All requests for services are bound by the following Terms & Conditions. By placing an order, requesting work or services 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 ‘us’, and you the Client as ‘you’. 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. We have provided, and you have approved, a cost Estimate for the Work based on information you 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. We are not bound to honour Estimates that have expired. We retain the right to withdraw cost Estimates prior to expiration date. Estimates are provided by us in the following formats; Price Guide, Quotation, Quotation Agreement, Estimate, via email or via verbal communication. It is your responsibility to request Estimates in your 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. You are required to make payment of 50% prior to the commencement of any Work undertaken by us. The balance is payable upon approval of drafts, mock-ups or design proofs. Any printing must be paid in full upon ordering, no print-production shall commence until full payment is received from you. Payments are not refundable. Work is completed to the reasonable satisfaction of you but is subject to the terms of clause 2.2 ‘Approval of Drafts, Mock-ups or Design Proofs’ and clause 2.3 ‘Changes’ herein. We reserve the right to hold commencement of the Work until the initial 50% deposit has been paid in full. If, by our mutual agreement, the 50% deposit was not required prior to production, the total amount (and any additional charges incurred) will be due upon completion of the Work or upon receipt of your invoice. Websites require a 50% deposit with the balance payable prior to publishing the site live at your Website address. If the Website development has been completed to the best of our ability with the content provided, and you are not ready to (or chooses not to) publish the site live or still has content to provide, after three months of the commencement of the project the balance will be payable. The delivery fee (for printing & products) 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. We do not offer delivery to PO Boxes.
1.3 Cancellations. No refunds will be issued for cancelled orders. All cancelled print orders receive a minimum handling charge of $80 +GST. Additional charges may also apply for any materials used. If printing has commenced, no refund will be issued. We reserve the right to invoice you for any part or parts of the Work already completed. We retain the right to cease work upon receiving your requests, communication or instructions deemed as unprofessional or indecipherable. Payments are not refundable.
2. COMPLETION OF WORK
2.1 Supply of Materials. You will supply, in a timely manner, any materials and information required for us 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. We accept electronic files from Windows and Mac OS applications, which must be in line with our file specifications. We do not guarantee the successful use of any electronic files provided by you. It is the your responsibility to request our file specifications. Where the your failure to supply such materials leads to a delay in completion of the Work, we reserve the right to reasonably extend previously agreed deadlines for the completion of the Work. Where your 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 us (including photos, USB’s, CD’s, hard drives, magazines, etc) will be held entirely at the your risk. You warrant that you hold copyright in or a license to authorise reproduction of all materials and files you supply to us; including but not limited to artistic and literary works (“Works”) supplied to us for the purposes of your order(s). You authorise us to reproduce any and all of the Works for such purposes. Files supplied by you that fail to adhere to our specifications may attract additional fees. File correction / conversion is $130 per hour ($65.00 minimum) +GST.
2.2 Approval of Drafts, Mock-ups or Design Proofs. Upon our completion of any draft of Work, you will be given an opportunity to review said draft(s). You will notify us, 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 you to the scope of the Work as laid out in the initial Design Brief following its commencement by us 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, you accept 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 us, please note that unless otherwise stated the estimate/invoice provided, includes up to 3 lots of minor revisions (30 minutes maximum). Any additional changes or revisions and drafts will attract additional charges ($130 per hour +GST for any additional changes or revisions).
2.4 Assignment of Work. We reserve the right to assign subcontractors to complete certain parts of the Work in order to ensure quality and timely completion.
2.5 Printing. We accept no responsibility for colour variation or representation, digital or printed. We recommend requesting a printed draft be supplied to you by us, at additional cost. We accept no responsibility for printed errors that appear on drafts that have been approved by the you. Hard copies supplied by the client are not used for colour reference or matching. Print colour may vary, from draft supplied to you, from reprint to reprint, from stock to stock, from front to back, from job to job and between different printing processes. We will not be held liable for any jobs that are delayed. Trimming may vary up to three millimetres. It is the Clients responsibility to notify us 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, we accept no responsibility for files supplied by you that are not print ready, additional fees may apply if this occurs.
3.1 Timeframes. we will provide the you with a timeframe 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 you require a deadline date sooner than outlined in the timeframe the you shall notify us immediately in writing and afford us a reasonable time frame in which to complete such requests. You will be advised in writing if your request is achievable. Whilst we endeavour to complete tasks within scheduled timeframes unexpected delays can occur and can be out of our control. We shall in no circumstances be liable for delays.
Delays may occur if:
(a) You do not meet or provide access to requirements or relevant content
(b) You dos not provide items listed in clause 2.1 ‘Supply of Materials’ in a timely manner
(b) You do not provide items listed in clause 4.2 ‘Website General Requirements’ in a timely manner
(c) You require multiple changes to design proofs
(d) Your payments are not received on time
(e) Required features do not initially perform to the your expectations
(f) Third party features, plugin’s or widgets do not function as expected
(g) Support tickets issued on the your behalf by us are pending action or resolve
(h) Any equipment breakdowns or data loss is experienced by the you or us.
3.2 Immediate Requests, Public Holidays & Weekends. Any requests received from the you to us to provide immediate services or works will attract a 50% surcharge. Any requests from the you to us to provide immediate services or works on weekends or public holidays will attract a 100% surcharge. Unless by prior agreement, we make no guarantee to the you on availability of staff to complete such services or works on weekends or public holidays. You will be advised in writing if your 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 we 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.
4.1 Website Design and Development. All references to ‘Work’ in clauses herein apply to Websites. It is the your responsibility to obtain a website cost estimate from us. This cost estimate is based on your individual requirements. We are required to provide all elements and features as listed in the cost estimate. It is your responsibility to ensure all required website elements and features are included in this cost estimate. We make no further representations to the you on the functionality or content of the website. You shall inspect the website upon delivery and shall within seven (7) days of delivery (time being of the essence) notify us of any alleged omission. You shall afford us an opportunity to inspect the website within a reasonable time following delivery if you believe the websites omits any required elements or features. For omitted elements or features, which we have agreed in writing that the you are entitled to, it is our responsibility to provide omitted features or elements within a reasonable time. You are solely responsible for dealings with persons accessing the data or website and you warrant that you will not refer complaints or inquiries to such data to us.
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’ you are required to provide the following items for all website projects:
(a) Access to web hosting, hosting location and log in credentials.
(i) You must ensure this service meets our hosting specifications,
(ii) Hosting must point to Clients Domain Name(s) Server (DNS).
(b) Approval of supplied drafts, mock-ups or design proofs. (required to develop the Website)
(c) Access to your website content (if required)
(d) Access to your logo (if inclusion is required)
(e) Access to your PayPal or merchant banking login credentials (if e-commerce is required)
(f) Access to your 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)
While your Website is in the design and/or development phase we recommend that you (the Client) compile all the relevant content (text and images) for your Website. Once development of your Website has been completed, your Website will be located at our web address on our servers, for example www.clientname.on.evolutiondesign.com.au Here you can view and edit its content until you are 100% happy with it. Once the Website has your approval we will then place it online at your website address. If after 3 months of your Website being developed, you have not provided the content for your pages (and/or online store) or choose not to publish your website live at this time, the remaining balance will be payable.
4.3 Website Hosting Requirements. You will be offered the opportunity to host your website with our third party affiliate provider GravIT (recommended). If the you select to organise your own web hosting arrangements, you must supply us with logins to your hosting account. Your final exported site(s) will be uploaded to your hosting account providing our hosting specifications are adhered to. It is your responsibility to request these specifications if they are omitted from your cost estimate. It is your sole responsibility to ensure that your chosen hosting package adheres to our specifications as outlined in the documentation provided to you as part of the projects cost estimate. We 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 zipped and supplied on disc or USB.
4.4 Content of Websites and Undertakings. You are is solely responsible for the content of your Website. We are not responsible for proofreading any content unless specifically agreed in writing. It is your 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, hosting/cPanel/FTP access, merchant banking details, as well as any other requests by us in a timely manner. In circumstances whereby you fail to provide required items mentioned herein to us in a timely manner an extension to deadlines and timeframes may result, furthermore we also reserves the right to cancel the job and invoice you for any part or parts of the Work already completed. You are responsible for providing all content in a clear and concise manner in accordance with our specifications. Content not provided in digital format will attract additional costs. The cost of the time allowed for the insertion of content to the Clients Website will be included on your estimate, if the you fail to provide the content in accordance with our digital specifications resulting in exceeded the time allowed you are responsible for the increase in cost. Furthermore, if the you provide additional content or replacement content once the initial content has been placed on the website further costs will apply.
4.5 Website Defects. You will inspect the website upon delivery and will within seven (7) days of delivery (time being of the essence) notify us of any alleged defect, shortage in quantity, damage or failure to comply with the description or cost estimate. You will afford us an opportunity to inspect the website within a reasonable time following delivery if you believe the website is defective in any way. If your fail to comply with these provisions the website shall be presumed to be free from any defect or damage. In instances of a website reported to be defective, and we have agreed in writing that the you are entitled to reject, our 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 Liability. In addition to clause 4.5 ‘Website Defects’ you expressly understand and agree that:
(a) To the extent permitted by applicable laws, we shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses resulting from the use of or inability to use the Website provided.
(b) To the extent permitted by applicable laws, in no event shall we or our suppliers be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with a website we provide, our Services or these Terms and Conditions (however arising including negligence). You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, partners, officers, directors, agents, employees, and suppliers harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of these Terms & Conditions or the documents it incorporates by reference (including the AUP), or your violation of any law or the rights of a third party.
(c) Your use of the website provided is at your sole risk. The website is provided on an “as is” and “as available” basis without any warranty or condition, express, implied or statutory beyond clause 4.7.
(d) We do not warrant that the website will be uninterrupted, timely, secure, or error-free.
(e) We do not warrant that the results that may be obtained from the use of the website will be accurate or reliable.
(f) We do not warrant that the quality of any products, services, information, or other materials purchased or obtained through the website will meet expectations, or that any errors in the website will be corrected.
4.7 Website and Development Warranty. We will provide you with Ongoing Website Support for a period of seven (7) days of the date of delivery. We warrant that if any defect in any workmanship of the website provided by us becomes apparent and is reported to us within seven (7) days of the date of delivery (time being of the essence) then we will either (at our 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; or
(ii) failure on the part of the Client to follow any instructions or guidelines provided by us; or
(iii) installation of third party plugins or third party integrations; 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 we shall thereafter under no circumstances be liable under the terms of the warranty.
(c) The warranty is void if the workmanship is repaired, altered or overhauled without our consent.
(d) In respect of all claims we shall not be liable to compensate the you for any delay in either replacing or remedying the workmanship or in properly assessing your claim.
(e) We are not responsible for:
(i) Any issues that may arise with PayPal, a payment gateway, payment merchant or payment processing once the customer has left your website.
(i) Any issues caused by plugins or third party integrations installed or configured on the site.
(ii) Ongoing support of the website unless a month-to-month support agreement is in place.
(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 down times, delays, breakdowns or data loss caused by Internet Service Providers.
(vii) Any omissions of elements or features, or any defects not mentioned by you after seven (7) days of the date of delivery
(viii) Any defects that arise or occur after seven (7) days of the date of delivery.
4.8 Ongoing Support. Upon the your site being published live onto the internet, you will receive 7 days complimentary Ongoing Support. At which time you may enter (optional) into a month-to-month Ongoing Support agreement. The inclusions of which, and level of service we will provide you is dependent on the chosen Ongoing Website Support Package (see here). At minimum, we will back-up, upgrade and test the site after each upgrade. If any compatibility issue or defect becomes apparent and is reported to us within seven (7) days of the date of delivery (time being of the essence) then we will (at our sole discretion) reinstate the back-up and remedy the issue or defect to the best of our ability. In situations where significant compatibility issues arise, loss of data may occur. Any records input into the Website including but not limited to e-commerce/online store sale processing, accessible via the website dashboard may be forfeited. We respectfully advise you not to rely on the website dashboard as your sole sales record. The conditions applicable to the warranty given by clause are:
(a) as listed in clause 4.7 above, and:
(b) The Ongoing Support warranty is void for the lifetime of the Website and we will not cover any defect or damage which may be caused or partly caused by or arise through:
(i) Any plugins or third party integrations installed or configured by you (or your representatives).
(ii) If plugins or third party integrations installed or configured fail, or obstruct the functionality of other aspect(s) of the site.
(iii) After-sales configuration by the you (or your representatives)
(iv) Access by the you (or their representatives) to the site beyond the WordPress Dashboard, including but not limited to editing of code, Cascading Style Sheet (CSS) edits, editing source files, theme editing.
(v) Access by the you (or your representatives) to complete site upgrades, updating WordPress versions, plugins versions.
(v1) Cooperating with our requests not to delete or access restricted areas or components of the site.
(vi1) Cooperating with our requests.
4.9 Website Restorations. In the event a your website is subjected to a malicious attack, hack or malfunction, we offer no guarantee of immediate restoration. You will afford us a reasonable timeframe to complete such restorations. Furthermore if you have opted to forgo our monthly Ongoing Support, (or any other monthly Website maintenance service offered by us) to prevent an attack or malfunction any such restoration will attract a minimum fee of $250 (+GST). Under no circumstances is the success of restoration guaranteed and is dependent on the level of attack or malfunction as well as the your selected hosting provider’s back-up policy, frequency and the time frame in which we are notified of any such site defects. Under no circumstances will we be held liable for any data loss caused by any such attack.
5. WEB HOSTING & DOMAIN MANAGEMENT
5.1 Web Hosting, Domain Name & Services. Any domain name obtained on behalf of you will belong solely to you. You agrees to indemnify and hold us harmless against any claims that a domain name applied for, or obtained, violates the intellectual property rights of a third party. You warrant that the domain name sought is not a trademark of a third party. If you select to organise your own web hosting arrangements, final exported sites will be uploaded to Clients preferred host company providing our hosting specifications are adhered to as outlined (see our brochures, and your quotation documentation) and are not in violation of clause 4.3 ‘Website Hosting Requirements’ the site will otherwise be supplied on disc or USB. Construction files of the site can be supplied on request and at our sole discretion and may incur a fee. You are responsible for providing us with relevant file uploading access details. We accepts no responsibility for any items listed in 4.7(e).
5. SOCIAL MEDIA
5.1 Social Media Services. We will supply Social Media services to you, as nominated on your scope, estimate or agreement at the fee as set by that agreement.
(a) Your first invoice in respect of your Social Media service will cover the set up fee and applicable monthly fee. Thereafter, we will invoice in respect of your monthly fee only. You must pay us by the due date specified on each invoice.
(b) You agree to do all things reasonably necessary to enable us or any third parties we engage to provide the Social Media service to you. This includes:
(i) providing access to social media account/s held by you (including passwords and usernames) on the nominated social media platform/s;
(ii) if necessary, granting permission to create new social media account/s and profile/s on the nominated social media platform/s under your name and to accept third party terms on your behalf in order to set up those accounts (and you understand that you will be bound by any third party terms that are accepted on your behalf).
(iii) granting permission to edit and manage your social media account/s on the nominated social media platform/s, including to make posts and create pages or channels, consistent with your social media strategy;
(iv) providing content to use in respect of your social media profile/s on the nominated social media platform/s; and
(v) cooperating with our requests.
(c) You must promptly inform us if you become aware of any breach or suspected breach of security in relation to your social media account/s on the nominated social media platform/s (such as loss, theft, or unauthorised disclosure or use of your username or password). Until you notify us of any breach of security, you will be personally liable for any unauthorised use of your social media account/s on the nominated social media platform/s.
(d) We will act with respect to the promotion of your brand on Social Media. If at any time offence is taken to posts, comments, messages or digital communication, made on your behalf or on behalf of your brand, we will not under any circumstances be held liable for damages. It is your responsibility to inform us immediately if such an event occurs and we will be afforded a reasonable amount of time to remove such material to the best of our ability.
5.6 Social Media Management Contract. All Social Media Management and Marketing Services are bound by the terms and conditions as set out herein, additionally for all Social Media services see ‘Social Media Agreement‘ for further terms and conditions
6.1 Marketing content. Any content provided by you to be used in relation to Marketing is subject to the warranties under Clause 9 (“Intellectual Property”).
6.2 Term. The terms of all Agreements and fees are confidential.
(a) Marketing services agreements are a minimum term of 3 months, unless stated otherwise in your agreement, or cancelled earlier by us. This term will be known as your “Campaign Period”.
(b) The Campaign Period commences on the date you sign or accept your Agreement. You may not cancel the supply of Marketing services during the Campaign Period.
(c) At the end of the Campaign Period, we will continue to provide the marketing services to you on a month to month basis. However, you or we may cancel the ongoing supply of the Marketing services on 30 days’ written notice to the other party.
6.3 Marketing Terms of Service. All Marketing Services are bound by the terms and conditions as set out herein, additionally the following must be agreed to prior to relevant services commencing; SEO, Search Marketing services ‘Search Marketing Contract‘, Google Ads Google Ads Contract and for all Social Media Services ‘Social Media Agreement‘.
6.4 Reporting and feedback We may use data that appears on your monthly reports for a variety of purposes, such as analytical and promotional purposes. Where we use this data in our promotional activities, we may identify you and your participation.
7.1 Payment. All invoices we submit to you 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 you is conditioned upon receipt of full payment of the total amount due.
7.2 Overdue Payment. If payment has not been received by the due date, we reserve the right to suspend ongoing work for the you until full payment of the outstanding balance has been received including but not limited to the suspension of the your websites. Unpaid accounts will attract an overdue fee of 10% of the outstanding amount due, accumulative monthly. We hold the right to refer your unpaid accounts to a debt collection agency. Debt collection fees of 20% will be passed on and payable by you. If accounts remain unpaid you risk legal action and incurring additional cost. We may also provide details of your payment default to a credit reporting agency. Details of your payment default will become part of your 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.
8.1 Third Parties. We 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, photographers, videographers, copy writers, domain name registrars, and website hosting services, platforms, software, content management systems, fonts, plug-ins or widgets.
8.2 Relationship. The Client and Evolution Design Agency 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 Evolution Design Agency has any authority to assume or create any obligation or liability, either expressed or implied, on behalf of the other.
9. INTELLECTUAL PROPERTY
9.1 Warranty by Client as to Ownership of Intellectual Property Rights. Upon ordering, you agree to indemnify and hold us harmless from any and all claims, costs, and expenses, including attorney’s fees, due to materials included in the work at your request, for which no copyright permission or previous release was obtained, or uses which exceed the uses allowed pursuant to a permission or release. You indemnify and will keep us indemnified against any liability, loss or expense suffered by us as a direct or indirect result of any use of the works by us.
9.2 Reservation of Rights. All rights to the work not expressly granted hereunder are reserved to us, including but not limited to all rights of ownership to sketches, drafts, comps, or other preliminary materials.
9.3 Display of Work. You are granted full reproduction rights upon payment in full for the completed Work. You are granted the right to reproduce the work in a material form, publish the work and use the work in both the identity and promotion of your business, products or services. Ownership of goods shall not pass from us to you until the goods are paid for in full. We retain 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, you 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.
9.4 Trademarks, Design Patent and Copyright. Upon payment in full for the completed Work we transfer the assignment of copyright right to you. It is your responsibility to obtain trademarks, design patent or copyright. We do not guarantee trademarks, design patent or copyright attainability.
10. EXCLUSION & LIMITATION OF LIABILITY
In addition to clause 4.5 ‘Website Defects’ and 4.6 Website Liability
TO THE FULL EXTENT PERMITTED BY LAW WE HEREBY EXCLUDE ALL CONDITIONS AND WARRANTIES NOT EXPRESSLY SET OUT HEREIN. EXCEPT AS SPECIFICALLY SET FORTH IN ELSEWHERE IN THIS AGREEMENT, WE MAKE OR GIVE NO EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, WITH RESPECT TO ANY GOODS OR SERVICES PROVIDED UNDER OR INCIDENTAL TO THIS AGREEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US, OUR RESELLERS, AGENTS, REPRESENTATIVES OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE EXPRESS WARRANTIES HEREBY GIVEN, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE.
Our total aggregate liability to you for any claim in contract, tort, negligence or otherwise arising out of or in connection with the provision of the Services shall be limited to the charges paid by you in respect of the Services which are the subject of any such claim and provided that you notify us of any such claim within one year of it arising. In no event shall we be liable to you for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.
In the event that this agreement constitutes a supply of goods or services to a consumer as defined in the Trade Practices Act 1974 (Cth) or any other national, State or Territory legislation (the Acts) nothing contained in this agreement excludes, restricts or modifies any condition, warranty or other obligation in relation to this agreement and the goods and you where to do so is unlawful. To the full extent permitted by law, where the benefit of any such condition, warranty or other obligation is conferred upon you pursuant to any of the Acts, our sole liability for breach of any such condition, warranty or other obligation, including any consequential loss which you may sustain or incur, shall be limited (except as otherwise specifically set forth herein) to:
(a) in relation to goods
(b) the replacement of the goods or the supply of equivalent goods or payment of the cost of replacing the goods or acquiring equivalent goods; or
(c) the repair of the goods or payment of the cost of having the goods repaired; b. in relation to services i. the supplying of the services again; or
(c) The payment of the cost of having the services supplied again as in each case we may elect.
11. RIGHTS AND RESPONSIBILITIES
11.1 Termination. In the event you have commissioned us to complete Works with turn-around times of 30 days or more, or you have commissioned us 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 you, we shall have the right to invoice you the pro rata for Work completed through to 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 your written notification to stop work. In the event of termination, you shall also pay any expenses related to the Work incurred by us and we shall own all rights to the incomplete Work(s).
11.2 Payment Default. You 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.
11.3 Force Majeure. We 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 our control.
11.4 Pricing of Services. We reserve the right to alter our prices, at our discretion, without prior notice and without affecting existing contractual pricing agreements.
12.1 Privacy. (Obtaining personal information). In the event that you have provided your electronic address to us, you by your receipt of these terms and conditions acknowledges that we may use your electronic address for commercial purposes such as the promotion of our services or products; and you hereby consent to and authorise us to send commercial electronic messages to the your electronic address. Under no circumstances will we sell or otherwise disclose your personal information to any third party.
13.1 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 Evolution Design Agency and Client. This Agreement is void where prohibited by law.
13.2 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.