PLACEMAKER STUDIO PTY LTD
In order to become a Client of Placemaker Studio Pty Ltd (“Placemaker Studio”) or a user of any of Placemaker Studio’s services, you agree to the following terms and conditions. Your agreement to these terms will be indicated by: the execution of any contract; commencement or completion of any business activities; or use of any of Placemaker Studio’s services, whichever occurs first.
1. OVERVIEW
1.1. These terms and conditions shall govern the provision of design, marketing, website and any related services by Placemaker Studio.
1.2. Please read these terms and conditions carefully. If you do not accept these terms and conditions without modification, you may not use Placemaker Studio’s services. Placemaker Studio may revise these terms and conditions at any time by updating this posting. If the terms and conditions are revised, the original terms accepted by the Client for a project will remain valid.
2. EXCLUSION AND LIMITATION OF LIABILITY
2.1. To the full extent permitted by law, Placemaker Studio hereby excludes all warranties not expressly set out herein except specifically set forth elsewhere in this agreement and gives no express or implied warranties including the warranties of merchantability or fitness for particular purpose, or arising from a course of dealing, usage, trade practice, with respect to any goods or services under or incidental to this agreement. No oral or written information or advice given by Placemaker Studio, our resellers, agents, representatives or employees shall create a warranty or in any way increase scope of the express warranties hereby given, and you may not rely on any such information or advice.
2.2. Placemaker Studio’s total aggregate liability to you for any claim in contract, negligence or otherwise arising out of or in connection to the provision of the Services shall be limited to the charges by you in respect of the Services which are the subject of any such claim.
2.3. In no event shall Placemaker Studio be liable to you for any loss of business, profits or anticipated savings or for any other indirect consequential or economic loss whatsoever.
3. PROPERTY RIGHTS AND OTHER CONSENTS
The Client is solely responsible for obtaining any and all necessary intellectual rights clearances and/or other consents and authorisations.
4. INDEMNITY
The Client agrees to indemnify and keep indemnified and hold Placemaker Studio harmless against any claim brought against Placemaker Studio by a third party resulting from the provision of services by Placemaker Studio to the Client. This includes all losses, costs, actions, proceedings, damages, expenses (including reasonable legal costs) or liabilities, whatsoever suffered and howsoever incurred in consequence of the Client’s breach or non-observance of these terms.
5. SEVERABILITY
If any clause of these terms and conditions is held to be invalid or unenforceable in whole or in part, the invalid or unenforceable shall be deemed to be omitted.
6. ASSIGNMENT
The benefit of this agreement may be assigned by Placemaker Studio, but not by the Client. Placemaker Studio may give notice to the Client in writing, and the Client’s failure to respond will be deemed acceptance. The Client may transfer this agreement provided that the Client gives Placemaker Studio notice in the form Placemaker Studio requires (setting out the details of the assignee) including payment of any transfer fee specified by Placemaker Studio. No other transfer by the Client is permitted.
7. ENTIRE AGREEMENT
These terms and conditions constitute the entire agreement and supersede all prior agreements, understandings, representations whether oral or written. No oral explanation or information given by any party shall alter the interpretation of these terms and conditions. Except as provided above, no variation shall be made to the contract unless it is in writing and signed by representatives of the Client.
8. ENTIRE AGREEMENT, GOVERNING LAW
This agreement shall be governed by the laws in force in the State of Victoria. Both parties hereby submit to the exclusivity of the Courts of that State.
9. GST
9.1 Expressions used in this clause and in the GST Act have the same meanings as when used in the GST Act.
9.2 Amounts payable and consideration provided under or in respect of this Agreement are GST exclusive.
9.3 The recipient of a taxable supply made under or in respect of this lease must pay to the supplier, at the time the consideration for the supply that is due, the GST payable in respect of the supply. This obligation extends to supply consisting of a party’s entry into this Agreement.
9.4 An amount payable by the Client in respect of a creditable acquisition by Placemaker Studio from a third party must not exceed the sum of the value of Placemaker Studio’s acquisition and the additional amount payable by the Client under this Clause on account of Placemaker Studio’s liability for GST.
9.5 A party is not obliged to pay GST on a taxable supply to it under this Agreement until given a valid invoice for the supply.
10. PRICING AND PROCEDURES
10.1 Prices are valid for 30 days from the date of the estimate or proposal. If work is not commenced within 30 days of acceptance, Placemaker Studio reserves the right to re-negotiate the price.
10.2 In some instances, Placemaker Studio may require that the Client pay up to a 50% deposit or full payment on completion or delivery of artwork or printed materials. In other cases, payment is due in 30 days from the date of invoice.
10.3 The Client agrees to provide written acceptance or email acceptance before any work is commenced. This must be formatted as a Letter of Agreement between the Client and Placemaker Studio concerning the work outlined in the Placemaker Studio estimate.
10.4 All pricing supplied in Placemaker Studio estimates excludes GST.
10.5 If Placemaker Studio feels that any item requested by the Client does not fit within the initial brief, the Client may be charged additional fees. The item will either be quoted separately or charged as an extra, at full hourly rates.
10.6 The placement of an order for design and/or any other services offered by Placemaker Studio and validated by either the Client’s signature on the estimate or quotation form, or Client email or Client verbal acceptance (in the case of work with urgent timelines) constitute acceptance of the estimate or quotation and agreement to fully comply with all the Terms and Conditions.
10.7 In the event that any material necessary for the production of the project needs to be shipped to a third party (for example, for additional processing, typesetting, photographic work, colour separation, press work, or binding), Placemaker Studio will incur no liability for losses incurred in transit or due to the delay of a third party.
10.8 The Client is responsible for any shipping/transport or insurance costs related to the work unless specified in writing. Many of Placemaker Studio’s prices, where specified, include transport to one metropolitan point in Melbourne, this does not include insurance. A Client needs to request insurance in writing and pay for it if this is required.
10.9 Placemaker Studio shall not incur a liability or penalty for delays in the completion of the work due to action or negligence of the Client, unusual transportation delays, unforseen illness or external forces beyond the control of Placemaker Studio. If such event(s) occur, it shall entitle Placemaker Studio to extend the completion/delivery date by the time equivalent to the period of such delay. Placemaker Studio may from time to time and without notice or liability to you suspend any of the services if the reason for doing so is an event beyond the reasonable control of Placemaker Studio.
10.10 Placemaker Studio reserves the right to suspend services in any case where the Client fails to perform its obligations under this agreement.
10.11 All advertising of pricing is subject to change at any time without notice.
10.12 Additional charges may be added to an estimate for costs incurred for services or items required to complete a job for the Client. These may include edits, courier fees, proofing/printouts, artwork retrieval and the purchase of imagery and materials, or services supplied by third parties.
10.13 All prices quoted are, in the absence of specific written agreement to the contrary, estimates only. Placemaker Studio estimates for design or related work are based upon projected working hours at the current studio rate, plus materials and are subject to amendments on or after acceptance to meet any rise or fall in such rates or material costs. Any increased charges of costs arising from alterations or additions to the contractual specifications or to work previously approved, required to complete the job, such as edits, courier fees, proofing/printouts, artwork retrieval and the purchase of imagery and materials, or services supplied by third parties may be charged to the Client.
10.14 Payment for services and products is accepted via electronic funds transfer (EFT), Cheque and credit card. Accepted credit cards are Visa and MasterCard. If payment is made via credit card an additional 2% charge will be added.
11. PAYMENT
11.1 Placemaker Studio will provide a tax invoice for all projects completed or in progress for immediate payment as specified on the tax invoice. Clients may apply for a 30 day credit account, if application is approved the client will receive a 30 day period from the time of invoicing when payment is required to be paid.
11.2 A deposit of up to 50% may be required before design work can commence, with the remaining amount payable on completion.
11.3 When a project extends 30 days past the commencement date or when specific project milestones are reached, Placemaker Studio reserves the right to issue the Client with a ‘progress payment’ invoice.
11.4 When a design is completed and requires print or manufacture to complete the project, an invoice is issued at the time it is sent to print/production. Delivery of the product will arrive prior to the 30 days allowed for payment.
11.5 Websites – Due to the segmented stages of website design and development, websites require a deposit of 25% followed by progress payments of 3 x 25% intervals or invoicing when specific milestones are reached throughout the project.
11.6 Payment is always required within the time frame specified on the invoice. If payment is not received within the specified period, Placemaker Studio reserves the right to charge interest on the outstanding amount until the overdue account is paid in full.
11.7 For retainer contracts an invoice will be supplied at the end of every quarterly period, which will require payment within 30 days. If for some reason the client wishes to conclude the retainer agreement early they will be liable for the full amount of the remainder of the retainer contract, less a 10% discount and payment within 30 days of the agreement conclusion.
11.8 If a client does not pay within the specified terms of the invoice Placemaker Studio has the right to charge a late fee on the outstanding amount. The late fee based on a rate of 5% annual interest. The interest rate is calculated annually and divided by 12 to give the monthly fee associated to the outstanding amount. A late fee will be charged when an account is overdue by more than 30 days after the specified terms.
12. ARTWORK SPECIFICATIONS
12.1 When accepting artwork proofs, the Client is held fully responsible for accepting all content. This includes design, spelling, grammar and quality. It is the Client’s responsibility to request another copy if the proof is difficult to read or if changes are required. The Client’s final accepted proof is what will be printed. There will be no reprints at Placemaker Studio’s expense.
12.2 Clients who send in their own artwork are fully responsible for the end result. Clients are reminded to submit print-ready artwork with the correct specifications. We will print whatever you submit, but take no responsibility for artwork mistakes or product quality. There will be no reprints at Placemaker Studio’s expense.
12.3 Clients are reminded that when their artwork is trimmed, the bleed cut can vary in position up to 2-3 mm hence a 3mm internal margin from the bleed line is required.
12.4 It is the Client’s responsibility to ensure that any design that is submitted does not violate Australian law. Placemaker Studio will assume the artwork or content the Client submits is legally the Client’s property and the Client indemnifies Placemaker Studio accordingly.
12.5 If errors are noticed and if changes are required to your artwork, Placemaker Studio will contact you to avoid possible printing problems occurring. An artwork fee will be charged for any changes required. There will be no reprints at Placemaker Studio’s expense.
12.6 Laser proofs, digital proofs and screen proofs are not 100% accurate and variation may occur due to printing method, type of proof and the medium that the artwork is printed on. Placemaker Studio attempts to minimise variations as best as possible and cannot be held responsible for any deviation from the Client’s expectations as long as it is fit for the purpose. To ensure accuracy, Clients may request a press check.
12.7 Should there be a change of direction or new concept that differs from the initial brief, additional fees will be payable according to time/materials involved. Placemaker Studio will notify you of this and the additional quote/s will be provided.
12.8 Your artwork, photographs, images, websites and data will not be archived or stored unless specifically agreed in writing by Placemaker Studio prior to the work commencing. Placemaker Studio holds no responsibility for archiving artwork, photographs, images, websites and data and has no obligation to replace or provide any of these items after they have been completed and supplied for their single specific purpose as outlined in the approved estimate agreement.
13. WEBSITE DESIGN, MAINTENANCE AND SUPPORT
13.1 Placemaker Studio takes no responsibility for any errors in the content. It is the responsibility of the Client to ensure all content is correct before delivery. All images provided by the Client for their website must be copyright approved before delivery. Placemaker Studio is not responsible for the copyright of any supplied images. However, Placemaker Studio can source a range of (watermarked demo) stock images for the Client. These stock images must be purchased prior to use on the final site and will be in addition to the original quoted price, unless otherwise stated.
13.2 All content should be delivered in one package, containing all images, text, captions etc. together with clear instructions on where the content is to go.
13.3 Once the web design is complete, Placemaker Studio will provide the Client with the opportunity to review the resulting work. Placemaker Studio will make two sets of minor changes at no extra cost within 30 days of the start of the review period. Minor changes include small text changes and small adjustments to placement of items on the page. It does not include changes to images, colour schemes, template structures, module additions or any navigation features. Any minor changes can be notified to Placemaker Studio by e-mail or confirmed in writing. Placemaker Studio will consider that the Client has accepted the original draft, if no notification of changes is received in writing or via email from the Client, within 30 days of the start of the review period.
13.4 Once a site has been approved and signed off, all additional corrections and modifications to the site will be charged as extras at full hourly rates.
13.5 Technical assistance via telephone or email will be offered during the 30 day cooling-off period, once a site goes live or once a client is given access to the backend of your website, whichever occurs first. Site maintenance or extensive queries (more than 15 minutes) will be charged at hourly rates.
Website support after the 30 day review period (30 days from going live) is limited to 15 minutes per month phone support. Any additional support outside this timeframe may incur additional costs. Additional support can be negotiated and purchased in the form of a Website Maintenance Package.
13.6 Placemaker Studio will endeavour to ensure that any developed/designed website, eNewsletter, e-signature or application will function correctly on the server on which it is initially installed and that it will function correctly when viewed with web browsing software. Placemaker Studio cannot guarantee a correct or identical function with all browser software.
13.7 Placemaker Studio requires 30 days written or faxed notice of cancellation of website hosting. If website hosting has been purchased for a 12 month period there is no refund for the remainder of the 12 month contract.
13.8 Placemaker Studio offers maintenance packages for websites. You will need to refer to the specific inclusions of your package contract as packages vary depending on price and requirements. If a maintenance package is in place, the use of maintenance hours may include some of the following services: content updating, web page design, search engine optimisation, online marketing and research.
13.9 Placemaker Studio shall make reasonable efforts to provide continuing Client availability to the Server and the Services but shall not be liable for service interruptions or downtime of the Server.
13.10 Placemaker Studio restricts access to the HTML code and CSS of its websites to protect the websites from being modified, incorrectly coded, and from loss of coding data. It is also a measure of intellectual property protection of Placemaker Studio’s code.
13.11 Placemaker Studio owns the intellectual property of the items designed, created and coded (see section 15) of any of Placemaker Studio’s websites. When websites are built by Placemaker Studio in a particular content management system (CMS), the website must remain in this CMS system and cannot be moved to an alternative hosting or CMS.
13.12 It is the client’s responsibility to approve content (text, images, and links) included in eNewsletter (eMarketing) templates created by Placemaker Studio prior to publication. Placemaker Studio takes no responsibility for the content inputted or sent out to recipients from the e-marketing system.
13.13 The hosting level and the system used for eNewsletters will determine the way in which you will purchase credits to send eMarketing to recipients. Many hosting options provide a complimentary monthly amount of emails that can be sent. Complimentary emails do not accrue. If you need to purchase additional emails you may need to contact your account manager at Placemaker Studio.
13.14 Most websites that Placemaker Studio creates with a content management system have a database. Often the Database captures information from various forms such as contact and sign-up forms. It is the responsibility of the client to maintain their database, upload additional contacts, clean their database (unsubscribes, bounces) and segment/sort their database. Clients can also upload additional information from external sources into their database. Placemaker Studio takes no responsibility for the upload of database information or for any data stored in the database. It is the client’s responsibility to back up their data at regular intervals.
13.15 It is beholden on the client to become familiar with their website’s reporting tools, and use these as required or their reporting needs. Placemaker Studio cannot cover all variables. Therefore only a general overview is provided.
13.16 Placemaker Studio does not offer full access to the back end of the CMS system. This means clients are limited to content access only. Clients do not have access to any structural or functional components of the website that affect the overall operation of the site. This means no access to templates, CSS, HTML, code, forms or module-specific templates.
Exception to 13.16 – Only if granted in writing by Placemaker Studio.
If an exception is made to this term and Placemaker Studio agrees in writing to provide full access to the back end of the website, then Placemaker Studio takes no responsibility for any errors or damage to the functionality or operation of the website and it is the responsibility of the Client to ensure the website is functioning correctly. If errors or damage to the functionality occurs, Placemaker Studio is not liable for any financial or data losses and the client may be liable for the costs associated with the repair of the website back end. This includes, but is not limited to: Page and module templates; CSS, HTML and Javascript code, Web app, CRM and eCommerce database content and functionality, Form code and data, Assets saved in the File Manager, Secure Zone functionality, URL Redirects, all module content, System Emails and Pages, Site URL settings, Administrator access levels and associated Workflow behaviours, eCommerce payment gateway connections and purchase histories, Event Booking functionality, and history.
14. WEB HOSTING
14.1 The Client is solely responsible for maintaining adequate backups of their website content.
14.2 Placemaker Studio will endeavour to maintain network stability and satisfactory service levels however:
- Servers used by Placemaker Studio may from time to time perform routine maintenance, services and upgrades.
- Placemaker Studio will undertake to act on such instances at the most convenient times and provide reasonable notice by any means Placemaker Studio may deem satisfactory.
- Servers used by Placemaker Studio may experience outages beyond Placemaker Studio’s control.
- At Placemaker Studio’s discretion, Placemaker Studio may provide notification of outages whether planned or unplanned.
14.3 The Client releases Placemaker Studio from any claim or potential claim with relation to outages and any loss of business/service suffered by the Client or any third party.
14.4 Placemaker Studio cannot guarantee the availability of any domain name. Where Placemaker Studio is to register a domain name on behalf of a Client it will endeavour to do so, but the Client should not assume a successful registration.
14.5 Due to the infinite number of considerations that search engines use when determining a site’s ranking, Placemaker Studio cannot guarantee any particular placement. Acceptance by a search engine cannot be guaranteed and when a site is accepted, the time it takes to appear in search results varies from one search engine to another. Rankings will also often vary as new sites are added.
14.6 Placemaker Studio may discontinue services if an amount payable to Placemaker Studio is overdue or take down a website permanently in any case where an amount payable is overdue by more than 10 days. In any such event, the Client remains liable for the total cost of the contract including all disbursements unless otherwise agreed between the parties.
14.7 The Client agrees to allow Placemaker Studio to place a small credit on printed material, exhibition displays, advertisements and/or a Placemaker Studio credit on the Client’s website. This will be in the form of a small logo or line of text placed towards the bottom of the page. On websites this will link to Placemaker Studio’s own website.
14.8 The Client also agrees to allow Placemaker Studio to showcase the Client’s websites and other designs, along with a link to the Client’s site on Placemaker Studio’s own website for promotional purposes.
14.9 Placemaker Studio offers a range of hosting levels each with different inclusions and different pricing. Hosting prices may reasonably vary without notice.
14.10 Websites hosted by Placemaker Studio must be hosted on the Crucial content management system unless another agreement has been arranged and formalised in writing.
15. INTELLECTUAL PROPERTY
15.1 Placemaker Studio is the owner of all intellectual property including copyright in all artistic and literary works (including but not limited to logos, images, designs, photographs and website code – the “Works”) created by Placemaker Studio or its agents.
15.2 The Works have been created for the Client for a specific purpose. Placemaker Studio licences the Client to use the Works for the Client’s specific purpose only. The Works may not be used for any other purpose unless authorisation is given in writing from Placemaker Studio. Placemaker Studio does not authorise the perpetual use of the Works, nor any reproduction, selling or hire of the Works or any items or materials used in the Works supplied by third parties.
15.3 Placemaker Studio retains the right to use the Works in any of its own marketing collateral.
15.4 Placemaker Studio’s rights will not affect any pre-existing intellectual property rights of terms or materials used in the Works. For example, Placemaker Studio may make use of external image libraries and text, images, materials and ideas supplied by the Client or a third party. If the Client provides any items or materials to Placemaker Studio for use in the Works, the Client warrants that the use of the items or materials will not infringe the rights of any third party and indemnifies Placemaker Studio for any loss or damage arising from any such infringement.
15.5 The sole exception to the above is logo design and supply. Logos developed and produced will remain the intellectual property of Placemaker Studio until the logo is finalised and full payment for its creation has been received. On receipt of payment in full for the logo design, full intellectual property rights will be assigned to the Client. Placemaker Studio reserves the right to use the logo in any of its marketing material and items.
16. TRADE MARKS
16.1 Any design work created by Placemaker Studio over which the Client obtains ownership will not automatically be protected by a trademark. This includes items such as Logos, Words, Names, Images, Branding, an aspect of shape, colour, sound or scent – or any combination of these.
16.2 It is the responsibility of the Client and/or owner to investigate the availability or possibility of registering the work as a trademark and also to undertake the process of registration.
17. SOLICITATION OF EMPLOYEES
Throughout the duration of any project and for a period of 24 months thereafter, the Client shall not solicit or endeavour to entice away an employee, agent or any sub-contractors, employees or agents of Placemaker Studio with an offer of employment unless Placemaker Studio has expressed permission in writing for that offer to take place.