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Terms and Conditions - Service Agreement

Please take time to read through our Terms and Conditions thoroughly and ensure you understand them before you commence a project with us. By requesting designs and/or services from Fox Graphix you agree to our Terms and Conditions and you are aware that you are entering a binding contract – payment is required.

  1. GENERAL WORKING AGREEMENT – This document defines the terms and conditions of our working relationship. These conditions, which are construed under Australian Law, are applicable to Fox Graphix (DESIGNER) and _________________ (CLIENT) and should be read in conjunction with other documents and/or the correspondence comprising our offer. The Contract for all forms of graphic design, print management and web based services (SUPPLIES) are to be based on the conditions herein or detailed in the contractual estimate/quotation(s).

 

  1. WORKING/BILLING PHASES – Based on our experience with long-term design communications projects, we have found that it is mutually advantageous to handle each project in logical working/billing phases.

 

Concept revisions, extensive alterations, or a switch in marketing objectives sometimes makes it impossible to accurately estimate in advance the total cost of a project. Planning the work, cost estimating, and billing in several phases permits DESIGNER or CLIENT to adjust for such revisions/or halt work before completion if a project is postponed or canceled. Any canceled project is billed only through phases and/or portions of phases that were actually completed by DESIGNER. For each project, CLIENT will receive a proposal/estimate outlining the project specifications and our proposed scope of services and working/billing phases. Each proposal estimate will contain a project budget, which includes estimated fees for professional services and separate itemized costs for anticipated out-of-pocket expenses.

 

We will begin work upon CLIENT’S approval of the written estimate. Your approval (written or oral) will constitute an agreement between us.

 

  1. PAYMENT/ESTIMATES – CLIENT agrees to pay DESIGNER in accordance with the terms specified in each proposal/estimate. CLIENT will be required to pay 25% of the project cost before work can begin.

 

The CLIENT shall be responsible for payment for all SUPPLIES at the order of DESIGNER or any other person acting on behalf of CLIENT. Such order may be by purchase order, written request or verbal request.

 

Unless otherwise specified, all subsequent balances due are payable upon art approval. Accounts will be rendered either fortnightly as the work proceeds or in stage payments if previously agreed. Payment of all accounts and invoices without retention or discount is required within seven days from the date of invoice, interest being chargeable on overdue accounts at 2% per month above the Average Lending Rate of the Westpac Banking Corporation with an additional $10 per month handling fee. Any rates quoted, or standard schedules included, relate to works within Australia unless specifically stated to the contrary.

  1. DESIGNER will issue one statement only for each invoice submitted.
  2. Unpaid invoices will bring about automatic suspension of any SUPPLIES by DESIGNER, 30 days after invoice date.
  3. DESIGNER cannot be held liable for any loss of business resulting from the termination of any accounts.
  4. DESIGNER cannot be held liable for any potential future loss of business resulting from the termination of any accounts.
  5. DESIGNER cannot be held liable for any loss of business resulting from the termination of any SUPPLIES.
  6. Notwithstanding delivery of SUPPLIES to the CLIENT the title in the SUPPLIES will remain with DESIGNER until the price thereof has been paid in full to DESIGNER provided that the risk of loss or damage to the SUPPLIES will pass on to CLIENT upon delivery.
  7. The CLIENT acknowledges that it shall be in possession of the SUPPLIES solely as bailee for DESIGNER until payment of the price in full to DESIGNER. If payment is not made pursuant to the terms of this agreement, DESIGNER (or its nominated agent) may, without prejudice to any of its rights, retake possession of the SUPPLIES, as its own property and for this purpose the CLIENT irrevocably licenses The DESIGNER (and its agent) to enter upon the premises of the CLIENT.
  8. In the event that the SUPPLIES are resold or distributed by the CLIENT before the CLIENT has paid all monies due to The DESIGNER in respect of those SUPPLIES, the entire proceeds from such resale shall be held by the CLIENT in trust for The DESIGNER and the Customer shall apply such proceeds for payment of the said monies due to The DESIGNER.
  9. Unless specifically stated, our price does not include for any costs or services which may be required from other Consultants, should other Consultants be required the client shall bear the net costs of such.
  10. Unless specifically stated, all prices are exclusive of GST (Goods and Services Tax).

 

Estimate: Billing will reflect the actual costs incurred. Any offer will remain open for acceptance for a period of 30 (thirty) days from the date of our contractual estimate/quotation. If, for any reason, DESIGNER is not permitted to commence the work within 30 (thirty) days of acceptance of our offer, we reserve the right to re-negotiate.

 

  1. OUT-OF-POCKET EXPENSES – Fees for professional services do not include outside purchases such as, but not limited to, printing, photography, color printouts, laminating, illustrations, separations, postage and handling or courier service. Expenses are itemized on each invoice. Expenses are subject to GST unless

1) You are a nonprofit organization; or 2) the work is for resale and you have submitted a resale certificate to DESIGNER.

 

  1. REVISIONS AND ALTERATIONS – New work requested by CLIENT and performed by DESIGNER after a proposal/estimate has been approved is considered a revision or alteration. If the job changes to an extent that substantially alters the specifications described in the original estimate, we will submit a proposal revision memo to you, and a revised additional fee must be agreed to by both parties before further work proceeds.

 

Author’s alterations and other copy changes requested after layouts or mechanicals are completed are billed at standard hourly rates. Changes to any SUPPLIES completed (Authors’ alterations) or part completed requested by the CLIENT or any other part beyond our control, will be charged to CLIENT on a time basis at of $50 (Fifty dollars Australian) per hour.

 

  1. OVERTIME – Estimates are based on a reasonable time schedule, and may be revised to take into consideration your “Priority Scheduling” requests requiring overtime and weekends. Knowledge of your deadlines is essential to provide an accurate estimate. In addition, outside suppliers such as service bureaus charge a 100% to 200% markup on overtime after 5:30pm and weekends.

 

  1. NATURE OF COPY – CLIENT agrees to exercise due diligence in its direction to us regarding preparation of materials and must be able to substantiate all claims and representations. You are responsible for all trademarks, service mark, copyright and patent infringement clearances. You are also responsible for arranging, prior to publication, any necessary legal clearance of materials we prepare.

 

  1. ERRORS AND OMISSIONS – It is the CLIENT’S responsibility to check proofs carefully for accuracy in all respects, ranging from spelling to technical illustrations. DESIGNER is not liable for errors or omissions. Your signature or that of your authorized representative is required on all mechanicals or artwork prior to release for printing or other implementation.

 

  1. OVER RUNS AND UNDER RUNS – The CLIENT will accept over runs or under runs that do not exceed 10% of the quantity ordered on all jobs. The DESIGNER will bill for actual quantity delivered within this tolerance. If the CLIENT requires a guaranteed quantity, the percentage of tolerance must be stated at the time of quotation.

 

  1. PLACEMENT OF ADVERTISING – At your request, we will purchase media space on your behalf. Space will be billed to you at current rates. The CLIENT shall be responsible for payment for all costs associated.

 

  1. PROPERTY AND SUPPLIER’S PERFORMANCE – DESIGNER will take all reasonable precautions to safeguard the property you entrust to us. In the absence of negligence on our part, however, we are not responsible for loss, destruction or damage or unauthorized use by others of such property. We will use our best efforts to ensure quality and timely delivery of all printed (offset, silk-screened, embossed or otherwise reproduced) pieces. Although we may use our best efforts to guard against any loss to you through the failure of our vendors, media, or others to perform in accordance with their commitments, DESIGNER is not responsible for failure on their part.

 

If you select your own vendors, other than those recommended by us, you may request that we coordinate their work. If at all possible, we will attempt to do so, but we cannot in anyway be held responsible for quality, price, performance or delivery.

 

Under no circumstances shall DESIGNER be liable to CLIENT for an indirect or consequential loss suffered by CLIENT relying on the information included in the SUPPLIES prepared by DESIGNER including (without limitation) loss of profit, loss of Contracts or pure economic loss. Any liability is strictly limited to the direct losses associated with remedial costs of the SUPPLIES only, not to include claims for delays, out of sequence working, non productive overtime, award of costs, etc. Liability to any third party for any reason is specifically excluded unless separately agreed in writing.

 

  1. LIEN – All materials or property belonging to the CLIENT, as well as work performed, may be retained as security until all just claims against the CLIENT are satisfied.

 

  1. RIGHTS OF OWNERSHIP – Once a project has been delivered by us and is fully paid for by CLIENT, DESIGNER will assign the reproduction rights of the design for the use(s) described in the proposal.

 

According to the Copy right Law of 1976, the rights to all design and art work, including but not limited to photography and or illustration created by independent photographers or illustrators retained by DESIGNER, or purchased from a stock agency on your behalf, remain with the individual designer, artist, photographer or illustrator. Unless a purchase of “All Rights” (A Buyout) is negotiated with DESIGNER and/or his/her authorized representative, you may not use or reproduce the design or the images therein for a purpose other than the one(s) originally stipulated. If you wish to use the design we have created and/or the images within it for another purpose or project, including a reprint or exhibition, you must contact us to arrange the transfer of rights and any additional fees before proceeding. If printing or other implementation is done through your vendors, you agree to return to us all our original mechanicals and artwork (slides, prints, drawings, separations, etc.) within two weeks, and to provide us with printed samples of each project.

 

We reserve the right to photograph and/or distribute or publish for our firms promotional and marketing needs any work we create for you, including mock-ups and comprehensive presentations, as samples for our portfolio, firm news letter, brochures, slide presentations and similar media. We agree to store mechanical boards and computer disks for a period of 6 months beyond the delivery of a job. Thereupon, we reserve the right to discard them.

 

Title in the SUPPLIES together with all the information contained therein and all data generated under the Contract, between DESIGNER and CLIENT, shall remain vested in DESIGNER until the CLIENT has discharged all its obligations under Sections 2 to 3 inclusive above, whereupon the benefit of the Supplies shall be used by the CLIENT exclusively for the project on which the SUPPLIES were originally required, payment in accordance with Clause 2. and 3. above does not discharge copyrights or intellectual property. Liability to any third party for any reason is specifically excluded unless separately agreed in writing.

 

All Supplies created for the CLIENT by DESIGNER are assigned a license of use. This license of use cannot be transferred to another 3rd party unless otherwise separately stated by DESIGNER.

 

Any claims in respect of SUPPLIES must be made within seven (7) days of delivery of the goods and in this respect time shall be of the essence. No returns will be accepted unless authorized by DESIGNER in its sole discretion (conditionally or otherwise) in advance.

 

  1. PRIVACY – Reports, drafts and all other records provided by DESIGNER are private and confidential between CLIENT and DESIGNER and they may not be used or relied upon by any other party without the prior consent of DESIGNER. Liability to any third party for any reason is specifically excluded unless separately agreed in writing.

 

  1. TERM AND TERMINATION – The term of this agreement will continue for work in progress until terminated by either of us upon thirty (30) days written notice. If you should direct us at any time to cancel, terminate or “put on hold” any previously authorized purchase, we will promptly do so, provided you hold us harmless for any cost incurred as a result.

 

Upon termination of this agreement, DESIGNER will transfer to CLIENT all your property and materials in our control and for which you have paid. CLIENT will indemnify and hold DESIGNER harmless for any loss or expense (including attorney’s fees), and agree to defend DESIGNER in any actual suit, claim or action arising in any way from our working relationship. This includes, but is not limited to assertations made against CLIENT and any of its products and services arising from the publication of materials that we prepare and you approve before publication.

 

  1. PRODUCTION SCHEDULES – Production schedules will be established and adhered to by both CLIENT and the DESIGNER, provided that neither shall incur any liability, penalty or additional cost due to delays caused by a state of war, riot, civil disorder, fire, labour trouble or strike, accidents, energy failure, equipment breakdown, delays in shipment by suppliers or carriers, action of government or civil authority, and acts of God or other causes beyond the control of the CLIENT or DESIGNER. Where production schedules are not adhered to by the Client, final delivery date or dates will be adjusted accordingly.

DESIGNER will use all reasonable endeavours to meet quoted completion dates. However, time is not the essence of the Contract and DESIGNER will not be liable in cases of late delivery, however, caused, nor shall lateness be deemed to be a breach of Contract or an act of negligence.

 

  1. ADDITIONAL PROVISIONS – The validity and enforceability of this agreement will be interpreted in accordance with the laws of Australia applicable to agreements entered into and performed in Australia. This agreement is our entire understanding and may not be modified in any respect except in an executed agreement.

 

Notwithstanding Condition 14 above, copyright and all intellectual property rights in the SUPPLIES prepared by DESIGNER for the CLIENT, shall remain vested in DESIGNER unless otherwise negotiated.

 

Where CLIENT intends to use any SUPPLIES or information provided by DESIGNER, or any SUPPLIES and information becomes involved in litigation then CLIENT will both advise DESIGNER in writing and seek the approval prior to using SUPPLIES. DESIGNER reserves the right to refuse to provide SUPPLIES for use in litigation.

 

The total liability of DESIGNER is to CLIENT only whether as to specie, quantum or duration of liability, no other obligations are to be implied into the Contract, whether as to the giving of bonds, warranties, or guarantees unless expressly detailed therein. Liability to any third party for any reason is specifically excluded unless separately agreed in writing.

 

If we must retain attorneys to collect our invoices, we will be entitled to reasonable attorney’s fees, court costs, and interest at the maximum rate permitted by law.

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