Terms Of Service
The below contains Flow Cre8tive Website Design PTY LTD’s standard terms of service. These terms will govern our relationship unless agreed by Variation of Agreement. By instructing Flow Cre8tive Website Design PTY LTD to undertake the Proposal’s services the Client is deemed to have agreed these terms. Unless agreed in writing these terms do not grant rights or permissions to any third party.
This Agreement is formed in Australia, the principal place of business for the Company and this Agreement and the rights of the Parties to this Agreement shall be governed by the laws of Australia. The parties to this agreement submit to the jurisdiction of the Courts of Australia and the laws from time to time in force. In the event of a dispute filed in court, the prevailing party shall be entitled to recover from the non-prevailing party all of the solicitors fees and costs incurred during the litigation. This is the entire agreement between you and Company; it supersedes all other negotiations and discussions prior to the execution of this agreement. You agree that no other representations have been made by Company to induce you into entering into this agreement and no modification to the terms of this agreement shall be effective unless in writing signed by both parties.
We’ll always do our best to fulfil your needs and meet your expectations but it’s important to have things written down so both you and us know what’s what, who should do what and when, and what will happen if something goes wrong. In this below you won’t find any complicated legal terms or long passages of unreadable text. We’ve no desire to trick you into signing something that you might later regret. We want what’s best for both parties, now and in the future.
In short, you are hiring us to design and develop a website for the estimated total price outlined in the quotation that’s attached, and these terms explain how the project will proceed.
The quotation that is attached is part of these terms, and is valid for thirty (30) days from its issue date.
The figures in the quote are based on the agreed scope. This does include expenses paid on your behalf for platform subscriptions, third party apps or any changes to the project scope (all of these are explained below).
We’ll do our best to meet the project deadlines outlined in the quote. That said, our ability to do this depends on you giving us everything we need to complete the project in the format that we need it, as and when we need it and then provide feedback and approval in a timely manner.
We understand that sometimes it’s impossible to reply to emails and messages immediately, and so we don’t expect you (or us) to be able to do so. At the same time, we’ve found that keeping the momentum going produces the best results for both us and our clients. So to keep the momentum so we can deliver your project on time within our scheduled hours, we kindly ask for you to provide feedback and/or approval within 48 hours of submission.
Delays cause complications with stacking for other clients which we try and avoid as best we can. A delay of more than 5 days in providing information, feedback, website content, etc. will result in a pause of the project which will mean that the schedule will need to be confirmed once the required elements have been provided.
Approval of this quote means you agree to the payment schedule outlined and to pay our invoices in accordance with the terms stated below.
A 50% non-refundable deposit is required before starting the work and final payment required before the website goes live online or final project deliverables are completed
The remaining balance will be invoiced upon completion of the work outlined in the below project requirements.
If feedback / approvals are not received within 3 weeks from the date of the last submission, we reserve the right to consider the project as satisfactory and complete. Consequently, any remaining balance of the Project fee will become due, and we will proceed with finalising and delivering the project accordingly.
Payment is to be made within seven (7) business days (i.e., non-weekends which are not public holidays) of receipt. You will be responsible for paying any bank charges, administrative fees, and / or other costs payable in connection with remitting any payment to us.
A late payment fee of 20% of the invoiced amount will apply to overdue accounts older than 20 days. Debt collection proceedings will be initiated if no agreement can be reached about invoices that are 60 days overdue. Any costs incurred by the Company for late payments, including, but not limited to debt collection and or court costs, to recover overdue accounts will be paid by the Client.
PLEASE NOTE: Most website platforms will charge a monthly/yearly subscription to use them. The quoted fee does not include fees for any third party platforms and subscriptions, including and not limited to domains, plug-ins, apps, website platforms, emails, hosting providers.
FEEDBACK & APPROVAL TIMEFRAMES
We're all about teamwork and making your project a success so to keep things running smoothly, we kindly ask for your cooperation in providing feedback and approving design iterations within 48 hours of submission.
Within our scope we allow for two (2) rounds of revisions per page. As long as the changes requested do not substantially alter the original project scope, nature or purpose; and as long as you have not already given us your final approval for the piece of work concerned. Any other kinds of amendments are considered a change in the project scope, which is explained in paragraph 8 below.
In the event that feedback or approval is not received within 3 weeks of the last submission, we reserve the right to consider the project as satisfactory and complete. Consequently, any remaining balance of the Project fee will become due, and we will proceed with finalising and delivering the project accordingly.
It is our goal to maintain effective communication and adhere to project timelines, and we appreciate your cooperation in promptly reviewing and responding to our submissions. Together, we can ensure a successful and timely completion of your website or design project.
You can cancel the contract at any time, by informing us in writing at least one (1) month in advance. Likewise, we can cancel the contract any time, by informing you in writing at least one (1) month in advance.
Cancellation does not affect any benefit or right that you or us become entitled to beforehand. So regardless of cancellation, you will pay us for any outstanding invoices and for work already done but not yet invoiced.
For graphic design projects, we will deliver to you the digital files containing the final project deliverables within two (2) business days after you approve them, and after you’ve paid all our outstanding invoices.
For website development projects, access will be provided within two (2) business days after you approve and pay all our outstanding invoices.
WHAT YOU CAN DO WITH THE DESIGNS AFTER PAYMENT OF THE FINAL PROJECT INVOICE
If we designed a trademark (in logo and/or tagline form) as part of your project, then, as far as the trademark is concerned:
Upon payment of all our outstanding invoices for the project, and in exchange for such payment, we assign to you all right, title and interest in the trademark (except our rights against false attribution as authors under the Copyright Act 1968, moral rights and their worldwide equivalents.
In exchange, you grant us a royalty-free and permanent licence to use representations of the designs and taglines in our portfolio (in all types of media), as a sample of our past works, in trade publications, educational material, to promote ourselves, and for competitions.
You’ll be entirely responsible for making sure our designs and taglines are free for you to use and register as a trademark, and that they don’t infringe anyone else’s rights - we cannot and do not accept any liability for these matters. We’ll sign any documents that are reasonably needed to confirm or evidence that you own the designs, provided you bear any legal and other fees that are incurred by either you or us in the process.
For all other deliverables created by us:
If you want to put the deliverables to additional uses, or make changes to them, we might have to obtain additional licences from third party vendors - contact us and we’ll be happy to confirm. Otherwise we will have to look to you to cover us for any damage, legal fees and consequences if you put the deliverables to additional uses without our prior authorisation.
We remain the owners of all rights in the deliverables in draft and final form, as well as of the works used to create them (except for materials that you provided, or that are owned by third parties), and are free to use them in future.
CHANGES TO THE PROJECT SCOPE
We recognise that you may have new ideas which you may want to include later on, and we’ll be able to accommodate you. Inform us of the changes or additions, and if they are not already provided for in the existing quotation given, we will provide a separate quotation to cover them.
We understand that there may be urgent changes to the project scope that need to be carried out right away. You can request and approve an emailed quote in order for us to start work on urgently needed changes, and we will follow up with an invoice later on.
EXPENSES PAID ON YOUR BEHALF
We will add to the balance invoice any expenses / fees that we incur in order to complete your project, including platform subscriptions, domain purchase, third party app setup or graphics needing to be purchased to complete a project design.
We may purchase or license from third party vendors materials used in your project (including fonts, imagery, apps, illustrations etc.). Where we license such material, the intellectual property rights in the licensed material remain the property of the third party vendors.
The quotation attached does not cover any work that has to be rushed ahead of the project schedule, or work outside the project scope that is to be executed on a rush basis. Rush work means work that you request us to complete within one (1) week of your request.
Our rush service fees include an additional 35% added to the amount stated in the attached quotation (or, if not previously quoted, of our standard charge) for the type of work requested.
AN EXPLANATION OF OUR WORK
We create look-and-feel designs, and flexible layouts that adapt to the capabilities of many devices and screen sizes. You’ll have two or more opportunities to review our work and provide feedback. If, at any stage, you’re not happy with the direction our work is taking, you’ll pay us in full for everything we’ve produced until that point and cancel the contract.
We’re not responsible for writing or inputting any text copy. If you’d like us to write new content or input text for you, we can provide a separate estimate for that.
Please supply logo graphic files in an editable, vector digital format and photographs in a high resolution digital format.
Fonts used for the project remain our property and will not be automatically released to you due to copyright. If you require the fonts used for the project, we can provide a separate estimate for that, which includes the release of copyright to you.
MATERIALS PROVIDED BY YOU
Where you provide us materials in the course of the project, you guarantee that you own them or have been given permission to use them. Ownership of these materials will remain with you (or the persons who licensed them to you) at all times. You grant us a royalty-free licence to use them for the project and to retain copies in our business records.
We will not be responsible for any damage or consequences if the materials you provided infringe someone else’s rights or are unlawful or illegal. You will indemnify us and pay for all damages, costs, fees, expenses and legal fees on an indemnity basis that we incur due to your materials being infringing, unlawful or illegal in any country.
We’re sure you understand how important it is as a small business that we get paid promptly for our invoices. We rarely have any late payment issues with our clients, but we need to protect ourselves too.
So in the unlikely event that any of our invoices is not paid on time, we may charge a late fee, as stated in paragraph 4 above, a late payment fee of 20% of the invoiced amount will apply to overdue accounts older than 20 days. Debt collection proceedings will be initiated if no agreement can be reached about invoices that are 60 days overdue. Any costs incurred by the Company for late payments, including, but not limited to debt collection and or court costs, to recover overdue accounts will be paid by the Client.
We also may choose to cancel the project immediately, suspend work till payment is received (including stopping ongoing work, removing unpaid material, and taking down the website), and/or take legal action to recover our fees and any lawyer’s charges for doing so.
OUR RIGHTS BEFORE PAYMENT OF THE FINAL PROJECT INVOICE
All originally created deliverables, including trademark logos and taglines, in draft and final form, are wholly owned by us prior to full payment of the final project invoice by you. This means that if the project is cancelled before completion, we retain ownership of everything, and no rights are granted to you to use them.
ERRORS AND OMISSIONS
We will use our best efforts to prevent errors and omissions from occurring in web page information. If such errors or omissions occur, please notify us, and we will correct them for free, and that will be the limit of our responsibility and liability.
“Confidential Information” means information that is marked as secret or confidential, or which, based on the circumstances in which it was disclosed, ought to be treated as confidential.
In the course of this project, we may receive from you (and you from us) Confidential Information. If either you or us receive from the other Confidential Information, the receiving party agrees to keep the Confidential Information secret, ensure that its agents and employees keep it secret, and not disclose it to any other person, organisation or entity (unless absolutely necessary).
However, the receiving party may use or disclose Confidential Information received from the other in order to comply with a court order, law or regulation, direction of a governmental or statutory authority. The receiving party may also use or disclose Confidential Information that entered the public domain due to no fault of that party, or that was disclosed to the receiving party by another source lawfully and without any obligation of confidentiality.
LIMITS ON LIABILITY
While our aim is to deliver top quality and client satisfaction, there are some things we are unable to accept responsibility for.
We provide the deliverables to you on an as-is basis, and we make no promise or guarantee that they will be fit for, or achieve, any particular purpose.
We cannot and do not promise or guarantee that services or products purchased or licensed from third party vendors will be free from interruption or failure or that they will remain available for use for any specific period.
We will not be liable to you for lost profits or other special or consequential damages of any kind, nor will we be liable to you for direct damages unless caused by our gross negligence or fraud. The maximum damages payable to you in any event will not exceed the amount of fees actually invoiced and paid to us in connection with the project in question.
Specifically, we will not be responsible or liable to you for damages or loss caused by:
- your use of the designs and deliverables in ways that are not covered by the licences we grant to you;
- anything done by us on your instructions, or using material you provided to us;
- any breach of these terms and conditions by you;
- any legal, governmental, contractual or other approvals that were required but which you did not obtain, and you will keep us indemnified for all damages, costs, fees, expenses and legal fees on an indemnity basis that we incur due to any of these specific actions and omissions.
Neither you nor us shall be liable for failure to perform our part of the contract, if the failure is due to force majeure events (including fire, flood, earthquake, storm, hurricane, natural disaster, war, civil war, invasion, act of foreign enemies, hostilities, rebellion, terrorist activity, government sanction, change of law, strike, lockout, industrial action, embargo, sabotage, interruption or failure of electricity service, interruption or failure of transport networks or other public utilities, interruption or failure of Internet or other communication service).
NO TRANSFER OF THE CONTRACT
You cannot transfer, assign or novate the contract, the licenses given under or in connection with it, or any other parts of the contract to anyone else without our advance permission in writing, which we may choose to give subject to additional conditions.
We cannot transfer, assign or novate the contract without your advance permission in writing, except to a company or business in which we or our ultimate owners have a majority ownership interest.
OTHER LEGAL STUFF
We are an independent contractor and not your employee, and thus, any laws by which ownership of copyright in works created by an employee is automatically transferred to the employer do not apply.
This Agreement is formed in Australia, the principal place of business for the Company, Flow Cre8tive Website design PTY Ltd, and this Agreement and the rights of the Parties to this Agreement shall be governed by the laws of Australia. The parties to this agreement submit to the jurisdiction of the Courts of Australia and the laws from time to time in force. In the event of a dispute filed in court, the prevailing party shall be entitled to recover from the non-prevailing party all of the solicitors fees and costs incurred during the litigation. This is the entire agreement between you and Company, Flow Cre8tive Website design PTY Ltd; it supersedes all other negotiations and discussions prior to the execution of this agreement. You agree that no other representations have been made by Company, Flow Cre8tive Website design PTY Ltd, to induce you into entering into this agreement and no modification to the terms of this agreement shall be effective unless in writing signed by both parties.
Flow Cre8tive Website Design PTY LTD may amend these terms and conditions at any time without prior notice.
If for some reason part of the contract becomes unenforceable or invalid, the remaining parts will be unaffected.
A failure or delay by either party in exercising any right or benefit under the contract does not amount to a waiver of that right or benefit.
The contract will bind the parties’ respective legal personal representatives, successors and permitted assigns.
Except where expressly stated otherwise in the contract, a person who is not a party to the contract has no right to enforce any term of the contract.
By signing the contract or by expressing your confirmation in writing (on paper or in electronic form), you agree to all the terms and conditions of the contract, which is effective from the most recent date that appears in the signing page or email.