Terms of Trade
These Terms of Trading apply to all work done by Creative Resort and are to be read in conjunction with any estimates, quotes, invoices or proposals provided. They override any other terms and conditions and can only be changed by mutual agreement in writing.
1. Acceptance
By engaging our services you agree to be bound by these terms of trading. Engaging our services means accepting estimates, quotes or proposals to the extent that we perform agreed work for you. We cannot commence work until the any estimates we provide have been signed off (through signature or via email confirmation) and returned.
2. Right to refuse project
All estimates are provided to you without any obligation on our part. If, for any reason, we do not believe that we can carry out a project, we can (in writing) refuse the project at any time up to the date upon which you write to accept our estimate and for 7 days after that date. If you have made any payment to us prior to the date upon which we refuse the project, we will refund the payment to you in full less any reasonable administrative costs.
3. Right to re-cost estimates
Estimates are based on all stages of a project being accepted by you exactly as specified in the estimate. Any estimate we provide remains valid for 14 days from the date of the estimate. If (for any reason) you do not accept any of the stages, we reserve the right to re-cost the project and provide a new estimate. If you request changes or additional work (to that specified on the approved estimate), the project may need to be re-costed and a new estimate will be provided. The proposed delivery date will also be re-scheduled to a suitable time agreed by both parties. If the project is cancelled or postponed prior to completion, you will be billed for the services and materials incurred up to that point. You are also responsible for increases in materials and third party services (eg. printers and bureaus) where the increases are beyond our reasonable control. 10% GST is additional to our estimates unless otherwise stated.
4. Our ideas
Any ideas or materials we disclose to you remain our property unless you purchase them. You must not use these ideas or materials without our permission (this includes showing or telling the ideas to another agency or supplier).
5. Intellectual property we create
We own the intellectual property of any work we produce for you, including preliminary proposals, scripts, ideas, roughs and/or artwork created in the course of developing your project. When you have paid for a project in full, you will have an exclusive license to use any work we produce for you for the purposes outlined in the estimate, provided you are not in breach of these Terms of Trading.
You may not modify the work or use it for any purpose other than the purpose for which it is originally created without our prior written permission. If you want to own the intellectual property immediately, you should tell us and we will prepare estimates accordingly.
If you want us to transfer copyright or other intellectual property to you, the costs of a transfer are:
(i) the transfer of the intellectual property itself; and
(ii) associated legal fees.
Sometimes we contract work out to artists (such as freelance writers, photographers and illustrators) for a particular project. Often they may retain the copyright or other intellectual property to their work, and accordingly, only the artists themselves can transfer ownership in these works to you. If you want to buy copyright to such works, inform us of this in advance and we will negotiate for those rights on your behalf. This could incur management costs and/or legal fees.
6. Use of third party intellectual property
We are not liable for infringement or unauthorised use of any intellectual property provided by you for use in the product/services supplied by Creative Resort. You further agree by placing an order with us to indemnify us against all claims, proceedings, demands, costs and liabilities arising in connection with any breach of the warranties contained in this clause. If any dispute or claim is made in respect of any infringement or unauthorised use of intellectual property we may terminate the arrangements with you by notice to you and without any liability by us to you or any other person.
7. Indemnity
You indemnify, and agree to keep Creative Resort, its directors, officers and employees indemnified, against all Loss arising out of the breach of any rights (including Intellectual Property Rights and Moral Rights) of any third party in connection with materials or content that you supply to us, or that are supplied to us on your behalf.
8. Time specifications
All specifications of time submitted during the production process or contained in the estimate are guides only. While we make every effort to follow them and keep everyone concerned up to date., we We accept no responsibility if we are unable to do so for things that are out of our control.
We are not responsible for any problems caused by any insistence on delivery or performance earlier than we have estimated.
9. Delay in supplying raw material or returning signed proofs
We will usually consult with you to set estimated production schedules. To keep to these estimates, we may require you to provide us with material on which to work, (e.g. the text of a brochure) or return signed proofs within a specific time. If these are not received by the date we request that they be provided to us, we are entitled (at our discretion) to add the length of the delay to our production time.
10. Author’s corrections
Any corrections to the original copy, additional material (including photos) and amendments or additions after commencement of work are additional to the estimate. We are not responsible for badly written copy or incorrect information supplied. We are also not responsible for verbal requests for change, despite the extent of it’s simplicity. To ensure changes are done accurately and according to instruction, please put them in writing.
11. Proofs
Proofs are provided as either digital artwork (PDF and JPG files) or printed proofs.
At each proof stage, we will send you proofs and ask you to inspect them. Please do this carefully and, if in order, signify that you have checked and approved them in their entirety by having an authorised officer/manager sign off the proofs in writing, usually by email or by signing printed proofin the space provided. By doing so, you accept all responsibility for errors. Note that, for quality control reasons, we cannot proceed to the next stage unless proofs are approved/signed. Even if you do not apprive/sign the proofs, by advising us, in any way, of your approval, you accept all responsibility for errors. Of course, the checking, inspection and approval of proofs by you means you cannot refuse the finished product produced in accordance with the proofs.
12. Printing
We reserve the right to supervise printing in order to ensure proper quality control. While we take all reasonable care, we are not liable for the printer’s errors. If you do not notify us of defects within 14 days of delivery, you are taken to have accepted the goods as being satisfactory.
We do not take responsibility for any printing that is directly commissioned by you using artwork we have provided.
13. Website ownership
The client will have full ownership of the website once full payment has occurred. Once final payment has been made if our client decides to cease this agreement, you will be given all intellectual property and completed HTML code in relation to your website.
14. Hosting
To cancel the hosting contract we require that you notify us no later than 30 days prior to the end of the current hosting period. If this notice period isn’t met, payment for the next full 12 month hosting period will be required.
15. Domain Names
All domain names purchased through us follow the ICANN Registrants' Benefits and Responsibilities Policy.
16. Licensed images
Copyright of photographic images, unless permitted in writing, is limited to the use of images in the product /services provided by Creative Resort. Additional copywrite liscences can be purchased upon request.
17. Checking material
We will normally have to rely on the accuracy of factual information you provide to us. Accordingly, you will need to check any raw materials (copy, designs, specifications etc) that are provided to us to make sure that, to the best of your knowledge:
(i) it does not infringe any copyright, trade mark or design
(ii) it is not in breach of confidence, misleading or deceptive
(iii) it is not defamatory or unlawful
(iv) all factual statements are true; and
(v) legal requirements for packaging or labeling goods are complied with.
We will process supplied material on the basis that you fully indemnify us against any breach of warranty made by you in these Terms of Trading. This indemnity continues after our agreement ends. It is important that you deliver the information to us in as final and accurate a form as possible.
18. Out-of-pocket expenses
Out-of-pocket expenses (such as couriers, materials etc) will be included within all estimates and quote. We reserve the right to charge a commission on some out-of-pocket expenses (incl. film library images, printouts, illustration, photography etc) to cover administration costs. 10% GST is additional to the cost of these out of pocket expenses, unless indicated otherwise.
19. Third party supplies
We may advise you on or obtain for you goods or services from third parties. When you have approved an order for these goods or services you become responsible for their payment. Any claim you may have in relation to these goods or services (eg. quality) is directly with the supplier and not with us. Although you assume responsibility for the materials once they are delivered to you, you do not own those materials (such as printed materials or files) until you have paid us in full for their production. We have the right to repossess those materials and to prevent you from using them if you do not pay for them on time.
We do not provide any warranties with respect to Third Party Services. You acknowledge that Creative Resort has no control over Third Party Services and shall not be responsible or liable to anyone for such Third Party Services. Creative Resort does not guarantee the availability and uptime of Third Party Services. Creative Resort is not responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any Third Party Services.
20. Samples of finished items
For our records, we reserve the right to retain samples of each finished product designed by us. Where this is not practicable (eg., signage on a motor vehicle) we will arrange for photos or representations of the works, at our discretion. We reserve the right to retain any samples of work we produce for you and show the samples, photos or representation of the work to further promote our services to the public at large (including on our website and in hardcopy form) and to enter such work in exhibitions or for publication in award annuals, magazines and competitions if you have not requested us beforehand, in writing, not to do so.
21. Payment
Bills representing work in progress may be issued monthly or in stages as outlined in our quote, estimate or proposal. You agree that payment of invoices must be made within 7 days of the date of the bill, unless previously negotiated, without any deductions or set-off. Unless all outstanding bills are fully paid, we reserve the right to: (i) not begin, continue or deliver any work; and (ii) retain any goods you supply to us and/or which have been produced for you. Unless agreed otherwise, paying within time is essential to us continuing or completing any further work for you. Projects will be billed in 2 parts: Deposit & Final Payment. A 30 day credit account can be created if a credit application form has been filled out, returned and approved by Creative Resort.
22. Payment in advance
We may require payment in advance before commencing any project or any stage of any project. We reserve the right to require a deposit on some work before it is initiated or completed, especially if the work involves significant out of pocket expenses or work for a new client.
23. Overdue accounts
For overdue accounts, upon our discretion we may charge you interest at 10% per month. You indemnify us for any legal costs (on a full indemnity basis) we incur as a consequence of any default by you of your obligations under these Terms of Trading. If accounts are not paid within our terms, we reserve the right to assign collection to a debt recovery service.
24. Disputing invoices
If you dispute any invoice, you must notify us in writing within 7 days of receiving it.
25. Implied warranties
We give no express warranty in relation to the supply of our services to you and you acknowledge that you have not relied on any representation or warranty made by us or on our behalf. To the extent that such conditions and warranties may lawfully be excluded, all such conditions and warranties are expressly excluded. Further, to the extent permitted by law, if we become liable to you in any manner whatsoever for breach of warranty or for any other reason, then our liability is limited solely to the cost of supplying the services to you again or the payment of the cost of having the services supplied to you by a third party, whichever we elect.
26. Subcontracting
We may use subcontractors to perform any part of the work for you.
27. Law of agreement
The laws of NSW, Australia apply to these Terms of Trading. Any disputes arising out of our relationship are to be dealt with by NSW Courts.
28. General
If you have any questions regarding the Terms of Use, please contact Chelcie Plowright on [email protected]