Terms and Conditions

1. In these Terms “we”, “us” or “our” means Seamer Design Pty Ltd (ABN 75 124 154 445) of L23, Tower 5, 727 Collins Street, Docklands VIC 3338 Australia (and our officers, directors, employees and agents) and “you” means the Client identified in the Quote / Proposal.
2. Unless otherwise indicated, capitalised terms have the meaning ascribed to them in the Quote / Proposal.
3. You are deemed to have agreed and accepted these Terms and Conditions upon acceptance of the Quote / Proposal. The Quote / Proposal is valid for 30 days from issue and is subject to amendment, change or substitution if it is not accepted in that time frame.
4. You have requested us to undertake the Work detailed in the Quote / Proposal and we have agreed to do so on the following Terms and Conditions.

ENTIRE AGREEMENT

1. These Terms and Conditions, together with the Quote / Proposal, constitute a binding agreement between Seamer Design and the Client (the Agreement). If there is any inconsistency between these Terms and Conditions and the Quote / Proposal, then these Terms and Conditions will prevail to the extent of the inconsistency.
2. This Agreement is the whole agreement between the parties concerning the subject matter. It replaces any prior agreement, arrangement or understanding concerning the subject matter.

RIGHTS GRANTED

1. In consideration for the Fee, we grant you the sole and exclusive licence for the full term of copyright including any renewals or extensions thereof subsisting in the Work in the Territory to reproduce, publish and communicate the Work or any part of it to the public in printed or electronic form including but not limited to digital, analogue, optical or magnetic information storage and retrieval systems, devices or platforms whether or not in existence as at the date of this Agreement.
2. We own all intellectual property rights and may refuse the transfer of ownership. If previously negotiated, the transfer of ownership of intellectual property to a client may occur but only upon receipt of full payment.

PAYMENT TERMS

1. We require payment of the Initial Instalment stated in the Quote / Proposal before we commence the Work detailed in the Quote / Proposal.
2. Subsequent invoices are due for payment within 30 days of the invoice date.  Please make payment by way of bank transfer or credit card. Bank and credit card details appear on our invoices.
3. If an invoice remains unpaid for more than one month, or if you fail within two weeks to meet a request for payment, we may decline to undertake any further work for you.  In that case, we shall still charge you for the full amount of work done up to that date.
4. We may charge you interest on amounts which are overdue for more than one month.  Interest is calculated at an annual rate equal to the rate being applied to judgment debts during the period in question.
5. You may not set-off any amounts due to us from amount due to you by us.

DISBURSEMENTS AND OTHER CHARGES

1. Unless otherwise stated on the Quote / Proposal, the following charges are not included in the Fee, and will be separately itemised on our invoices and charged to you at cost or as otherwise costed below:

Changes to the scope of the Quote / ProposalGraphic design, Strategy, copywriting, digital development and digital design, Senior strategist, Creative Director and Marketing Director. Contact us for our latest hourly rates Props, Stock Images, Stock Footage and AudioAll inclusions have been outlined in the Quote / Proposal or scope of works, any additional costs will be charged at cost. Courier Fees $POA

1. We will give you prior written notice of any additional costs and shall not incur such additional costs without your prior approval. Such costs shall be added to your next invoice unless otherwise agreed by the parties.
2. Unless otherwise specified, all amounts referred to in the Quote / Proposal and these Terms and Conditions are in Australian dollars and are payable in Australian dollars and are not subject to any deductions of any kind (including in relation to bank fees, withholding tax etc).
3. Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under this Agreement are exclusive of GST.

CHANGES TO THE SCOPE OF WORK

1. If you wish to vary the nature, scope or quantity of the Work detailed in the Quote / Proposal, you must provide us with written instructions detailing the variations you require to enable us to provide a revised Quote / Proposal.
2. The Timeline set out in the Quote / Proposal is intended to be indicative only and is dependent on the timely receipt of materials, written approvals and other instructions from you.
3. If the Timeline outlined in the Quote / Proposal is delayed by more than 30 days as a result of any delay or failure by you resulting in additional costs to us, including, among other things, in relation to additional management time, briefing new project managers, general resourcing costs and/or the implementation of an annual rate review, we retain the right to:
4. make reasonable adjustments to the payment schedule set out in the Quote / Proposal;
5. invoice you for any work completed up to the date of the delay; and
6. charge you for the additional costs incurred by us in dealing with the delay in accordance with clauses 13 and 14.
7. If for any reason beyond our control, including without limitation, strike, trade dispute, fire, flood, accident, tempest, death, war declared or undeclared, blockade, governmental or quasi-governmental restraint, delays in transport or an act of God, we cannot deliver the Works to you in the timeframe you require or at all, we are not required to deliver the Works to the extent and for the period that we are prevented from doing so and we are not liable to you in respect of any inability on our part to perform our obligations.

WARRANTY AND INDEMNITY

1. You warrant that any materials provided by you for inclusion in the Work are accurate and are cleared for use in the Territory and will not defame, infringe the privacy or other right of any third party and that nothing contained in those materials will infringe the copyright, trademark or similar property right of any third party.
2. You undertake not to employ or seek to employ any member of our staff until at least 24 months after the completion by us of any Work governed by these Terms. If you breach this undertaking, you agree to pay us the equivalent of 33% of the staff member’s first year salary with your company, which the parties agree represents the best estimate of the loss that will be suffered by us in the event of your breach of this clause. The parties acknowledge and agree that payment of this percentage on breach is a genuine pre-estimate of loss.
3. You hereby indemnify us with respect to all costs and expenses and interest incurred by us by reason of your breach of these Terms.
4. At all times, we will exercise reasonable endeavours in respect of the safekeeping of any materials provided by you for inclusion in the Work. Except as expressly specified otherwise in this Agreement, we will not be at any time liable for any loss, destruction and/or damage caused to such materials under contract, negligence or bailment law or otherwise.

WORK UNDERTAKEN BY THIRD PARTIES

1. We will use reasonable efforts to maintain your website in accordance with the Scope of Work detailed in the Quote / Proposal. However, we are not liable for any failure or other issue with any website created, managed or edited by a third party (including, but not limited to, broken site pages; the website being taken offline; plugin faults; server, hosting and/or DNS failures) or for any fault or other issue with a website built by us but subsequently modified by you or your employees or a third party (including, but not limited to, third party website developers, IT companies and hosts) without our express approval or direction.
2. If you notify us of a website fault or we discover such a fault, we will review the fault and we will provide you with a quote for undertaking the necessary recovery or maintenance work on the website for your prior approval before we undertake such work.
3. We will charge you for the time we spend troubleshooting your website to identify faults if the fault is the result of work done or services provided by a third party.

PROMOTION

1. We retain the right to reproduce or communicate or otherwise use the Work, including online, for promotional purposes at our discretion, acting reasonably.  If you have concerns about this, please discuss them with us prior to engagement.

TERMINATION

1. Subject to clause 32 either party may terminate this Agreement by giving written notice of such termination to the other party.
2. In the event that you terminate the Agreement, you will be liable for payment of the Fees and disbursements properly incurred by us up to the date of termination. In that event, we will invoice you, as soon as reasonably practicable, for any costs and disbursements due to us up to the date of termination and you must pay the invoice and other unpaid invoices in accordance with the terms of this Agreement.
3. In the event that we terminate the Agreement, we are not liable to you for any loss or damage whatsoever arising from such termination save that we will refund any payment received for work that has not been undertaken as at the date of termination.

DISPUTE RESOLUTION

1. If there is a dispute between the parties in connection with this Agreement (Dispute), the parties must attempt to resolve the Dispute by the following process:
2. The party claiming that a Dispute has arisen must notify the other party of the Dispute giving details of the Dispute and any information, document(s) or other material reasonably necessary for the other party to understand the basis of the Dispute (Dispute Notice).
3. Within 14 days of receipt of the Dispute Notice, the Managing Directors of both parties must hold good faith discussions in an attempt to resolve the Dispute.
4. If, within a further 7 days, the parties are unable to resolve the Dispute, either of them may refer the Dispute to nonbinding mediation. Any mediation will be held in a location to be agreed by the parties and conducted in accordance with the standard mediation agreement of the Institute of Arbitrators and Mediators Australia (IAMA) or its successor.  If the parties cannot reach agreement as to the identity of the mediator within 10 business days, the mediator will be appointed at the request of either party by the IAMA. The mediator’s costs will be borne equally by the parties. The parties agree that nothing in this clause 32 will oblige either party to mediate a dispute for a period exceeding 2 business days from the date on which the mediation commences.
5. Except for urgent interlocutory relief or a dispute relating to confidential information, a party must not commence or maintain an action or a proceeding in a court, tribunal or otherwise regarding a Dispute unless it has complied with this clause 32.

JURISDICTION

1. This Agreement is governed by the laws of Victoria.  The parties submit to the non-exclusive jurisdiction of the courts of Victoria.

CONFIDENTIALITY

1. Each party acknowledges the confidentiality of the other party’s confidential information and, in particular, you specifically acknowledge that the Quote / Proposal is confidential and must not be shared with third parties without our prior written consent.
2. Neither party will gain a right or interest in the other party’s confidential information, other than for the purposes contemplated by this Agreement. Each party must keep all of the other party’s confidential information confidential, and only use it for the purposes of fulfilling its obligations under these Terms.
3. The obligation in clause 35 will not apply to information which:
4. was in the public domain when it was provided to a party, or later enters the public domain, through no fault of the party; or
5. the party is obliged by law to disclose, provided that it has first advised the other party of this obligation.

SEVERABILITY

1. In the event of any provision or part thereof of this Agreement being held invalid, unenforceable or illegal for any reason, then such provision or part thereof, as the case may, shall be deemed to be deleted from this Agreement and this Agreement shall otherwise remain in full force.

VARIATION

1. This Agreement or any part thereof may be varied, modified, amended or added to only in writing executed by both parties.