1.1 “Deliverables” means the services and work product specified in the proposal to be delivered by Creative Digital Ltd to Client.
1.2 “Creative Digital Ltd Tools” means all design tools developed and/or utilized by Creative Digital Ltd in performing the Services.
1.3 “Final Art” means all creative content & services developed or created by Creative Digital Ltd, or commissioned by Creative Digital Ltd, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables.
1.4 “Services” means all services and the work product to be provided to Client by Creative Digital Ltd as described in the Proposal.
1.5 “Third Party Materials” means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.6 “Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.
2.1 Deposit. Creative Digital Ltd will raise a 50% deposit invoice upon acceptance of any quotation, on all work over $1000. This invoice is required to be paid before any project commences.
2.2 Payment terms
a) Progress payments. Once a project has commenced, at the end of each month that the project is in progress an invoice will be raised on 7 day terms for the % of the project completed to date (Above 50% deposit). The client agrees to pay these progress invoices on time, regardless of any conditions imposed by them. The client agrees that Creative Digital may stop all work on the project if these project payment terms are not followed.
b) Payment before launch. Any remaining balance owing on the project at completion is to be paid on 7 day terms. For payment purposes completion is deemed to be the date at which Creative Digital supplies the client with a live preview link to the working website, not launch. By agreeing to work with us you agree to stick to these payment terms, with no exception. The client accepts that no website may be launched live without full payment being made. Creative Digital will not accept any payment terms imposed on them by the client.
c) On account. Creative Digital Ltd will issue invoices for the 20th of the month following, for clients with a high monthly spend who have an approved credit facility with us. To have a credit facility with Creative Digital a monthly spend on average over $3000 is required, and a credit application must be completed along with a personal guarantee.
2.3 Minimum charge. Creative Digital Ltd will on all jobs charge a minimum of 1hr design time, regardless of how minor the update actually is. It is the responsibility of the client to make sure they use this minimum 1hr design time efficiently.
2.4 Urgent work. Creative Digital Ltd will charge a 15% urgency surcharge to all accounts where we have had to prioritise the clients work over other clients in order to meet a deadline not within a normal timeframe (3 – 5 business days). The client will be notified of this cost prior to the job commencing.
2.5 Termination. The Client is responsible for all time spent on the project, if the project is terminated at any point the client is still responsible for all time spent on the project to date.
2.4 Additional & resource costs. The project estimate includes Creative Digital Ltd’s fee only. Any and all outside costs will be billed to Client unless specifically otherwise provided for in the Proposal. All stock resources are additional to the quote unless explicitly stated. These includes such items as fonts, stock images, icon sets, templates, plugins and other external resources.
2.5 Overdue invoices. If full payment for the Goods or services is not made on the due date, then without prejudice to any other remedies available to us; We may cancel, pause or withhold current or future supplies of any Goods or services. Interest on monies more than 30 days overdue shall be charged at a rate of 10% per month, accrued daily. Interest shall continue to accrue both before and after judgment. You shall be responsible for all costs incurred by us by recovering such monies, this includes any legal or debt collection fees Creative Digital may incur in an attempt to recover overdue monies.
3.1 General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Creative Digital Ltd’s standard hourly rate of $100 per hour.
3.2 Substantive Changes. If Client requests or instructs Changes that amount to a revision in or near excess of ten percent (10%) of the time required to produce the Deliverables, and or the value or scope of the Services, Creative Digital Ltd shall be entitled to submit a new and separate Proposal to Client for written approval.
3.3 Timing. Creative Digital Ltd will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client acknowledges and agrees that Creative Digital Ltd’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal.
3.4 Testing and Acceptance. Creative Digital Ltd will exercise reasonable efforts to test Deliverables and to make all necessary corrections prior to providing Deliverables to Client. Client, within five (5) business days of receipt of each Deliverable, shall notify Creative Digital Ltd, in writing, of any objections, corrections, changes or amendments Client wishes made.
3.5 Warranty after delivery. Creative Digital Ltd will promptly fix any known errors in relation to existing functionality a finished site may suffer after delivery, for a period of 10 business days, under this quotation for a period of 10 business days. It is the clients responsibility to re-test their own website thoroughly upon launch and report any bugs for fixing within the first 10 days.
4.1 General. Creative Digital Ltd retains the right to reproduce, publish and display the Deliverables in Creative Digital Ltd’s portfolios and websites, and other media or exhibits for its own promotion.
4.2 Link to Creative Digital Ltd. All quotes for digital work include a $1000 discount (exc GST) for the application of a “Designed by Creative Digital” (Or similar) link and / or badge in a subtle position and colour scheme at the bottom of a finished public project, If clients wishes for this to be removed this $1000 (exc GST) discount will no longer apply.
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party (“Confidential Information”). Each party, shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal. Upon termination of this agreement pursuant to section 8 of this agreement, each party shall return or, as requested – destroy, the other party’s Confidential Information.
6.1 By Client. The Client warrants to Creative Digital Ltd that
a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content.
b) the Client Content does not infringe the rights of any third party and the Client shall comply with any licensing agreements governing the use of Third Party Materials, and,
c) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
d) Client at no point during, before or after the build shall withhold payment due for any reason.
e) Client agrees this set of terms takes precedence over any terms set by the client, and by the client agreeing to work with Creative Digital limited they agree that they shall abide by all the terms set out in this agreement.
6.2 By Creative Digital Ltd. Creative Digital Ltd warrants and covenants to Client that:
a) Creative Digital Ltd will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
b) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Creative Digital Ltd and/or its independent contractors,
c) the Final art does not infringe the rights (Including intellectual property rights) of any party to the best of the Creative Digital’s knowledge and belief without having made specific enquiry. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement, all representations and warranties of Creative Digital Ltd shall be void.
d) Except for the express representations and warranties stated in this agreement, Creative Digital Ltd makes no warranties whatsoever.
6.3 Except for the intellectual property warranty provided by Creative Digital Limited at clause 6.2(b) and 6.2(c) Creative Digital Limited is not liable for any breach of warranty, representation made to the Client or other breach of this Agreement unless the Client notifies Creative Digital Limited in writing of the breach within 20 working days following completion of the particular Services or any website “going live”.
6.4 The total of all warranty claims made by the Client under this Agreement shall not exceed the amount paid by the Client to Creative Digital Limited for the Services.
7.1 Creative Digital Limited is not liable to the Client or any other person or entity and excludes all liability to those persons for any damage or loss, direct or indirect, incidental, special or consequential, whether or not that damage was foreseeable, which is related to or caused by:
a) reason of delay in delivery of any Services including the failure to achieve any dates specified in this Agreement, whatever the cause of the delay;
b) circumstances beyond the control of Creative Digital Limited including, without limitation, war, civil disturbance, acts of terrorism, natural disasters, strikes, or the failure of a third party supplier approved by the Client to provide services to the level, quality or continuity required by Creative Digital Limited;
c) any computer virus accidentally introduced to the Client’s computer system;
d) any third party act or attempt to:
i. gain unauthorised access to any portion or feature of any website or interface developed by Creative Digital Limited;
ii. obtain any materials, information or documents through any electronic means developed by Creative Digital Limited which was not purposely made available by the Client to that party, including without limitation, hacking, password mining or otherwise accessing any electronic information system without authorisation;
iii. test the vulnerability of the information systems developed by Creative Digital Limited or any network connected to those information systems;
iv. upload or use any software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any Client electronic system;
v. use any Client system in any unlawful manner or in any other manner that could damage, disable, overburden or impair the system;
vi. use automated scripts to collect information from or otherwise interact with the Client’s systems.
7.2 The Client agrees that to the extent that Services are for business purposes all provisions of the Consumer Guarantees Act 1993 are excluded to the maximum extent allowed under section 43(2) of that Act.
7.3 Creative Digital Limited is not liable to the Client in contract, tort or otherwise for the loss of any business opportunity, any consequential, indirect, or pure economic loss suffered by the Client as a result of any defect in the Services or any failure by us to perform our obligations under this Agreement, even if such loss was, or should have been, within our contemplation.
7.4 Without restricting any other provision of this Agreement which limits or excludes liability to the Client, any claim which the Client may have against Creative Digital Limited, whether in contract, tort or otherwise as a result of the Services shall be limited, at the option of Creative Digital Limited to either:
a) Creative Digital Limited remedying any defect by providing additional Services at its cost; or
b) the amount paid by the Client to Creative Digital Limited in respect of the defective Services.
8.1 Without limiting any rights or remedies of Creative Digital Limited, the Client indemnifies Creative Digital Limited, as a continuing indemnity, against all costs, losses, liabilities, claims, demands, damages, fines, and penalties of or incurred by Creative Digital Limited arising directly or indirectly out of, or in connection with, any breach of this Agreement by the Client.
9.1 This Agreement shall commence upon the date Client first makes contact with Creative Digital Ltd and shall remain effective until the Services are completed and delivered.
9.2 This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:
a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.
9.3 In the event of termination by the client, Creative Digital Ltd shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Creative Digital Ltd or Creative Digital Ltd’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
9.4 In the event of termination by Client and upon full payment of compensation as provided herein, Creative Digital Ltd grants to Client such right and title as provided for in 9.0 of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
10.1 Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to Creative Digital Ltd a nonexclusive, non-transferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Creative Digital Ltd’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.
10.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Creative Digital Ltd shall inform Client of all Third Party Materials that may be required to perform the Services or otherwise integrated into the Final Art. Under such circumstances Creative Digital Ltd shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Creative Digital Ltd shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein. In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of third party art, Client hereby indemnifies, saves and holds harmless Creative Digital Ltd 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 Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Art.
10.3 Preliminary Works. Creative Digital Ltd retains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to Creative Digital Ltd within thirty (30) days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of Creative Digital Ltd.
10.4 Original Artwork. Creative Digital Ltd retains all right and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork. Client shall return all original artwork to Creative Digital Ltd within thirty (30) days of completion of the Services.
10.5 Trademarks. Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of pocket expenses due, Creative Digital Ltd assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Creative Digital Ltd for use by Client as a Trademark. Creative Digital Ltd shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment. Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless Creative Digital Ltd from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.
10.6 Creative Digital Ltd Tools. All Creative Digital Ltd Tools are and shall remain the exclusive property of Creative Digital Ltd. Creative Digital Ltd hereby grants to Client a nonexclusive, non-transferable (other than the right to sub license such uses to Client’s Web hosting or Internet service providers), perpetual, worldwide license to use the Creative Digital Ltd Tools solely to the extent necessary with the Final Deliverables for the Project. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Creative Digital Ltd Tools comprising any software or technology of Creative Digital Ltd.
Creative Digital Ltd hereby grants to Client the exclusive, perpetual and worldwide right and license to use, reproduce and display the Final Art solely in connection with the Project as defined in the Proposal and in accordance with the various terms and conditions of this Agreement. The rights granted to Client are for usage of the Final Art in its original form only. Client may not crop, distort, manipulate, reconfigure, mimic, animate, create derivative works or extract portions or in any other manner, alter the Final Art.
Creative Digital Ltd shall have the right to document, photograph or otherwise record all completed designs or installations of the Project, and to reproduce, publish and display such documentation, photographs or records for Creative Digital Ltd’s promotional purposes in accordance with 4.0 of this Agreement.
Client acknowledges that Client shall be responsible for performing the following in a reasonable and timely manner:
a) Communication of administrative or operational decisions if they affect the design or production of Deliverables, and co-ordination of required public approvals and meetings;
b) Provision of accurate and complete information and materials requested by Creative Digital Ltd such as, by way of example, not limitation, site plans, building plans and elevations, utility locations, colour/material samples and all applicable codes, rules, and regulation information;
c) Provision of approved naming, nomenclature; securing approvals and correct copy from third parties such as, by way of example, not limitation, end users or donors as may be necessary;
d) Final proofreading and written approval of all project documents including, by way of example, not limitation, artwork, message schedules, sign location plans and design drawings before their release for fabrication or installation. In the event that Client has approved work containing errors or omissions, such as, by way of example, not limitation, typographic errors or misspellings, Client shall incur the cost of correcting such errors;
e) Arranging for the documentation, permissions, licensing and implementation of all electrical, structural or mechanical elements needed to support, house or power signage; coordination of sign manufacture and installation with other trades; and
f) Bid solicitation and contract negotiation; sourcing, establishment of final pricing and contract terms directly with fabricators or vendors.
Creative Digital Ltd shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with applicable rules and regulations. However, Creative Digital Ltd is not an expert and makes no representations or warranties in connection with compliance with such rules, codes or regulations. The compliance of the Final Deliverables with any such rule, codes or regulations shall be the responsibility of Client. Creative Digital Ltd shall use commercially reasonable efforts to ensure the suitability and conformance of the Final Deliverables.
