemed to be incorporated into any contract or agreement between the Company and the Client whether in writing or verbal. These terms shall override any previous terms of trade and cannot be varied unless agreed otherwise in writing. The Company reserves the right to update these Terms of Trade without notice and advises its clients to check the latest version of these Terms of Trade on the Company"s web site. The Client acknowledges having read these terms of trade and agrees to be bound by them.
3. Estimates
Prior to the commencement of any Work, the Company may provide an estimate specifying the Work to be undertaken to fulfil the Client"s instructions and the Company"s charges for performing the Work. The Company reserves the right to amend its charges to take into account any rise or fall in the cost of performing the Work, including but not limited to any increases in GST and any additional costs incurred by the Company in having to:
a. undertake additional Work as a result of the Client changing its instructions, providing incorrect or inadequate content for the Company to work with and/or requiring the Work to be done urgently
b. undertake Work that is outside the scope of the original brief
c. make changes to the Work deemed by the Company as excessive multiple changes, that being any single major change to the Work, or more than three minor changes to the Work
d. delivery, transport or courier any Work or materials associated with carrying out the Work.
As far as is practical, any significant variation to the estimate will be advised by the Company as soon as it becomes apparent. The client may be presented with a revised estimate.
Delivery, transport and courier costs do not form part of the estimate for performing the Work and will be charged separately where applicable.
4. Commencement of Work
Before commencement of work, a copy of the Company"s Terms of Trade is provided to the Client. Work will not commence until the estimate has been approved and a signed copy of the estimate has been received by the Company. A signed copy of the estimate shall be conclusive evidence of the Client"s acceptance of the Company"s Terms of Trade and agreement to proceed as specified on the estimate and, subject to clause 3 hereof, of the Client"s acceptance of the Company"s estimated charges for performing the Work. In the case of new accounts where the Client does not have a payment history with the Company, the Company reserves the right to request credit references. New Clients will be subject to an Advance Payment Schedule which will be specified on the estimate and tax invoice. On receipt of the initial part payment, Work will commence.
5. Fees for Service and Cancellation
The fee charged for Service shall be a prior agreed amount or an agreed hourly charge-out rate for that project. As far as is possible, the Company shall endeavour to provide estimates to complete the project. However, in the course of the project, should the costs be significantly higher than anticipated, the client may be presented with a revised estimate for its consideration and acceptance. The client may elect to cancel the project if the costs are beyond its pre-determined limit. In this case, all hours worked will be charged up to that point, including work on the original brief and any agreed variations, together with any external costs beyond our control. The client agrees to bring any errors or faults to the attention of the Company within three months of the particular piece of work being handed over to the client. All travel, incidental expenditure and components are covered by the cost estimate for the project, where directly related to the project, unless pre-agreed otherwise.
6. Excess Work
Excess work is defined as any additional work that has to be done outside of the scope of the project briefed or after sign-off, which includes but is not limited to excessive multiple changes to finished art, graphics, architecture, user interface, interactive design, navigation elements, database structures or any other items included within the project and any associated variations. Such Work undertaken is chargeable and the client agrees to pay the appropriate fees.
7. Payment Terms
Unless otherwise agreed, our payment terms are strictly 30 days. For projects extending beyond 4 weeks duration, the client agrees to remit monthly payments based on an agreed amount or for Work done to date, unless pre-agreed otherwise in writing. Payment may be made by cheque or by electronic funds transfer direct into the Company"s account. New clients without an account with the Company will be subject to an Advance Payment Schedule which will be specified on the estimate and tax invoice. External costs charged by third parties immediately incurred by the Company in the course of carrying out the Work are subject to a 7 day payment term. Where clients do not pay within a 60 day period or default on their payments the Company may at its discretion impose an interest penalty as disclosed in the Corporations Act. The current interest rate of 11% may be charged for the entire period of the debt. In addition the client agrees to pay any costs attributed to the collection of any outstanding debt including but not limited to debt collection services and legal costs of debt recovery. The Company also reserves the right to reclaim any material produced for the Client, or in the case of any and all forms of electronic media, recover any materials produced, remove files hosted for use over the internet, intranet or wide area network.
8. Service of notice
Termination of ongoing services shall be made in writing and a notice period of 30 days should be served. Work will cease as soon as is practicable after the notice is received and amounts owing will be invoiced within 30 days. This will include any outstanding or additional costs incurred in terminating the services, and including all external costs incurred in relation to the provision up to termination of services.
9. Litigation
The Company or its suppliers and subcontractors shall be indemnified and held harmless from and against all claims for injury or death to person(s) or damages of any kind (including cost of litigation and legal fees) caused by, arising from or incidental to the services being performed or arising out of the use or the inability to use any software or any other service or product developed by the Company. The laws of The State of Victoria govern these Terms of Trade as any work done shall be carried out within Victoria.
10. Copyright & Intellectual Property
Upon full payment of all invoices issued by the Company, copyright to completed Work created expressly for a specific client by the Company will transfer in the form of a lifetime licence, notwithstanding rights reserved by the Company for its Intellectual Property. The licence for copyrighted Work purchased on our client"s behalf will also transfer, subject to the terms and conditions of the original owner. The Company retains full and total ownership of any Intellectual Property it creates for and on behalf of any client. The Company grants access to such intellectual property as is required by the Client from time to time while they remain a Client of the Company. Such rights and access may be revoked by the Company with 30 days notice given in writing.
11. Confidentiality
The Company will not disclose any confidential information to any other person other than in relation to provision of the agreed services and will not make use of any confidential information for any purpose other than in relation to the provision of the agreed services. All confidential information will be kept secure and protected from unauthorised use, reproduction, access and damage or destruction.
12. Privacy
The Company will take reasonable steps to protect the personal information it holds on behalf of our clients from misuse and loss, and from unauthorised access, modification or disclosure.
13. Liabilities regarding work and material provided
It is agreed that all work and materials created by the Company will be free and clear of all liens and encumbrances and may be lawfully used by the client without infringing, and without limiting the generality of the foregoing, any copyright, trade secret, patent or trademark rights of any third party, unless otherwise stated. The client declares that they have the right or permission to use any materials provided by them for inclusion within any work the Company conducts on their behalf. The client will not hold the Company responsible or liable for but not limited to any legal liability, consequential loss, loss of profits, loss of income, loss of monies in any way related or not related to the Work, within or outside of its control.
14. Promotion
The Company may obtain approval from its clients to use or publish any work created by the Company which is in the public domain, for its own promotional purposes. The client likewise may obtain permission to display the Company"s name but may not display or refer to the Company"s name in any media, documentation, public or private for any purpose without the Company"s written consent. Any unauthorised use of the Company"s name, trade marks or copyrighted material will be in breach of this terms of trade and will be subject to the law.
