Terms & Conditions.
These Terms
1. These terms and conditions (Terms), together with any special conditions specified in the attached quote, govern the agreement between Benjamin Wojciechowski t/a Benj (ABN 48 233 042 322) (Benj, We, Us, Our) and the person or entity specified in the attached quote (You) for the supply of services by Us to You (Services). These Terms apply to the attached quote and any purchase order, estimate, brief, job, or other request for services. These Terms commence on the date that you accept a quote from Us, or the date that We commence providing the Services, whichever is earlier. You are deemed to have accepted these Terms if We supply Services after You receive these Terms. If You accept any quote on behalf of a business entity, you warrant that you have the authority to do so.
Our Services
2. We will provide the Services specified in Our quote and will use best endeavours to deliver any deliverables on such dates specified in Our quote. We are not liable for any delays or incomplete Services to the extent caused by Your delay or failure to provide any materials, approvals or instructions, or the events specified in clause 3 below.
3. You acknowledge that: (i) unless specified otherwise in a quote, the Services include up to 2 rounds of changes, if additional rounds of changes are required additional fees may apply and We may extend the delivery dates for the Services; (ii) if You request any changes to the Services once We have commenced the Services (including in connection with Services which You have already approved) or changes to the Deliverables (including if you request our working files), additional fees may apply and We may extend the delivery dates for the Services; (iii) if You fail to provide approvals or feedback on Services we deliver within 10 business days, we may suspend the Services; and (iv) for urgent or expedited requests, unless specified otherwise in a quote, We may charge at a priority rate of 1.5 x the quoted Fees.
4. You are responsible for final review and approval of all Services, including without limitation in relation to any words, images, logos, sizing, mediums, materials, media, design elements, composition, colour specifications. You acknowledge that we are not liable for any errors or faults with the Deliverables which were present or discoverable in the draft Deliverables, and you will pay for any additional fees or costs resulting from the provision of additional Services, or the variation of a provision for Services, necessary to remedy any such errors or faults.
Fees & Payment
5. You must pay the fees for Our Services specified in the quote (Fees). We will provide You with a tax invoice for the Fees. If You dispute any amount on an invoice, You must notify Us in writing within 7 days of receipt otherwise any such invoice will be deemed accepted. Unless specified otherwise in a quote, Our Fees are payable as follows: (a) 50% upfront; and (b) 50% on completion and delivery of the Services and Our invoices are due and payable within 30 days from the date of the invoice. You will pay or reimburse Us for pre-approved expenses that we incur in connection with the Services and we may require payment upfront for third party costs.
Intellectual Property
6. Unless specified otherwise in a quote, and subject to the payment of the Fees and any Third Party Material and Pre-existing Material, We assign to You all intellectual property rights in the results and proceeds of the Services and our Deliverables (Service Material) for the Permitted Use specified in a quote. Until You pay the Fees, We grant You a limited, revocable, non-transferable licence to the Service Material to the extent required for You to obtain the benefit of the Services.
7. If any third party material or content is specified in a quote (Third Party Material), subject to any usage restrictions specified in a quote or notified to You, We grant to You a perpetual, non-exclusive, non-transferable license to use such Third Party Material to the extent required for You to obtain the benefit of the Services.
8. We and our licensors retain sole ownership of intellectual property rights in materials which are developed prior to or independently of the Services, and all working materials, including any proprietary technologies, software, documentation, data, tools and know how, pitches, proposals, art files, creative assets, working files, designs or other works (Our Material). We will grant You a non-exclusive licence to use Our Material to the extent required for You to obtain the benefit of the Services, subject to any applicable third party restrictions.
9. You retain ownership of the intellectual property rights in all information and materials You provide to Us (Client Material) and You grant to Us a non-exclusive licence to use such Client Material for the purpose of Us providing the Services.
10. We may use the Client Material and Services Material to promote its involvement in the supply of the Services and its business, including in Benj’s portfolio, websites, third party trade publications and for industry awards.
Confidentiality
11. Each party must, and will take all reasonable steps to ensure that its officers, employees and personnel do, keep the other party’s Confidential Information strictly confidential. Neither party may at any time disclose or make use of Confidential Information in any manner whatsoever except as required by law or to obtain professional advice. “Confidential Information” means these Terms and such information that the receiving party should reasonably know to be confidential or which has otherwise been indicated as being confidential, including all financial matters, trade secrets, proprietary information, concepts, data, documentation, processes, procedures, “know how” and business plans.
Cancellations
12. You must provide us with 30 days written notice if you wish to cancel Our Services. If you cancel:
(a) If we have completed less than 50% of the Project – (i) You must pay us for Services provided up to the date of cancellation on a pro rata basis; (ii) We may keep any part of the Fee already paid which we determine is proportionate to the amount of Services provided up to the date of cancellation; and (iii) if applicable, We will refund any part of the Fee already paid which we determine relates to any Services not yet commenced by Us on a pro rata basis; and
(b) If we have completed more than 50% of the Project – (i) You must pay Us the entire Fees, costs and expenses specified in the quote, which is immediately payable to Us (including the balance of the Fees for Services not yet completed by Us).; (ii) We may keep any part of the Fee already paid which we determine is proportionate to the amount of Services provided up to the date of cancellation; and (iii) We have no obligation to refund any part of the Fee.
On termination or cancellation for any reason You will pay all non-cancellable third party fees or cancellation costs and You will assume all liability and obligations under all outstanding contracts and commitments made on Your behalf.
Our Liability
13. We do not make any warranties other than those specified in these Terms and, to the extent permitted by law, all liability is excluded. We will not be liable to You or your client in connection with the Services for any indirect, incidental or consequential damage or loss, however caused and even if such damage or loss was in the reasonable contemplation of the parties at the date of these Terms, including any loss of revenue, loss of production, loss of contract, loss of opportunity, loss of client, loss of reputation, loss of goodwill, punitive loss and similar damage or loss.
14. We do not warrant that the Services will cause You to achieve any business results or commercial performance, including in respect of any marketing communication, promotion, campaign or other project. We will not be liable for any discrepancy, error, fault, delay, or malfunction of any third party system, printer, network, vendor, software, or computer server or any other technology based platform.
15. Our liability for any damages resulting from or relating to the Services is limited to the amount paid by You under the quote during the 6 month period preceding the incident that gave rise to the claim.
16. Nothing in these Terms will be read so as to exclude any warranty, guarantee, right or remedy implied by law and which by law cannot be excluded. To the extent the law permits it to, We limit Our liability to the supply of the Services again or the payment of the cost of having the Services supplied again. In no event will We or our employees, officers or agents be liable for an aggregate amount in excess of the total dollar amount of Fees actually received by Us directly in connection with the Services.
Force Majeure
17. Neither party will be liable to the other party for any delay or failure to perform due to Force Majeure. Performance by the party of their obligations under these Terms will be suspended, without liability, for the period of the delay due to Force Majeure. If a delay or failure to perform a party’s obligations due to Force Majeure exceeds 30 days, either party may immediately terminate the Services by providing written notice to the other party. In these Terms, ‘Force Majeure’ means any act, omission or circumstance over which the affected party could not reasonably have exercised control including any acts of god, labour dispute, flood, fire, war, earthquake, act of terrorism, pandemic, third party communications or equipment failure, key personnel being incapacitated due to illness or injury, or governmental action but excludes a cancellation by Your or Your client.
Termination
18. Without prejudice to any other rights, We may terminate or suspend the provision of the Services and these Terms with You if you fail to comply with these Terms, and otherwise on 2 weeks’ notice. In such event, without limiting our rights at law, We are entitled to Fees for Services provided up to the date of termination on a pro-rata basis.
General
19. These Terms are governed by the laws of Victoria, Australia. You must pay any GST payable for the supply of the Services, as specified in a quote. Neither party may assign or novate their rights or obligations under these Terms without the prior written consent of the other party. We may subcontract or delegate any part of the Services. These Terms, together with any special conditions in specified in a quote, constitute the entire agreement between the parties. To the extent of any inconsistency between these Terms and the terms of any agreement provided by You, whether before or after the date of these Terms, these Terms will prevail. These Terms may only be varied by agreement in writing signed by both parties.
Enquiries
If you have any queries about our Terms & Conditions please contact:
Benj Branding & Design
1/40 Wattletree Road, Armadale VIC 3143
[email protected]
0468 380 665