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TERMS OF AGREEMENT

Terms of Agreement 

GRAPHIC DESIGN SERVICES AGREEMENT
 

TERMS AND CONDITIONS
 

Thank you for choosing Tyne Creative ABN 48 570 511 990

 (hereafter “Tyne Creative ” “we”, “us”) to create your Work.

 

This is an Agreement under which you (hereafter ‘you’ or ‘your’) agree to use our Goods and Services supplied by us (‘the Terms’). These Terms are important because they set out both yours and our rights and obligations, when confirming your wish to obtain our goods and services from us.

 

The goods and services are confirmed once you have executed these Terms. However, where you fail to execute the Terms but proceed to instruct us in relation to a creation, design or the manner in which the Work will be completed, you confirm your agreement to be bound by these Terms. This also applies where you pay the non-refundable Booking Deposit as required by these Terms. 

 

This agreement expressly supersedes prior agreements or arrangements with you. 

 

  1. Making The Work

 

  1. The goods and services offered constitute the graphic artwork and design of Presentations and custom marketing graphics. (‘the Design Services’ or ‘Work’)
     

  2. We offer an initial free 15 minute consultation during which we will ask you for as much information as possible about your Work. Further consultations may be provided at a cost of $220.00 per hour or part thereof. We will discuss the concept and details of the Work with you. However, in doing so, you acknowledge that some particulars of the Work may not be able to be achieved for reasons which we may advise (such as time or availability of materials). We will endeavor to inform you of any reason as to why this may be the case in our initial discussions with you.
     

  3. Upon deciding to work with us, please ensure you have allowed us ample time to complete the Work. Whilst we will do our best to give you an approximate time for completion, you must take into account that proofing, assembly and production time must be taken into consideration.
     

  4. We may assist you by providing photos during our discussions. However, you acknowledge that the materials that we use as part of creating your Work may look different to those in the photos. All attempts will be made to source the colours, style, textures or materials requested for the Work. Some items requested may not be available. Where measurements have been provided for arrangements, this sizing will be a guide only. We cannot accept responsibility for these variations in size.
     

  1. Quoting Your Work
     

    1. When you have decided on the details of your Work, we will then provide you with our quote (‘Quote’) for your Work. This information will include:
       

      1. Your chosen Design Services (‘the Work’);

      2. An approximate date of delivery of your Work (‘Work Delivery’); and

      3. The price (‘Price’).

 

  1. Our offer to provide your Work at the Quote provided will be valid for you to consider for a period of fourteen (14) days from the date of the Quote (‘Quote Period’). During the Quote Period, we will hold your Work for you and this may require us to limit the number of Works taken on the Work Delivery or in the lead up to that Work Delivery. If you do not confirm your Work by the last date of the Quote Period, then our offer to provide your Work will no longer be valid and we will have no further obligations to you. We can provide you with a new quote if you would like.
     

  2. If you confirm your Work by the last day of the Quote Period, then we agree to provide the Work on the Work Delivery for the Price.

 

  1. Confirming Your Work
     

    1. To confirm your Work, we require a non-refundable Booking Deposit of 50% of the total estimated price of your Work (‘the Booking Deposit’).
       

    2. You acknowledge and accept that the Booking Deposit is not refundable and not transferable unless specified in these Terms. The Booking Deposit has been set as liquidated damages as a genuine estimate of loss suffered in the event that you cancel the Work, or part of the Work, regardless of whether we are able to allow another Work to be made in its place.
       

  2. Making Payment to Us

 

  1. We will send you an invoice/several invoices for the payment/s you must make towards the Price of your Work. You must make the payments by the due date on the invoice/s. Where a payment plan has been arranged between the parties, work will not commence until such amounts are paid, and any final Work will be withheld until final payment is made.
     

  2. You must pay us the full Price for your Work (including any increases in the Price) 48 hours before your Work Delivery.
     

  3. If the Price for your Work increases after the date that the full Price is due which is 48 hours before your Work Delivery, then you must pay us that additional amount after the date of the invoice that we send you, even if this is after the Work Delivery.
     

  4. You can make payments to us by using one of the payment options that we provide to you.
     

  5. If you fail to pay us any amount when due, we may suspend delivery of or withhold access to any Work or stop performing any of the Work until payment is made.
     

  6. Unless stated otherwise, all of the Fees are inclusive] of Goods and Services Tax (‘GST’), as defined by A New Tax Systems (Goods and Services Tax) 1999 (Cth) and related legislation.
     

  1. Making Changes to Your Work
     

    1. Once you confirm your Work, we will start our work to provide your Work in a timely manner. 

 

  1. You may request a change to the Work (other that the date of Work Delivery) at any time up to [48 hours before your Work Delivery. If we need to change the prices of the Work in your Work to accommodate your change request, then we will provide you with an additional quote. (‘Additional Quote’). Work cannot proceed on your changed Work unless that additional quote is accepted.
     

  2. If you change your mind in relation to any aspect of your Work and this increases the amount of work that we need to do to provide the Work, an additional invoice will be provided and this invoice must paid within 7 days.
     

  1. Approval of Final Artwork
     

    1. While we take the utmost care in avoiding errors, we cannot accept responsibility for any typological errors, spelling mistakes, or incorrect information on any project committed to print or production after final approval. 

 

  1. You agree to proof read and approve all final copy before the production of artwork in the final form we provide.

 

  1. Acceptance of the final copy on that form constitutes approval of all artwork and as such, will be released for printing, implementation or installation.

 

  1. It is your sole responsibility to notify us of any errors during the revision cycle. No refunds or reprints are given after the final approval is given which has resulted from you oversight.

 

  1. Where you provide an incorrect address for invitations to be sent, we cannot be held responsible for the resending, reprinting or reimbursing of invitations unless a further fee is paid. Addresses will be written exactly as they appear on the provided spreadsheet and you must proof read these addresses to ensure accuracy.
     

  1. Artistic Release

 

  1. Style. You agree that you have spent a satisfactory amount of time reviewing our work and have a reasonable expectation that we will perform our Design Services in a similar manner and style unless otherwise specified in Terms.

 

  1. Consistency. We will use reasonable efforts to ensure your designs are produced in a style and manner consistent with our current portfolio and we will try to incorporate any reasonable suggestion made by you. However, you understand and agrees that every client’s needs are different, with different tastes, budgets, and needs.

 

  1. Design Services are often a subjective art and we have a unique vision, with an ever-evolving style and technique. We will use our artistic judgment when providing the Work to you, which may not include strict adherence to your suggestions. Although we will use reasonable efforts to incorporate your suggestions and desires when providing your Work, we shall have the final say regarding the aesthetic judgment and artistic quality of the Work. Dissatisfaction with our aesthetic judgment or artistic ability are not valid reasons for termination of this Agreement or request of any monies returned.
     

  1. Intellectual property
     

    1. Definition of Intellectual Property
       

As used herein, the term “Intellectual Property” shall include, without limitation, any inventions, technological innovations, discoveries, designs, formulas, know-how, processes, business methods, patents, trademarks, service marks, copyrights, computer software, ideas, creations, writings, lectures, illustrations, photographs, motion pictures, scientific and mathematical models, improvements to all such property, and all recorded material defining, describing, or illustrating all such property, whether in hard copy or electronic form.

  1. Original Artwork
     

We retain all proprietary rights, including property ownership, intellectual property rights and copyrights, in and to all Design Services and original artwork, before, during and after their creation which comprises the Work (‘the Intellectual Property’).

  1. Final Works and Permitted Use

 

  1. Upon completion of the Work, and expressly conditioned upon full payment of all fees and costs due, we hereby grant to you the non-exclusive, perpetual and worldwide right and license to use, reproduce and display the Design Services solely in connection with your Work as defined by these Terms. All other rights, including copyrights, are reserved by us. We are not obligated to disclose such things to you as font within design, as this is done so to protect the Intellectual Property of ours.

 

  1. All Work must be used for in this case only COMMERCIAL use (including social media, and commercial creations), Any additional uses will require separate pricing. You must not crop, distort, manipulate, reconfigure, mimic, animate, edit, extract portions, intentionally alter the color of the Work, or otherwise create derivative works based on the Work. You must not, without our prior written consent. You must not (i) adapt, create derivative works from or merge the template provided to you; (ii) use the Intellectual Property for any purpose other than the specific purpose for which we have provided it; (iii) reverse engineer, disassemble or decompile the intellectual property; (iii) distribute, lend, resell, transfer, assign or sub-license the property or allow any other person to use it; or (iv) remove or attempt to remove any proprietary or copyright notices or any labels on the Intellectual Property.
     

  1. Trademarks


You shall have sole responsibility for ensuring that any trademarks do not infringe the rights of third parties, and you shall indemnify, save and hold harmless us from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party alleging trademark infringement, or arising out of your failure to obtain trademark clearance or permissions, for use of Trademarks.

 

  1. Third Party Materials. 

 

Intellectual Property rights in Third Party Materials shall be owned by the respective third parties. You must inform us of all Third Party Materials to be procured by us that you may need to license at your own expense, and unless otherwise arranged by you, we shall obtain a license for you to use the Third Party Materials consistent with the usage rights granted herein. You shall indemnify, save and hold harmless us from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of your failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the final Work at your request.

 

  1. Confidentiality
     

  1. Confidential information (the "Confidential Information") refers to any data or information relating to you, whether business or personal, which would reasonably be considered to be private or proprietary to the Client and that is not generally known and where the release of that Confidential Information could reasonably be expected to cause harm to you.
     

  2. We agree that we will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which we have obtained, except as authorised by you or as required by law. We further agree that we will not disclose, divulge, reveal, report or use, for any purpose, any personal information of yours, without the prior written consent by you. The obligations of confidentiality will apply during the Term and will survive indefinitely upon termination of the agreement.
     

  1. Return of Property
     

Upon the expiry or termination of these terms, we will return to you any documentation, records, or Confidential Information which is your property.

  1. Independent Contractor

 

In providing the Work under these terms it is expressly agreed that we are acting as an independent contractor and not as an employee. We both acknowledge that these Terms do not create a partnership or joint venture between us, and is exclusively a contract for service.

 

  1. Release and Liability

 

  1. Release: To the fullest extent permitted by law, you release and forever waive any and all claims you may have against us, our officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers for any loss, damage, expense or injury (including any claim) you sustain arising out of or in connection with your access to (or inability to access) or use of the Work, or any External and Third Party Links and Sites or any Third Party Content.
     

  2. Limitation of liability: To the fullest extent permitted by law you agree that neither we, nor any of our officers, directors, employees, agents, information providers, partners, advertisers, licensors or suppliers will be liable to you or any person for any claim resulting from or arising out of (i) your use or inability to use final Works (ii) any indirect or consequential loss, or any economic loss; or (iii) any other matter relating to the Work, except to the extent resulting from our gross negligence or wilful default. 

 

  1. Indemnification

 

Except to the extent paid in settlement from any applicable insurance policies, and to the extent permitted by applicable law, each party agrees to indemnify the other party, and its respective affiliates, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from or arise out of any act or omission of the indemnifying party, its respective affiliates, officers, agents, employees, and permitted successors and assigns that occurs in connection with this Agreement. Any such loss is to be proportionately by the amount of loss which the other party has contributed. This indemnification will survive the termination of this Agreement.
 

  1. Entire Agreement

 

It is agreed that there is no representation, warranty, collateral agreement or condition affecting these Terms except as expressly provided in these Terms.

 

  1. Governing Law

 

These Terms will be governed by and construed in accordance with the laws of the South Australia.

 

  1. Severability

 

In the event that any of the provisions of these Terms are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of this Terms.

 

  1. Waiver

 

The waiver by either Party of a breach, default, delay or omission of any of the provisions of these Terms by the other party will not be construed as a waiver of any subsequent breach of the same or other provisions.

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