Terms and conditions
By placing an order with Evolution Design Agency you agree to the terms and conditions outlined below. Placing an order verbally, in writing or via email communication will be deemed acceptance of the terms and conditions. Verbal instructions are accepted on the basis that Evolution Design Agency will not be held responsible for any error that may arise. Evolution Design Agency will be referred to as ‘EDA’, and You the ‘Client’. Cost estimate, quotes, agreements or orders are deemed as accepted upon proceeding communication, written, signed, received verbally or digitally communicating the commencement or continuance of before mentioned work.
1.1 Estimate. EDA has provided, and Client has approved, a cost Estimate for the Work based on information Client provided in a Design Brief and and/or other exploratory communications. Cost Estimates are valid for a period of 30 days from the date issued. EDA is not bound to honour Estimates that have expired. EDA retains the right to withdraw cost Estimates prior to expiration date. Estimates are provided by EDA in the following formats; Price Guide, Quotation, Quotation Agreement, Estimate or via verbal communication. It is the Clients responsibility to request Estimates in their required format. Estimates, agreements or orders are deemed as accepted upon proceeding communication, written, signed, received verbally or digitally communicating the commencement or continuance of before mentioned work.
1.2 Fee Schedule. The Client is required to make payment of 50% prior to the commencement of any Work undertaken by EDA. The balance is payable upon approval of Drafts, mock-ups or design proofs. Any printing must be paid in full upon ordering, no production shall commence until full payment is received from Client. Payments are not refundable. Work is completed to the reasonable satisfaction of the Client but subject to the terms of clause 2.2 ‘Approval of Drafts, Mock-ups or Design Proofs’ and clause 2.3 ‘Changes’ herein. EDA reserves the right to hold commencement of the Work until the initial 50% deposit has been paid in full. If, by the Client and EDA’s mutual agreement, the 50% deposit was not required prior to production, the total amount (and any additional charges) will be due upon completion of the Work. The delivery fee to most Australian destinations incurs a fee of $15 per address, per 5 kilograms. If the client requires delivery sooner than the provided expected delivery date the additional express delivery cost(s) will be at the Clients expense.
1.3 Cancellations. No refunds will be issued for cancelled orders. All cancelled print orders receive a minimum handling charge of $80.00. Additional charges may also apply for any materials used. If printing has commenced, no refund will be issued. EDA reserves the right to invoice the Client for any part or parts of the Work already completed. EDA retains the right to cease work upon receiving Clients requests, communication or instructions deemed as unprofessional or indecipherable. Payments are not refundable.
2. COMPLETION OF WORK
2.1 Supply of Materials. The Client will supply, in a timely manner, any materials and information required for EDA to complete the Work in accordance with this Agreement. Such materials may include, but are not limited to: photographs, written copy, fonts, logos and/or other printed materials. EDA accepts electronic files from Windows and Mac OS applications, which must be in line with EDA’s file specifications. EDA does not guarantee the successful use of any electronic files provided by Client. It is the Clients responsibility to request EDA’s file specifications. Where the Client’s failure to supply such materials leads to a delay in completion of the Work, EDA reserves the right to reasonably extend previously agreed deadlines for the completion of the Work. Where the Client’s failure to supply materials prevents progress on the Work for more than 30 days, EDA reserves the right to invoice the Client for any part or parts of the Work already completed. Any items supplied to EDA (including photos, CD’s, magazines, etc) will be held entirely at the customer’s risk. The Client warrants that it has copyright in or a license to authorize reproduction of all materials and files supplied to EDA including but not limited to artistic and literary works (“Works”) supplied by it to EDA for the purposes of its orders. The Client authorizes EDA to reproduce all and any of the Works for such purposes. Files supplied by Client that fail to adhere to EDA’s specifications may attract additional fees File correction / conversion is $120 per hour ($60.00 minimum).
2.2 Approval of Drafts, Mock-ups or Design Proofs. Upon EDA’s completion of any draft of the Work, the Client will be given an opportunity to review said draft(s). The Client will notify EDA, in writing, of any necessary alterations within 5 business days of receipt of the draft. If no alterations are requested within the 5-day review period, the draft(s) will be deemed to have been approved. Once approved or deemed approved, drafts may not be subsequently rejected or approval withdrawn, and the contract will be deemed to have been completed and payment under clause 1.2 ‘Fee Schedule’ will become due.
2.3 Changes or Revisions. Any verbal or written changes or revisions made by Client to the scope of the Work as laid out in the initial Design Brief following its commencement by EDA are subject to additional charges. Should such changes or revisions negate any part of the Work already completed at the time of the changes or revisions, Client accepts responsibility for payment of the completed Work and all services related to it, in addition to charges for the change or revision itself. If the Works have been produced by EDA, please note that unless otherwise stated the price shown includes up to 3 lots of changes or revisions. Any additional changes or revisions and drafts will attract additional charges ($60 minimum charge for any additional changes or revisions).
2.4 Assignment of Work. EDA reserves the right to assign subcontractors to complete certain parts of the Work in order to ensure quality and timely completion.
2.5 Printing. EDA accepts no responsibility for colour variation or representation for files that have not had a digital draft supplied to Client by EDA. EDA accepts no responsibility for printed errors that appear on drafts that have been approved by the Client. Hard copies supplied by the client are not used for colour reference or matching. Print colour may vary, from draft supplied to Client, from reprint to reprint, from stock to stock, from front to back, from job to job and between different printing processes. EDA will not be held liable for any jobs that are delayed. Trimming may vary up to two millimeters. It is the Clients responsibility to notify EDA of any defect in printed Works within 48 hours of receipt of goods. Whilst all care is taken in checking your files for file related errors that may reduce the quality of your job, EDA accepts no responsibility for files supplied by Client that are not print ready, additional fees may apply if this occurs.
3.1 Website Timeframes.EDA will provide the Client with a Time frame for each project submitted with the cost Estimate as part of the project Scope. It is the Clients responsibility to request a Timeframe if this item has been omitted. If the Client requires a deadline date sooner than outlined in the timeframe the Client shall notify EDA immediately in writing and afford EDA a reasonable time frame in which to complete such requests. The Client will be advised in writing if their request is achievable. Whilst EDA endeavors to complete tasks within scheduled timeframes unexpected delays can occur and can be out of EDA’s control. EDA shall in no circumstances be liable for delays.
Delays may occur if:
(a) The Client does not meet their requirements outlined in the Timeframe provided
(b) The Client does not provide items listed in clause 2.1 ‘Supply of Materials’ in a timely manner
(b) The Client does not provide items listed in clause 4.2 ‘Website General Requirements’ in a timely manner
(c) The Client requires multiple changes to design proofs
(d) The Clients payments are not received on time
(e) Required features do not initially perform to the Clients expectations
(f) Third party features, plugin’s or widgets do not function as expected
(g) Support tickets issued on the Clients behalf by EDA are pending action or resolve.
(h) Any equipment breakdowns or data loss is experienced by the Client or EDA
3.2 Immediate Requests, Public Holidays & Weekends. Any requests by the Client to EDA to provide immediate Services or Works will attract a 50% surcharge. Any requests by the Client toEDA to provide immediate Services or Works on weekends or Public Holidays will attract a 50% surcharge. Any requests by the Client to EDA to provide immediate Services or Works on weekends or Public Holidays will attract a 100% surcharge. Unless by prior agreement, EDA makes no guarantee to the Client on availability of staff to complete such services or works on weekends or Public Holidays. The Client will be advised in writing if their request is achievable. In circumstances where staff are unavailable to complete such requests, services or works will be provided during usual business hours and charged at standard rates. If the Client and EDA have a prior agreement to conduct such Services or Works on weekends or Public Holidays these undertakings will retain the above mentioned surcharge(s). All requirements and outcomes in clauses herein apply.
3.3 Website Restorations. In the event a Clients Website is subjected to a malicious attack, hack or malfunction, EDA offers no guarantee of immediate restoration. The Client will afford EDA a reasonable timeframe to complete such restorations. Furthermore if the Client has opted to forgo any Website Maintenance service offered by EDA to prevent an attack or malfunction any such restoration will attract a minimum fee of $240. Under no circumstances is the success of restoration guaranteed and is dependent on the level of attack or malfunction as well as the Clients selected hosting provider’s back-up policy, frequency and the time frame in which EDA is notified of any such site defects. Under no circumstances will EDA be held liable for any data loss caused by any such attack.
4.1 Website Design and Development. All references to ‘Work’ in clauses herein apply to Websites. It is the Clients responsibility to obtain a Website cost Estimate from EDA. This cost Estimate is based on the individual Clients requirements. EDA is required to provide all elements and features as listed in the cost Estimate. It is the Clients responsibility to ensure all required Website elements and features are included in this cost Estimate. EDA makes no further representations to the Client on the functionality or content of the Website. The Client shall inspect the Website upon delivery and shall within seven (7) days of delivery (time being of the essence) notify EDA of any alleged omission. The Client shall afford EDA an opportunity to inspect the Website within a reasonable time following delivery if the Client believes the Websites omits any required elements or features. For omitted elements or features, which EDA has agreed in writing that the Client is entitled to,00 it is EDA’s responsibility to provide omitted features or elements within a reasonable time. The Client is solely responsible for dealings with persons accessing the data or Website and the Client warrants that they will not refer complaints or inquiries to such data to EDA.
4.2 Website General Requirements. In addition to materials under clause 2.1 ‘Supply of Materials’, and requirements under clause 2.2 ‘Approval of Drafts, Mock-ups or Design Proofs’, clause 3.1 ‘Website Timeframe’ , clause 4.3 ‘Website Hosting Requirements’ and clause 4.4 ‘Content of Website and Undertakings’ the Client is required to provide the following items for all Website projects:
(a) Access to web hosting, hosting location and log in credentials.
(i) Client must ensure this service meets EDA’s hosting specifications, details as provided in website project ‘Scope’ under ‘Website hosting requirements’.
(ii) Hosting must point to Clients Domain Name(s).
(b) Approval of supplied approval of drafts, mock-ups or design proofs. (required to develop the website)
(c) Access to Clients website content (if required)
(d) Access to Clients logo (if inclusion is required)
(e) Access to Clients PayPal or merchant banking login credentials (if e-commerce is required)
(f) Access to MailChimp or e-Marketing login credentials (if mailing list integration is required)
(g) Access to all required Social Media; Facebook Page, Twitter, YouTube addresses and login credentials (if social media links are required)
4.3 Website Hosting Requirements. The Client will be offered the opportunity to host their website with EDA’s third party affiliate provider (recommended). If the Client selects to organise their own web hosting arrangements, final exported sites will be uploaded to Clients preferred host company providing EDA’s hosting specifications are adhered to as outlined in the ‘Scope’ provided to the client as part of the projects cost Estimate and are not in violation clauses herein. It is the sole responsibility of the Client to ensure that their chosen hosting package adheres to EDA’s specifications as outlined in the ‘Scope’ provided to the client as part of the projects cost Estimate. EDA reserves the right to refuse to upload a Website to a hosting package that does not adhere to these specifications, in this instance the site will otherwise be supplied on disc or USB.
4.4 Content of Websites and Undertakings. The Client is solely responsible for the content of the Website. EDA is not responsible for proofreading any content unless specifically agreed in writing. It is the Clients responsibility to provide all Website content including but not limited to clause 2.1 ‘Supply of Materials’, and requirements under clause 2.2 ‘Approval of Drafts, Mock-ups or Design Proofs’, clause 3.1 ‘Website Timeframe’ , clause 4.2 ‘Website General Requirements’, clause 4.3 ‘Website Hosting Requirements’ and clause 4.4 ‘Content of Website and Undertakings’, text, images, draft feedback, FTP access, merchant banking details, as well as any other requests by EDA in a timely manner. In circumstances where by the Client fails to provide required items mentioned herein to EDA in a timely manner an extension to deadlines and timeframes may result, furthermore EDA also reserves the right to cancel the job and invoice the Client for any part or parts of the Work already completed. The Client is responsible for providing this content in a clear and concise manner in accordance with EDA’s specifications. Content not provided in digital format will attract additional costs. Cost to Client for EDA’s time allowed for the insertion of content to the Clients Website will be included on the Clients cost Estimate, if the Client fails to provide the content in accordance with EDAs digital specifications resulting in the time allowed to be exceeded the Client is responsible for the increase in cost. Furthermore, if the Client provides additional content or replacement content once the initial content has been placed on the Website further costs will apply.
4.5 Website Defects. The Client shall inspect the Website on delivery and shall within seven (7) days of delivery (time being of the essence) notify EDA of any alleged defect, shortage in quantity, damage or failure to comply with the description or cost Estimate. The Client shall afford EDA an opportunity to inspect the Website within a reasonable time following delivery if the Client believes the Website is defective in any way. If the Client shall fail to comply with these provisions the Website shall be presumed to be free from any defect or damage. For defective Websites, which EDA has agreed in writing that the Client is entitled to reject, EDA’s liability is limited to either (at EDA’s discretion) replacing the Website or repairing the Website. Where the Client is a consumer as defined in the Trade Practices Act 1974 or the Fair Trading Acts, then the Client shall be entitled to either a, repair or replacement of the Website.
4.6 Website and Development Warranty. EDA will provide the Client with ongoing Website support for a period of seven (7) days of the date of delivery. EDA warrants that if any defect in any workmanship of the Website provided by EDA becomes apparent and is reported to EDA within seven (7) days of the date of delivery (time being of the essence) then EDA will either (at EDA’s sole discretion) replace or remedy the workmanship.
The conditions applicable to the warranty given by clause are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(ii) failure on the part of the Client to properly maintain
(iii) failure on the part of the Client to follow any instructions or guidelines provided by EDA; or
(iv) any use of any Goods otherwise than for any application specified on a cost Estimate, Scope or order form; or
(v) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(vi) fair wear and tear, any accident or act of God.
(b) Seven (7) days of the date of delivery the warranty shall cease and EDA shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without EDA’s consent.
(c) in respect of all claims EDA shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
(d) EDA is not responsible for:
(i) Any issues that may arise with PayPal or payment merchant or payment processing once the customer has left the Clients Website.
(ii) Ongoing support of the Website once final payment has been made. However, ongoing support can be arranged by consultation.
(iii) The cost of registering or renewing the domain name(s).
(iv) The cost of web hosting.
(v) The cost of registering or renewing or any associated costs involving SSL certificates
(vi) Any omissions of elements or features not mentioned by the Client after seven (7) days of the date of delivery.
4.6 Web Hosting, Domain Name & Services. Any domain name obtained on behalf of the Client will belong solely to the Client. The Client agrees to indemnify and hold harmless EDA against any claims that a Domain Name applied for, or obtained, violates the intellectual property rights of a third party. The Client warrants that the domain name sought is not a trademark of a third party. If the Client selects to organize their own web hosting arrangements, final exported sites will be uploaded to Clients preferred host company providing EDA’s hosting specifications are adhered to as outlined in the ‘Scope’ provided to the client as part of the projects cost Estimate and are not in violation of clause 4.3 ‘Website Hosting Requirements’ the site will otherwise be supplied on disc. Construction files of the site can be supplied on request and at EDA’s sole discretion may incur a fee. Client is responsible for providing EDA with relevant file uploading access details. EDA accepts no responsibility for:
(iii) The cost of renewing the domain
(iv) The cost of web hosting
(v) The cost of renewing or any associated costs involving SSL certificates
(vi) Any down times, delays, breakdowns or data loss caused by Internet Service Providers.
5.1 Payment. All invoices submitted to Client by EDA are payable within 7 business days of receipt unless otherwise specified on the invoice. The grant of any license or right of copyright to the Client is conditioned upon receipt of full payment of the total amount due.
5.2 Overdue Payment. If payment has not been received by the due date, EDA reserves the right to suspend ongoing Work for the Client until full payment of the outstanding balance has been received including but not limited to the suspension of the Client’s websites. Unpaid accounts will attract an overdue fee of 10% of the outstanding amount due, accumulative monthly. EDA holds the right to refer Clients unpaid accounts to a debt collection agency. If accounts remain unpaid the Client risks legal action and Client incurring additional cost. EDA may also provide details of Clients payment default to a credit reporting agency. Details of Clients payment default will become part of Clients credit history file for 5 years and will be available to authorised parties such as credit providers and may affect the ability to obtain future credit.
6.1 Third Parties.EDA shall not be held responsible for the unsatisfactory rendering of services provided by third parties, including but not limited to: subcontractors, couriers, printers, stock image suppliers, domain name registrars, and website hosting services, platforms, software, content management systems, fonts, plug-ins or widgets.
6.2 Relationship. The Client and EDA are independent parties and nothing in this Agreement shall constitute either party as the employer, employee, partner or joint venturer of the other party. Neither the Client nor EDA has any authority to assume or create any obligation or liability, either expressed or implied, on behalf of the other.
7. INTELLECTUAL PROPERTY
7.1 Warranty by Client as to Ownership of Intellectual Property Rights. The Client agrees to indemnify and hold harmless EDA from any and all claims, costs, and expenses, including attorney’s fees, due to materials included in the Work at the request of the Client for which no copyright permission or previous release was obtained, or uses which exceed the uses allowed pursuant to a permission or release. The Client indemnifies and will keep EDA indemnified against any liability, loss or expense suffered by EDA as a direct or indirect result of any use of the Works by EDA.
7.2 Reservation of Rights. All rights to the Work not expressly granted hereunder are reserved to EDA, including but not limited to all rights of ownership to sketches, drafts, comps, or other preliminary materials.
7.3 Display of Work. Client is granted full reproduction rights upon payment in full for the completed Work. The Client is granted the right to reproduce the work in a material form publish the work, use the Work in both the identity and promotion of their business, products or services. Ownership of goods shall not pass from EDA to the Client until the goods are paid for in full. EDA retains the right to use examples of the Work in portfolios, design publications, educational materials, competitions and for marketing purposes to depict the quality or range of its goods or services. When used for these purposes and where applicable, the Client will be given credit for usage of the project elements. This clause excludes stock imagery purchased from third party websites, where stock images have been used the third party stock image providers usage terms must be adhered to.
7.4 Trademarks, Design Patent and Copyright. Upon payment in full for the completed Work EDA transfers the assignment of copyright right to the Client. It is the Clients responsibility to obtain trademarks, design patent or copyright. EDA does not guarantee trademarks, design patent or copyright attainability.
8. RIGHTS AND RESPONSIBILITIES
8.1 Termination. In the event a Client has commissioned EDA to complete Works with turn-around times of 30 days or more, or the Client has commissioned EDA for a length of time being 30 days or more, the following applies: Either party may terminate this Agreement by giving 30 days written notice to the other of such termination. In the event that the Work is postponed or terminated at the request of the Client, EDA shall have the right to invoice the Client pro rata for Work completed through the date of the termination request, while reserving all other rights under this Agreement. If additional payment is due, it must be paid within 7 days of the Client’s written notification to stop Work. In the event of termination, the Client shall also pay any expenses related to the Work incurred by EDA and EDA shall own all rights to the incomplete Work(s).
8.2 Payment Default. Client shall assume responsibility for collection costs or legal fees necessitated by its default in payment. Under clause 5.2 ‘Overdue Payment’ and additional fees will become due.
8.3 Force Majeure. EDA shall not be held liable for breach of contract where that breach was due to software, hardware or electrical failure, natural events such as fire or other events beyond the control of EDA.
8.4 Pricing of Services. EDA reserves the right to alter its prices, at its discretion, without prior notice and without affecting existing contractual pricing agreements.
9.1 Privacy. Obtaining personal information In the event that the Client has provided its electronic address to EDA, the Client by its receipt of these terms and conditions acknowledges that EDA may use its electronic address for commercial purposes such as the promotion of EDA’s services or products; and hereby consents to and authorizes EDA to send commercial electronic messages to the client’s electronic address. Under no circumstances will EDA sell or otherwise disclose Clients personal information to any third party.
10.1 Jurisdiction. This Agreement shall be governed by the laws of Australia, which shall claim venue and jurisdiction for any legal action or claim arising from the contract between EDA and Client. This Agreement is void where prohibited by law.
10.2 Survival of Contract. Where one or more terms of the Agreement are void or unenforceable for any reason, all other terms of the Agreement will remain valid and enforceable.