Terms of Trade

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 any estimate we provide has been signed off (through signature or via email confirmation) and returned.

2. Right to Refuse a Project

All estimates are provided to you without any obligation on our part. If, for any reason, we do not believe we can carry out a project, we may (in writing) decline the project at any time up to the date on which you accept our estimate, and for 7 days after that date. If you have made any payment to us prior to the date on which we decline the project, we will refund that payment in full, less any reasonable administrative costs already incurred.

3. Right to Re-cost Estimates

Estimates are based on all stages of a project being accepted by you exactly as specified. Any estimate we provide remains valid for 14 days from its date. If you do not accept any stage, we reserve the right to re-cost the project and provide a new estimate. If you request changes or additional work beyond that specified in the approved estimate, the project may need to be re-costed, a new estimate provided, and the delivery date rescheduled to a time agreed by both parties. If the project is cancelled or postponed prior to completion, you will be billed for services and materials incurred up to that point. You are responsible for increases in materials and third-party service costs (e.g. printers and bureaus) that are beyond our reasonable control. GST (currently 10%) is additional to our estimates unless otherwise stated.

4. Our Ideas

Any ideas or materials we disclose to you in the course of pitching or scoping a project remain our property unless and until you purchase them. You must not use these ideas or materials — including by showing or describing them to another agency or supplier — without our permission.

5. Intellectual Property We Create

Subject to Clause 13 (Website Ownership), we own the intellectual property in any work we produce for you, including preliminary proposals, scripts, ideas, roughs and artwork created in developing your project. Once you have paid in full for a project, you receive a licence to use the finished work for the purpose set out in the estimate, provided you are not in breach of these Terms of Trading.

You may not modify the work, or use it for a purpose other than the one for which it was created, without our prior written permission. If you want to own the intellectual property outright, tell us before work begins and we will prepare an estimate accordingly.

If you want us to transfer copyright or other intellectual property to you after the fact, the costs of doing so are: (i) the value of the intellectual property itself; and (ii) any associated legal fees.

We sometimes contract work out to freelance artists such as writers, photographers and illustrators for a particular project. They may retain copyright in their own work, in which case only they can transfer ownership to you. If you want to buy copyright in such works, tell us in advance and we will negotiate those rights on your behalf; this may incur management and/or legal costs.

6. Use of Third-Party Intellectual Property

To the extent permitted by law, we are not liable for infringement or unauthorised use of any intellectual property you provide for use in the products or services we supply. By placing an order with us, you agree to indemnify us, to the extent permitted by law, against claims, proceedings, demands, costs and liabilities arising from any breach of the warranties in this clause. If a dispute or claim is made regarding infringement or unauthorised use of intellectual property, we may terminate our arrangement with you on notice, without liability to you or any other person.

7. Indemnity

To the extent permitted by law, you indemnify, and agree to keep indemnified, Creative Resort and its directors, officers and employees against loss arising from a breach of any third party's rights (including intellectual property rights and moral rights) in connection with material or content you supply to us, or that is supplied to us on your behalf.

8. Time Specifications

All time specifications given during production, or contained in an estimate, are guides only. While we make every effort to follow them and keep you up to date, we accept no responsibility for delays caused by matters outside our control. We are not responsible for 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 material for us to work with (e.g. brochure copy) or to return signed proofs by a specific date. If these are not received by the requested date, we may, at our discretion, add the length of the delay to our production time.

10. Client Corrections and Amendments

Corrections to original copy, additional material (including photos), and amendments or additions requested after work has commenced are additional to the estimate. We are not responsible for badly written copy or incorrect information supplied to us, or for verbal change requests, however simple. To ensure changes are made accurately, please confirm them in writing.

11. Proofs

Proofs are provided as digital artwork (PDF or JPG) or printed proofs. At each proof stage, we will send you proofs for inspection. Please check them carefully; if they are in order, an authorised officer or manager must confirm approval in writing (for example by email, or by signing the printed proof in the space provided). By approving proofs, you accept responsibility for any errors they contain. For quality-control reasons, we cannot proceed to the next stage until proofs have been approved in writing. Once you have checked, inspected and approved proofs, you cannot refuse the finished product where it has been produced in accordance with those approved proofs.

12. Printing

We reserve the right to supervise printing to ensure proper quality control. While we take all reasonable care, we are not liable for a 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 satisfactory. We do not take responsibility for printing that you commission directly using artwork we have provided.

13. Website Ownership

On payment in full, ownership of the completed website — including the final HTML/code deliverable and associated intellectual property created specifically for that website — transfers to you. This clause takes priority over Clause 5 in relation to the finished website. Preliminary drafts, unused concepts and underlying tools or frameworks we use to build websites generally (as distinct from your specific site) remain our property.

14. Hosting

To cancel a hosting arrangement, you must notify us no later than 30 days before the end of the current hosting period. We will send you a reminder at least 14 days before each renewal date. If you do not cancel within the required notice period, payment for the next full 12-month hosting period will be required.

15. Domain Names

All domain names purchased through us are subject to the ICANN Registrants' Benefits and Responsibilities Policy.

16. Licensed Images

Unless otherwise agreed in writing, copyright in photographic images is licensed only for use in the product or service we supply to you. Additional copyright licences can be purchased on request.

17. Checking Material

We rely on the accuracy of factual information you provide. You must check any raw material (copy, designs, specifications etc.) supplied to us to ensure 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 labelling goods are complied with.

To the extent permitted by law, we process supplied material on the basis that you indemnify us against any breach of the warranties in this clause. This indemnity continues after our agreement ends. Please provide information to us in as final and accurate a form as possible.

18. Out-of-Pocket Expenses

Out-of-pocket expenses (such as couriers and materials) are included within estimates and quotes. We reserve the right to charge a commission on some out-of-pocket expenses (including stock imagery, printouts, illustration and photography) to cover administration costs. GST is additional to the cost of these expenses, unless indicated otherwise.

19. Third-Party Supplies

We may advise on, or obtain for you, goods or services from third parties. Once you approve an order for these, you become responsible for payment. Any claim relating to those goods or services (e.g. quality) is with the supplier directly, not with us. You assume responsibility for materials once delivered to you, but you do not own them (such as printed materials or files) until you have paid for their production in full. If payment is overdue, we will give you written notice before exercising any right to repossess or restrict use of those materials.

We do not warrant any third-party services. You acknowledge we have no control over third-party services and are not responsible for their availability, uptime, discontinuation or suspension.

20. Samples and Portfolio Use

We may retain samples of each finished product we design. Where retaining a physical sample isn't practical (e.g. vehicle signage), we may photograph or otherwise represent the work. We may show samples, photos or representations of your work to promote our services — including on our website, in print, and in award or competition entries — unless you ask us in writing beforehand not to do so. Where a project includes identifiable personal information or third-party personal data, we will only use it for promotional purposes with your separate consent, consistent with our Privacy Policy.

21. Payment

Bills for work in progress may be issued monthly or in stages as set out in our quote, estimate or proposal. Invoices are payable within 7 days of the invoice date, unless otherwise agreed, without deduction or set-off. If payment is overdue, we will give you 7 days' written notice before suspending or withholding further work, or retaining goods supplied to or produced for you. Paying on time is essential to us continuing or completing your project. Projects are generally billed in two parts — deposit and final payment. A 30-day credit account is available where a credit application has been submitted, returned and approved by us.

22. Payment in Advance

We may require payment in advance before starting a project or a stage of a project, and may require a deposit, particularly where a project involves significant out-of-pocket expenses or is for a new client.

23. Overdue Accounts

For overdue accounts, we may charge simple interest (non-compounding) at 15% per annum, calculated daily on the outstanding balance from the due date until payment is received in full. You indemnify us, to the extent permitted by law, for reasonable legal costs we incur as a result of your default under these Terms. If your account remains unpaid within our terms, we may refer it to a debt recovery service.

24. Disputing Invoices

If you dispute an invoice, you must notify us in writing within 7 days of receiving it.

25. Warranties and Liability

Nothing in these Terms excludes, restricts or modifies any guarantee, warranty, term or condition implied or imposed by the Australian Consumer Law, or any other applicable law, that cannot lawfully be excluded, restricted or modified.

Subject to the above, we give no other express warranty in relation to our services, and you acknowledge you have not relied on any representation or warranty made by us other than as set out in these Terms. To the extent permitted by law, all other conditions and warranties are excluded. Where we are liable to you for a breach of a non-excludable guarantee in relation to services that are not of a kind ordinarily acquired for personal, domestic or household use, our liability is limited, at our election, to resupplying the services or paying the cost of having the services supplied again.

26. Subcontracting

We may use subcontractors to perform any part of the work for you.

27. Governing Law

These Terms of Trading are governed by the laws of New South Wales, Australia. Any disputes arising from our relationship are to be dealt with by the courts of New South Wales.

28. General

If you have any questions about these Terms, please contact Chelcie Plowright at [email].

29. Severability

If any provision of these Terms is held to be invalid, unlawful or unenforceable, that provision will be read down to the minimum extent necessary or, if it cannot be read down, severed, without affecting the validity or enforceability of the remaining provisions.

30. Entire Agreement

These Terms of Trading, together with the relevant estimate, quote, invoice or proposal, constitute the entire agreement between the parties in relation to their subject matter and supersede all prior discussions, representations or agreements, whether written or oral.