The boring but very important stuff.
While we do like to think of ourselves as relaxed and easy going creatives, we do need to have a solid professional business backbone to remain competitive in this industry. Our terms of trade are concise so both the client’s and Volcanic’s standard business practices are clearly defined, protected and accountable.
Work Samples: To show off our work together (as well as to other customers looking for wow-factor or a particular finish), we usually set aside and archive 2-5 portfolio samples. Full description is found in 4.1
1.1 “Company” shall mean Gregurke Enterprise trading as Volcanic Creative, it’s successors and assigns or any person acting on behalf of and with the authority of Volcanic Creative.
1.2 “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any estimation, work authorisation or other form as provided by the Company to the Client.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Company to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, estimation, work authorisation or any other forms as provided by the Company to the Client.
1.5 “Services” shall mean all Services supplied by the Company to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between the Company and the Client in accordance with clause 3 of this contract.
2.1 Any instructions received by the Company from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by the Company shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of the Company.
2.4 The Client shall give the Company not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, phone number, facsimile number, or business practice). The Client shall be liable for any loss incurred by the Company as a result of the Client’s failure to comply with this clause.
2.5 None of the Company’s agents, representatives or employees are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Company in writing. The Company will not be bound by, or held liable for any such unauthorised statements.
3. Price And Payment
3.1 At the Company’s sole discretion the Price shall be either: (a) as indicated on invoices provided by the Company to the Client in respect of Goods supplied; or (b) the Company’s estimated Price (subject to clause 3.2) which shall be binding upon the Company provided that the Client shall accept the Company’s estimate in writing within thirty (30) days.
3.2 The Company reserves the right to change the Price in the event of any variation in scope to the Company’s estimation.
3.3 At the Company’s sole discretion a deposit may be required.
3.4 At the Company’s sole discretion: (a) payment shall be due on delivery of the Goods; or (b) payment shall be due before production of the Goods.
3.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due fourteen (14) days following the date of the invoice.
3.6 Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and the Company.
3.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
3.8 Should any project extend beyond 1 calendar month, a tallied milestone invoice will be submitted monthly until the project is completed. Subsequently the final and balance invoice will be for the final agreed amount as well as any additional Client requests implemented above and beyond the original estimate.
4. Delivery Of Goods
4.1 Work Samples: Unless otherwise arranged in writing, Volcanic Creative may use any project for self promotional purposes, and if physically produced (such as print or promotional material) we may set aside and archive 1-5 samples from that order, so please allow for this when calculating your final order quantities. Should a client have any queries on this, please contact us to discuss your needs.
4.2 At the Company’s sole discretion delivery of the Goods shall take place when: (a) the Client takes possession of the Goods at the Company’s address; or (b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by the Company or the Company’s nominated carrier); or (c) the Client’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Client’s agent.
4.3 At the Company’s sole discretion the costs of delivery are: (a) included in the Price; or (b) in addition to the Price; or (c) for the Client’s account.
4.4 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then the Company shall be entitled to charge a reasonable fee for redelivery.
4.5 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
4.6 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
4.7 The failure of the Company to deliver shall not entitle either party to treat this contract as repudiated.
4.8 The Company shall not be liable for any loss or damage whatever due to failure by the Company to deliver the Goods (or any of them) promptly or at all.
5.1 If the Company retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
5.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Company is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
6.1 Whilst every care is taken by the Company to carry out the instructions of the Client, it is the Clients responsibility to undertake a final proof of the Goods prior to final production (including but not limited to, printing, uploading of website, multimedia production, merchandise production, radio/TV/ press advertising production, marketing strategy). The Company shall be under no liability whatsoever for any errors or omissions made by the Client in the final proof reading.
7.1 The Company and Client agree that ownership of the Goods shall not pass until: (a) the Client has paid the Company all amounts owing for the particular Goods; and (b) the Client has met all other obligations due by the Client to the Company in respect of all contracts between the Company and the Client.
7.2 Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Company’s ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that: (a) where practicable the Goods shall be kept separate and identifiable until the Company shall have received payment and all other obligations of the Client are met; and (b) until such time as ownership of the Goods shall pass from the Company to the Client the Company may give notice in writing to the Client to return the Goods or any of them to the Company. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and (c) the Company shall have the right of stopping the Goods in transit whether or not delivery has been made; and (d) if the Client fails to return the Goods to the Company then the Company or the Company’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and (e) the Client is only a bailee of the Goods and until such time as the Company has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for the Company; and (f) the Client shall not deal with the money of the Company in any way which may be adverse to the Company; and (g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Company; and (h) the Company can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and (i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that the Company will be the owner of the end products.
8. Client’s Disclaimer
8.1 The Client hereby disclaims any right to rescind, or cancel any contract with the Company or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by the Company and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgement.
9.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Company of any alleged defect, shortage in quantity, damage or failure to comply with the description or estimate. The Client shall afford the Company an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Company has agreed in writing that the Client is entitled to reject, the Company’s liability is limited to either (at the Company’s discretion) replacing the Goods or repairing the Goods. Where the Client is a consumer as defined in the TPA then the client shall also be entitled to a refund.
10.1 Goods will not be accepted for return other than in accordance with 9.1 above.
11. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
11.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
12.1 For Goods not manufactured by the Company, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Company shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
13. Intellectual Property
13.1 Where the Company has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in the Company, and shall only be used by the Client at the Company’s discretion.
13.2 The Client warrants that all designs or instructions to the Company will not cause the Company to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Company against any action taken by a third party against the Company in respect of any such infringement.
13.3 Where the Company has provided photographic (digital or otherwise) images for the Client, at the Company’s sole discretion any such images may be subject to ongoing licence payments for use of such images. The period of any such licence is determined by the Company from time to time.
13.4 The Client shall indemnify the Company against any claims by third parties for patent, trademark, design or copyright infringement, directly or indirectly arising out of the design, workmanship, material, construction, or use of the Goods or any other deficiency therein. Where the Client has supplied drawings, sketches, files or logo’s to the Company, the Client warrants that the drawings, sketches, files or logo’s do not breach any patent, trademark, design or copyright, and the Client agrees to indemnify the Company against any action taken by a third party against the Company.
13.5 The Company may grant the Client a licence to use the Intellectual Property referred to in clause 13.3 in relation solely to the operation of the Client’s business however, the Client shall not use nor make copies of such Intellectual Property in connection with any work or business other than the work or business specified in writing to the Company unless express approval is given in advance by the Company. Such licence shall terminate on default of payment or any other terms of this agreement by the Client.
14. Default & Consequences of Default
14.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement.
14.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including legal costs on a solicitor and own client basis and the Company’s collection agency costs.
14.3 Without prejudice to any other remedies the Company may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. The Company will not be liable to the Client for any loss or damage the Client suffers because the Company has exercised its rights under this clause.
14.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
14.5 Without prejudice to the Company’s other remedies at law the Company shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable in the event that: (a) any money payable to the Company becomes overdue, or in the Company’s opinion the Client will be unable to meet its payments as they fall due; or (b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
15. Security And Charge
15.1 Despite anything to the contrary contained herein or any other rights which the Company may have howsoever: (a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Company or the Company’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Client and/or the Guarantor acknowledge and agree that the Company (or the Company’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met. (b) should the Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Company from and against all the Company’s costs and disbursements including legal costs on a solicitor and own client basis. (c) the Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Company or the Company’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 15.1.
16.1 The Company may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice the Company shall repay to the Client any sums paid in respect of the Price. The Company shall not be liable for any loss or damage whatever arising from such cancellation.
16.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by the Company (including, but not limited to, any loss of profits) up to the time of cancellation.
17.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria and are subject to the jurisdiction of the courts of Victoria.
17.3 The Company shall be under no liability whatsoever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Company of these terms and conditions.
17.4 In the event of any breach of this contract by the Company the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
17.5 The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by the Company.
17.6 The Company may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
17.7 The Company reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Company notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
17.9 The failure by the Company to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Company’s right to subsequently enforce that provision.