Studio 1 Design : Dev Terms & Conditions

Agreement between Studio 1 Pty Ltd ABN 46 082 517 539 (we or us) and you.

You wish to appoint Studio1 Design to provide you with the services that you have requested through the website found at Studio1Design.com (Website) or otherwise provided in a Quote, and we agree to provide those services, in accordance with the terms and conditions set out below (Terms).

You acknowledge and agree that you have had sufficient chance to read and understand the Terms, and you agree to be bound by them.

1. Definitions and Interpretation

• 1.1 In these terms and conditions, the following definitions apply unless otherwise stated:
  • ‘Background IP’ means Intellectual Property Rights owned by either party immediately prior to the date of this agreement or developed independently of this agreement.
  • ‘Business Day’ means a day (other than a Saturday, Sunday, or public holiday) when banks in Melbourne are open for business.
  • ‘Agreement’ means the contract between us and you for the supply of Services governed by these Terms and the Order.
  • ‘You’ means the individual or business entity who purchases Services from us and whose details are set out in the Order.
  • ‘Force Majeure Event’ means an event beyond the reasonable control of either party, including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, or default of suppliers or subcontractors.
  • ‘us’ & ‘We’ means Studio1 Pty Ltd ABN 46 082 517 539.
  • ‘Intellectual Property Rights’ means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets), and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
  • ‘Moral Rights’ means the right of attribution, the right against false attribution, and the right of integrity of authorship as defined in the Copyright Act 1968 (Cth).
  • ‘Order’ means the order placed by you by accepting our Quote or by making payment for the Services.
  • ‘Quote’ means the written quotation prepared by us which contains our proposals for providing Services to you.
  • ‘Services’ means the services we will provide to you as specified in the Quote.
  • ‘Specification’ means the description or specification of the Services in the Quote.
  • ‘Terms’ means these terms and conditions as updated from time to time by us.

2. Terms and Conditions

• 2.1 These Terms shall apply to all agreements concluded between us and you to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing.
• 2.2 These Terms and the Order may only be varied by express written agreement between us and you.

3. The Agreement

• 3.1 The Order constitutes an offer by you to purchase the Services in accordance with these Terms. You shall ensure that the terms of the Order and any relevant Specification are complete and accurate.
• 3.2 The Order shall only be deemed to be accepted when we issue a written acceptance of the Order, or when we have started to provide the Services having received the Order, whichever happens first.
• 3.3 You acknowledge that you have not relied on any statement, promise, or representation made or given by or on behalf of us which is not set out in the Agreement. Any samples, drawings, descriptive matter, or advertising issued by us and any descriptions or illustrations contained in our catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Agreement or any other contract between us and you for the supply of Services.

4. Our Obligations

• 4.1 We warrant that we will provide the Services as stipulated in the Order using reasonable care and skill to conform in all material respects with the Specification.
• 4.2 We shall have the right to make any changes to the Services which are necessary to comply with any applicable law.
• 4.3 We will always retain responsibility for the provision of the Services. You acknowledge that some services may be provided by experienced professional subcontractors which we engage.

5. Your Obligations

• 5.1 You shall provide assistance and technical information to us, as reasonably required by us in sufficient time to facilitate the execution of an Order in accordance with any estimated delivery dates or milestones.
• 5.2 You shall have sole responsibility for ensuring the accuracy of all information provided to us and warrants and undertakes to us that your employees assisting in the execution of an Order have the necessary skills and authority.

6. Fees and Costs

• 6.1 In consideration for us providing the services, you must pay all fees, charges, and costs set out in the Quote.
• 6.2 If you require any services that are not contained in the original Quote, or if there are elements of the services which require additional time, material, or resources to be provided by us, including if there is a request for changes or further services after approval of a deliverable, then we will advise you of the additional services and additional fees required in a revised Quote before providing you with the additional services.

7. Payment

• 7.1 Payment for services must be paid in full prior to commencement. Our invoice will be provided to you following receipt of the Order.
• 7.2 Our services will only commence after payment is received. However, if we do commence work prior to receiving payment, this does not in any way prejudice our right to seek payment.
• 7.3 The Quote will set out the currency of the price. Unless otherwise expressly stated, all prices are exclusive of any goods and services taxes or other duties. You will be responsible for paying us for any duties that apply to the Order.
• 7.4 We will send an invoice for you to pay directly into our bank account that we have set up in your country so that it is a local bank transfer for you. If you prefer to pay by credit card, just let us know; however, we will need to add 1.7% to the total amount to cover card processing fees.

8. Timing

• 8.1 We will use reasonable commercial endeavours to deliver the Services in accordance with any agreed timeframes, but we do not guarantee any timing estimates and we will not be in breach of our obligations if we fail to meet any such timelines.

9. Intellectual Property Rights

• 9.1 You acknowledge and agree that all Intellectual Property Rights in all creation files, working files, artwork, and other documents provided by us in connection with the services vest in us on their creation. For the avoidance of doubt, this does not include your Background IP or any licences (such as image licences).
• 9.2 Upon full payment of our fees, but subject to clause 9.3, we will assign to you all Intellectual Property Rights in the project, except in relation to any of our Background IP. In such case, we have a perpetual, irrevocable licence to use the relevant project Intellectual Property Rights unless agreed otherwise in writing. For the avoidance of doubt, Intellectual Property Rights that we have agreed to transfer to you do not include any licences (such as image licences) or other Intellectual Property Rights that we are not able to assign.
• 9.3 Each party retains ownership of its Background IP and grants to the other party a non-exclusive, royalty-free licence as follows:
  • for us, to the extent necessary to enable us to provide the services, exercise our rights in accordance with the provisions of these terms and conditions, and otherwise carry out our obligations under these terms and conditions, and
  • for you, only for the purpose and scope of the Services, unless otherwise agreed in writing.
• 9.4 If, during the course of providing the Services, we develop, discover, or first reduce to practice a concept, product, or process which is capable of being patented, then such concept, product, or process will remain our property and you must not use or otherwise appropriate such property without first obtaining our written consent.
• 9.5 To the extent permitted by applicable laws and for your benefit, we will, upon your request in writing, procure the consent from the holder of any moral rights in the project.
• 9.6 We may purchase rights to images that we use in providing the services to you. Such images may be subject to a licence agreement between us and a third party that may restrict your use of those images. Please ask us if you would like to be given a copy of the terms of any such licence. Unless otherwise agreed in writing, we may at our discretion use images that have been used in providing the services to you, with other clients or on other works. If you require specific images, you may be required to pay additional fees for that use. Even if we agree to provide an image to you exclusively, we cannot guarantee that the image will not be used by other third parties who may have obtained these images from another party.
• 9.7 You hereby irrevocably license us to use and display your name, figure, logo, etc. as a reference on our website, other marketing materials, or types of media whilst you are a client of ours and for 12 months after the agreement terminates.
• 9.8 You agree that for a period of 12 months from the launch of your website, we may include in the site-wide footer a statement that says: ‘Who Designed This Website?’. When the link is pressed, it will link to our website.

10. Warranties and Liability

• 10.1 You warrant that all work and materials provided by you (including your Background IP) will be free and clear of all liens and encumbrances and may be lawfully used by us without infringing upon the rights of others, including, and without limiting the generality of the foregoing, any copyright, trade secret, patent, or trademark rights of any third party.
• 10.2 You acknowledge that you have not relied on any advice, representation, or warranty given by us in connection with the Services that is not expressly stated in this document.
• 10.3 To the extent permitted by law, all warranties, conditions, and representations by us are excluded. If a term is implied by law into this document and the law prohibits provisions in a contract excluding or modifying liability under that term, then it will be included in this document. However, our liability for breach of such term will be limited, at our option, to one or more of the following:
  • the supply of the Services again; or
  • the payment of the cost of having the Services supplied again.
• 10.4 If you are not happy with our Services, to the extent permitted by law, we will not provide you with a refund but supply you with the Services again within reason until you are satisfied with the Services.
• 10.5 To the extent permitted by law, neither we nor any of our officers, employees, agents, or related bodies corporate will be responsible or liable in any way (including for negligence) for any loss, damage, liability, or costs incurred or sustained by you or claims made against you, and you agree not to make any claim against us, due to or arising out of our provision of the Services.
• 10.6 Without limitation, we will under no circumstances be liable for any indirect or consequential losses, including loss of profits, loss of revenue, and loss of business opportunity.
• 10.7 You indemnify and hold us harmless in respect of any and all claims, loss, or damage of any kind whatsoever (including legal costs and disbursements on a full indemnity basis), arising directly or indirectly out of:
  • any act done by us in good faith and purportedly pursuant to a right granted to us under the provisions of this document;
  • any infringement by you of any third-party rights including third party rights in relation to
    • Intellectual Property Rights,
    • Breach of confidentiality
    • Breach of contract,
    • Defamation, and/or
  • any breach by you of any of the terms of this document.
• any breach by you of any of the terms of this document.
• 10.8 We do not guarantee that the Services will provide any specific results. In particular, and without limiting the foregoing, we make no guarantees, warranties, or representations as to sales or revenue that may be achieved or that you will receive any new or increased numbers or customers as a result of our Services.
• 10.9 We are not liable for downtimes, interference in the form of hacking, virus, disruptions, interruptions, faulty third-party software, search engines or websites on which a Service is dependent, or other deliveries from a third party. We shall use our reasonable efforts to assist in remedial efforts if so requested by you. Any work connected with remedial efforts as described above shall be charged to you separately.
• 10.10 We will use all reasonable endeavours to deliver Services relating to search engine optimisation, links, advertisements, banners, pay per click, and Google Analytics in accordance with the guidelines applicable to the relevant search engines. However, we are not liable for delayed or non-conforming performance due to changes made to standard terms, assessment algorithms, search criteria, viewing policy, prices, and campaign offers or other matters beyond our control and reserve the right to make changes to Services as a result of the same. In addition, we are not liable for other changes or discontinuation of search engines.

11. Confidentiality and Personal Data

• 11.1 A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes, or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents, or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents, or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Agreement, and shall ensure that such employees, agents, or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause shall survive termination of the Agreement.
• 11.2 The obligation in clause 11.1 shall not apply to any information which is or becomes publicly available otherwise than through a breach of this Agreement, is received without an accompanying obligation of confidence, is independently developed, or which is required to be disclosed by law.
• 11.3 Each party agrees to comply with its respective obligations under Australian Privacy legislation.

12. Force Majeure

• 12.1 Neither party shall be held liable for a Force Majeure Event.
• 12.2 If a party believes that a Force Majeure Event has occurred, such party shall immediately inform the other party of the start and end of the Force Majeure Event.
• 12.3 Notwithstanding the other provisions of the Terms, each party shall be entitled to terminate the Agreement without liability to the other by written notice to the other party in the event that the performance of the Agreement is impeded for more than 6 months due to a Force Majeure Event.

13. Termination

• 13.1 This agreement terminates 12 months from the date that we commence providing the Services.
• 13.2 If the provision of the Services is postponed or terminated by you, we will retain the development designs for six months from the date that we commence providing the services. After that date, if you wish to retain our Services again to continue with the provision of the previous services, we will provide you with a new Quote.
• 13.3 We reserve the right to suspend Services immediately at any time and without liability if you fail to perform your obligations under this Agreement.
• 13.4 If you breach any term or condition of this document and fail to remedy such breach within 14 days of you receiving written notification from us indicating the breach and requiring its remedy, then we may at our discretion treat this document as terminated, in which case we will retain the Intellectual Property Rights in the services even if we had previously agreed to assign it.
• 13.5 Termination due to a breach of this document by you does not in any way prejudice any of our rights, including our right to receive payment for services rendered.

14. Non-Solicitation

• 14.1 You must not during the term of this document, or for a period of 12 months following completion of any project that we undertake for you:
  • employ, contract, or hire the services of any of our personnel, or
  • induce or attempt to induce any of our personnel to terminate their agreements or contracts with us.

15. General

• 15.1 All notices and consents required or permitted to be given under this document must be in writing and given by personal service, pre-paid postage, a facsimile transmission, or email transmission at the addresses of the parties set out in this document or to such other address as either party may designate to the other by written notice.
• 15.2 Neither this document nor any rights or obligations of this document may be assigned or otherwise transferred by either party without the prior written permission of the other.
• 15.3 If we do not act in relation to a breach by you of this document, this does not waive our right to act with respect to that or subsequent or similar breaches.
• 15.4 Nothing stated in this document constitutes you and us as partners, or creates the relationship of employer and employee, master and servant, or principal and agent between the parties. Neither party shall have authority to make any statements, representations, or commitments of any kind, or to take any action which shall be binding on the other party, except as expressly provided in this document or authorised in writing.
• 15.5 If any provision of this document should be held to be invalid in any way or unenforceable, the remaining provisions must not in any way be affected or impaired. This document must be construed so as to most nearly give effect to the intent of the parties as it was originally executed.
• 15.6 These terms and conditions are governed by and to be interpreted according to the laws of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the courts of that State.