All services provided by Tony Labrum TA Solara Marketing – (referred to as ‘Solara Marketing throughout this Terms and Conditions text) (ABN 31 394 455 028) are subject to the following terms and conditions. Please read them carefully as they, together with your purchase order, quotation or proposal, form the agreement between you and Solara Marketing . These terms and conditions may change from time to time, and the most up-to-date version can be found online at www.solaramarketing.com.au/terms
PROVISION OF SERVICES Solara Marketing
1. QUOTATIONS & PRICING
1.1 Quotations and proposals provided by Solara Marketing are valid for 30 days from date of issue only. Older quotations and proposals are subject to review and change.
1.2 A quotation issued by Solara Marketing will only be valid when the quotation or proposal is accepted in writing either by letter, fax or email in accordance with these terms and conditions.
1.3 Services will be provided as itemized in the quote. Any changes, including changes to agreed content; artwork, scheduling or any other terms must be agreed in writing only by letter, fax or email correspondence.
1.4 Quotations and proposals remain the property of Solara Marketing at all times and it is a condition of their provision that their contents, including any costs, concepts, strategies, solutions or recommendations, may not be disclosed to third parties at any time prior to Solara Marketing receiving written acceptance of the quotation or proposal accompanied by a 50% deposit.
1.5 Solara Marketing will use any resources it deems fit to fulfill a quotation or proposal. This includes, but is not limited to, discretion as to choice of software, materials, and contractors.
1.6 Quotations and proposals will only be accepted strictly by signing the quotation or proposal and returning it by fax or mail to Solara Marketing , an electronic version clearly stating the quote number, the persons name whom is accepting responsibility for signing the quotation, a purchase order number and a copy of the bank receipt if a deposit is required. (Please refer to Payment Terms).
1.7 Any fees, costs and charges quoted for work by Solara Marketing are fees, costs and charges for conceptualization and/or design of concepts only unless otherwise state within the quotation. Fees, costs and charges for amendments to delivered concepts do not form part of the fees, costs or charges as communicated by Solara Marketing in any written quotation or any price guideline. 1.8 The first two rounds of amendments to deliver design concepts will always be carried out by Solara Marketing free of charge, unless otherwise noted. Any further changes will be invoiced at an hourly rate. This excludes errors made by Solara Marketing , which will be corrected free of charge up to and including the final proof stage. Solara Marketing will exercise all care to ensure design work is free from error. Solara Marketing e will correct any and all errors made by Solara Marketing up to and including the proofing and/or testing stages of a design project free of charge. Once the final proof or version is signed off by you, the cost of correcting any errors will be charged to you at the hourly rate of $120 per hour.
1.9 All prices listed in any printed, published or electronic/online price guideline are subject to change without notice.
2. INVOICING
2.1 Subject to clause 3.9, when the Order has been completed, Solara Marketing will issue an invoice to the customer for the amount of the Quotation or, if no Quotation was made, for an amount representing Solara Marketing charges for the work done in filling the Order, and for any of the other charges specified in clause 2.2 2.2 In addition to the amount of the Quotation, or where no Quotation was given, in addition to the amount representing Solara Marketing charge for the work done, Solara Marketing may charge to the customer: (a) fees for any preliminary work performed at the customer’s request; (b) fees for additional work required to be done as a result of the customer changing his, her or its instructions; (c) fees for having to work from poor copy; (d) fees for work which involves tables or foreign language and which was not notified to Solara Marketing before the Quote was prepared; (e) fees for additional work required to be done as a result of author’s corrections, including repagination or reformatting; (f) fees and other charges for work required to be done urgently, including any overtime costs; (g) fees for handling or storing material or equipment supplied by the customer for the purposes of the Order; (h) fees for changing or correcting, in order to ensure that the Goods are properly produced, any plates, film, bromides, artwork or any document including computer files supplied for the purposes of the Order by the customer; (i) freight costs and charges; (j) other charges, fees or disbursements referred to in these Terms and Conditions and not specified in this clause;
3. PAYMENT TERMS
3.1 Final payment is due and payable prior to delivery of the final amended designs and/or artwork and/or print work, websites or any electronic files. Websites will not be published on the Internet until final payment is received (unless prior arrangements have been made).
3.2 In some instances a Deposit or Full Payment may be required before the job can commence, you will be notified at the time of quotation if this is required. Quotations and proposals must be accepted strictly by signing the quotation or proposal and returning it by fax or mail to Solara Marketing , an electronic version clearly stating the quote number, the persons name whom is accepting responsibility for signing the quotation, a purchase order number and the bank deposit receipt number will also be accepted. Acceptance of the quotation or proposal must be accompanied by a 50% deposit unless otherwise agreed in writing. The job will only commence on receipt of the aforementioned, electronic versions can be emailed to, [email protected].
3.3 Payments, including deposits, may be made by cash, cheque, direct bank transfer or credit card. (Mastercard and Visa only, 2% surcharge applies)
3.4 Credit terms will not apply unless agreed in writing prior.
3.5 Completion of an account form is required for open billings design work. By completing and returning the account form, you agree to be bound by these terms and conditions.
3.6 Open billings design work will be billed at an hourly rate and will be invoiced at weekly intervals, unless prior arrangement has been made in writing. Open billings invoices are due and payable immediately.
3.7 Where any amounts due and payable, including amounts due and payable under credit terms or circumstances covered by clause (2) of this section, become overdue, a late payment penalty may be payable at $90.00 per month.
3.8 Where progress payments are stipulated in a quotation or proposal, they will fall due and payable as specified in the quotation or proposal.
3.9 Solara Marketing reserves the right to request progress payments where parts or components of a job or project in progress have been completed and no instructions have been received in relation to the outstanding parts or components of the job or project for more than ten working days since the completion of the completed parts or components. The progress payment will be due and payable immediately.
3.10 Overdue Accounts may result in suspension of your works in progress until such time as all amounts in arrears including any charges are paid in full.
3.11 All fees and charges incurred by Solara Marketing on your behalf will become due and payable where services are discontinued or suspended as a result of your failure to comply with these terms and conditions (see Part 4 herein).
3.12 All fees and charges are payable in full and without any offsets or deductions unless otherwise agreed in writing.
3.13 GST is payable on all services provided by Solara Marketing . If you are GST exempt, you must provide Solara Marketing with a notice of exemption from the ATO.
3.14 Solara Marketing reserves the right to recover monies due on unpaid invoices, plus all associated recovery costs, including legal and administrative costs, by any means it sees fit. You will be liable for all Collection agency and/or law firm costs which would be incurred as if the debt is collected in full, including legal demand costs.
3.15 Overdue accounts will be subject to interest at the rate of 13% p.a., calculated for the period the account is due until the date it is paid.
3.16 Solara Marketing reserves the right to recover intellectual property in cases of non-payment by any means it sees fit.
4. PROGRESS, CANCELLATION AND TERMINATION
4.1 Upon delivery of design concepts by Solara Marketing to you, you have (10) ten working days to review the concepts and communicate in writing to Solara Marketing your preferred concept, and, in addition, any desired changes or corrections in respect of the preferred concept.
4.2 Where you have not communicated your preferred concept and changes and/or corrections within (10) ten working days, Solara Marketing will send you a written reminder by email, letter or fax. If you do not communicate your preferred concept and changes and/or corrections within a further (5) five working days of this reminder, Solara Marketing will send you a final reminder notice in writing by email, letter or fax, to which you have (5) five working days to respond.
4.3 Where you do not advise Solara Marketing of your preferred concept and changes and/or corrections in accordance with clauses (3.1) and (3.2), Solara Marketing reserves the right to terminate the project immediately and issue a final invoice, payable immediately.
4.4 Cancellation of an accepted quotation or proposal by you must be communicated to Solara Marketing both by telephone and in writing (letter, fax or email).
4.5 Once work has commenced, the deposit is not refundable. Where the project is cancelled at your request, any costs accrued by Solara Marketing over and above the deposit will be invoiced to you and will be due and payable immediately.
4.6 Where work has been agreed to and the project is cancelled at your request and where the design work has not yet commenced, a termination fee of 25% of the agreed quotation or proposal or the total of costs accrued by Solara Marketing to date will apply (whichever is greater).
4.7 Projects in progress can be postponed for a maximum of (30) thirty days at your request in writing. All outstanding costs to date will be invoiced to you and be payable immediately.
4.8 Where you postpone a project in progress in accordance with clause (3.1) of this section, work will be restarted and completed at your instruction in accordance with the specifications of the original quotation.
4.9 Notwithstanding clause (4.2) of this section, work resumed after postponement will be subject to cost revision. Work will not restart until revised costing (if any) has been agreed to in writing.
4.10 Where works in progress have been postponed in accordance with clause (4.1) of this section and work has not be restarted within (30) thirty days of such postponement, Solara Marketing reserves the right to cancel the project, and any accrued costs will be invoiced to you and be payable immediately.
4.11 Solara Marketing reserves the right to terminate a project and/or services where (i) there are outstanding invoices, or (ii) there is a material breach of these terms and conditions.
4.12 Solara Marketing will be entitled to cancel any agreement with you where you become insolvent, enter into voluntary arrangements with creditors, enter receivership or cease trading for any reason. This will be done without prejudice to any other rights or remedies available to Solara Marketing . Amounts owing will be invoiced, due and payable immediately.
5. JOB COMMENCEMENT
Your job will not commence until the signature of responsibility, purchase order and deposit/payment (if applicable) has been received and cleared. Please read in conjunction with clause 1.6 & 3.2.
6. SERVICE TERMS – GENERAL CONDITIONS
6.1 You agree to electronically supply all text, documentation, images, artwork or any other necessary material for Solara Marketing to complete agreed work, within (1) one working week of acceptance of the quotation or proposal unless otherwise agreed in writing. Solara Marketing will not be responsible for delays to agreed scheduling and/or failure to meet deadlines where you fail to adhere to this condition. Costs incurred by Solara Marketing arising out of delays caused by breach of this condition will be charged to you.
6.2 You must ensure all artwork and any other material Solara Marketing is asked to use meets all relevant Australian legal requirements, including but not limited to compliance with intellectual property rights legislation and/or statutory or common law personal rights or proprietary rights.
6.3 Compliance with intellectual property rights legislation means you will obtain all necessary permissions, licenses or any other authorization to use copy, artwork, graphics, registered names, trademarks, patents, logos or any other material you provide to Solara Marketing so that their use by Solara Marketing does not constitute an unauthorized dealing within the meaning of the Copyright Act 1968 (as amended).
6.4 Compliance with clause (6.3) of this section will be implied by your supply of any material mentioned in clause (6.3) to Solara Marketing . It will be construed in the form of a guarantee to Solara Marketing that material complies with clause (6.3) of this section.
6.5 Solara Marketing will be indemnified against any claims and/or costs arising from your failure to comply with any part of clause (6.3) of this section.
6.6 Unless otherwise agreed, any required liaison with a printer other than one nominated by Solara Marketing will be charged at a per hour rate.
6.7 Solara Marketing will always supply a final proof to you for review and approval prior to delivery and/or printing and/or publication. You must examine the final proof carefully for errors. When you are satisfied with the final proof, you must sign in the area provided (if hardcopy), or convey explicit approval of electronically supplied proofs in writing (email, fax or mail). Any errors or exceptions must be noted in writing and returned with the proof to Solara Marketing for correction in accordance with these terms and conditions.
6.8 Alterations to previously approved work will be invoiced at an hourly rate.
7. WEB DESIGN CONDITIONS
7.1 “Web design” refers to the design and/or development of any one or combination of the following: (i) HTML or flash websites, (ii) online e-commerce modules, applications or components, (iii) website content management systems, (iv) web or electronic applications, (v) electronic animations.
7.2 Web design quotations and proposals are for design and upload to a host server only unless otherwise agreed in writing. On-site installation or setup, website maintenance and any other ongoing support services are subject to separate quotations and proposals unless otherwise agreed in writing.
Web design maintenance and/or updating (including additions and deletions) will be performed in accordance with a separate purchase order for such services.
7.3 Solara Marketing will not be held responsible for any alterations whatsoever to web designs performed by you or any third party.
7.4 Solara Marketing reserves the right to exclude offensive or illegal material you ask to be included in your web design.
7.5 Notwithstanding clause (5.1) of this section, Solara Marketing will be indemnified by you against any claims and/or costs arising from material incorporated at your request.
7.6 All care will be taken to provide reliable goods to you, but Solara Marketing accepts no responsibility or liability for any losses arising out of the operation of the web design, either by you or your clients. This includes loss of data, profits, interruption to service, and any damage or consequential loss.
7.7 You will be given an opportunity to fully test and review your web design(s) prior to them being uploaded and published on the Internet or implemented in accordance with your purchase order. All errors, including any failures to meet specification, must be brought to Solara Marketing attention for correction at this stage. Once the test version is approved, any further changes will be charged at cost.
7.8 Approval of web design(s) must be provided to Solara Marketing in writing, stating that you have thoroughly reviewed the web design(s) and found the web design(s) to be free from error and completed to specification, and that, as such, you approve the web design(s) for final upload and/or implementation.
8. INTELLECTUAL PROPERTY
8.1 Working files and concept/design development files remain the property of Solara Marketing at all times unless otherwise agreed in the quotation or proposal or in writing.
8.2 Ownership and intellectual property rights in any works created by Solara Marketing remains with Solara Marketing . Ownership and intellectual property rights are free of charge but need to be requested at time of Quotation. Works for the purpose of this clause refers to any literary, artistic or dramatic work as defined in the Copyright Act 1968 (as amended).
8.3 Notwithstanding clause (8.2) of this section, moral rights to works are retained by and remain with Solara Marketing at all times.
8.4 Pursuant to clause (8.3) of this section, Solara Marketing e explicitly retains the right to use, publish, reproduce, display, distribute or create derivative works from any designs, artwork, copy, concepts, or web designs to promote or publicize Solara Marketing and/or foster recognition of Solara Marketing as the author of the material.
9. GENERAL TERMS, INDEMNITY, LIMITATION OF LIABILITY
A. ERRORS
9.A.1 Solara Marketing will exercise all care to ensure design work is free from error. Solara Marketing will correct any and all errors made by Solara Marketing up to and including the proofing and/or testing stages of a design project free of charge. Once the final proof or version is signed off by you, the cost of correcting any errors will be charged to you at the hourly rate.
9.A.2 Solara Marketing will not be held responsible for any errors contained in artwork, copy or any other materials supplied by you. Solara Marketing does not proof any material in the absence of agreement in writing to the contrary. You must ensure supplied material is correct and up-to-date.
9.B.1 Solara Marketing makes no warranties or representations about the fitness or suitability of a proposed design solution. It is your responsibility to ensure that any service or solution proposed by Solara Marketing meets your requirements.
9.B.2 Any express or implied statutory or otherwise terms, conditions, warranties, representations not included in these terms and conditions, including those of the client’s, are excluded.
B. INDEMNITIES AND LIMITATION OF LIABILITY
9.B.3 Solara Marketing and its employees and agents will not be liable for any losses, losses to profit or damage to good will, nor any direct, indirect, incidental, special, consequential or punitive damages incurred directly or indirectly out of services provided by Solara Marketing .
9.B.4 Where any part of these terms and conditions is excluded, modified or voided under any legislation, the legislative provision will be deemed incorporated in these terms and conditions. Where more than one term, condition, warranty or remedy is available to you, Solara Marketing reserves the right to select the means by which any breach of such legislative provisions will be remedied, including, specifically, supplying the agreed service again where permitted.
9.B.5 Notwithstanding clause (2) and (4) of this section, no terms excluded, modified or voided by legislation voids these terms and conditions in their entirety. Terms and conditions not affected by legislation remain in full force and effect.
9.B.6 All property supplied to Solara Marketing to carry out design work is at your own risk. If your material is valuable or irreplaceable, you should ensure materials are insured or, in the case of electronic material, securely backed up. All property will be returned to you at the completion of the project.
9.B.7 Solara Marketing will have no liability to the customer in relation to any loss, damage or expense caused by Solara Marketing failure to complete the Order or to deliver the Goods as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, the inability of Solara Marketing normal suppliers to supply necessary materials or any other matter beyond Solara Marketing control.
9.B.8 If, before the Quote is prepared, the customer does not give Solara Marketing specific instructions in relation to style, type or layout, Solara Marketing may charge an additional amount for any additional work required to be done (including the production of additional proofs) as a result of the customer subsequently altering the style, type or layout used by Solara Marketing .
10. DELIVERY
Solara Marketing shall
(a) Deliver the Goods to the Customer’s address as arranged at the time of Quotation. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Customer at the Seller’s address.
(b) Delivery of the Goods to a carrier, either named by the Customer or failing such naming to a carrier at the discretion of the Seller for the purpose of transmission to the Customer, is deemed to be a delivery of the Goods to the Customer.
(c) The costs of carriage and any insurance which the Customer reasonably directs the Seller to incur shall be reimbursed by the Customer (without any set-off or other withholding whatever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Customer’s agent.
(d) Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
(e) The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
(f) The Seller shall not be liable for any loss or damage whatsoever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
11. COLLECTION
11.1 Notification – Solara Marketing shall notify the customer when the Goods are ready for collection.
11.2 Collection – The customer must collect the goods from Solara Marketing premises upon being notified by Solara Marketing that the Goods are ready for collection.
12. REJECTION
12.1 Rejection – Subject to clause 9 the customer may only reject the
(a) Goods if they do not comply with the customer’s instructions. (b) Design if they do not comply with the customer’s instructions.
12.2 If the customer wishes to reject, the customer must notify Solara Marketing of the rejection:
(a) Delivered – within 7 Days of receipt of delivery (or such other time as is mutually agreed).
(b) Collection – within 7 days of notification that the Goods are ready for collection (or such other time as is mutually agreed).
(c) Electronic – within 7 days of receipting he email
12.3 Risk – The risk in the Goods passes to the customer:
(a) if Solara Marketing delivers the Goods to the customer’s premises – at the time of delivery; (b) otherwise – at the time Solara Marketing notifies the customer that the Goods are ready for collection.
If the customer is entitled to rejection and rejects in accordance with these Terms and Conditions, risk reverts to Solara Marketing at the time the customer notifies Solara Marketing of the rejection.
