Important this page contains CRE8IVE's standard terms and conditions governing the provision of services to you ‘the Client’ as identified on a Project Estimate. Please read this agreement carefully as these terms and conditions, together with the information in each Project Estimate, will form a legally binding agreement between you and CRE8IVE
CRE8IVE Australasia Pty Ltd (ABN 32 100 650 039) of Level 10, 40 Marcus Clarke St, Canberra ACT 2601 (CRE8IVE) and the Client identified in the Project Estimate agree that the following terms and conditions will apply to the Services to be performed by CRE8IVE under this Agreement.
- CRE8IVE will provide the Services to the Client.
- It is understood and agreed that the Services may include advice and recommendations, but all decisions in connection with the implementation of such advice and recommendations will be the responsibility of the Client.
- Scope of Services
- CRE8IVE will make commercially reasonable efforts to adhere to the Client's brand and content direction. If the Client's feedback for a Project departs in a significant manner (as determined by CRE8IVE) from the Client's original scope of Services, CRE8IVE reserves the right to charge additional fees for time and materials for such Client Alterations at the rates specified in the Project Estimate, and if no rates are specified then at CRE8IVE's then current rates.
- This Agreement will commence on the earlier of the date the Client signs and returns a copy of the Project Estimate to CRE8IVE and the date of the commencement of the Services. This Agreement will expire on the completion of the Services unless terminated earlier in accordance with this Agreement.
- Payment of invoices (and GST)
- In consideration of CRE8IVE performing the Services the Client must:
- pay to CRE8IVE the Fees; and
- reimburse CRE8IVE (at CRE8IVE's actual cost) for any Allowance.
- CRE8IVE will issue an invoice (or invoices) in respect of the Services and the Client must pay each invoice within 28 days of the date of each invoice.
- CRE8IVE may issue a deposit invoice or progress payment in respect of the Services and the Client must pay each deposit invoice within 14 days of the date of each invoice. In the case of a deposit invoice the project will not start until the project deposit has been received.
- Without limiting its other rights or remedies, CRE8IVE has the right to suspend or terminate the Services, if payment is not received on time.
- All fees and amounts due under this Agreement are exclusive of all taxes. The Client must pay GST and any other Government taxes or charges on a taxable supply made to it under this Agreement in addition to any consideration (excluding GST) payable for that taxable supply.
- Intellectual Property
- CRE8IVE may contribute Background Material as part of the Services. The Intellectual Property in Background Material remains vested in CRE8IVE. CRE8IVE grants to the Client a non-exclusive licence, to use the Intellectual Property in the Background Material for the sole purpose of using the Project in the ordinary course of the Client's business.
- Subject to clause 5.1 and the Client paying the Fees and any Allowances and Committing to related projects in their entirety, the Intellectual Property rights in the Project will vest in the Client.
- The Client grants to CRE8IVE the right to include, at CRE8IVE's discretion, the Client's name and details of the Project (including a copy of the Project) as part of CRE8IVE's portfolio of work for the purpose of promoting CRE8IVE.
- Client Intellectual Property
- If the Client contributes Client Material to CRE8IVE in connection with the Services, the Client grants to CRE8IVE a royalty-free, non-exclusive and perpetual licence to use, reproduce, disclose, modify and adapt the Client Material for the purpose of providing the Services.
- The Client warrants that the provision of Client Material to CRE8IVE, and that CRE8IVE's permitted use of Client Material (including incorporation of the Client Materials into the Project), will not infringe the Intellectual Property rights of any person, or infringe any other Laws or a person's rights under any Law.
- Trade Marks
- The Client acknowledges and agrees that:
- it is the Client's responsibility to undertake, or have undertaken on its behalf, appropriate trade mark infringement and clearance searches to ensure that the Project and any Trade Mark(s) featured in the Project, and the Client's use of the Project will not infringe another person's rights;
- CRE8IVE provides no assurance or representation whatsoever that the Project and any Trade Mark(s) incorporated within the Project will be capable of registration as a trade mark in Australia under the Trade Marks Act 1995 or in any overseas jurisdiction;
- CRE8IVE provides no warranty, assurance or representation whatsoever that the Project or any Trade Mark(s) incorporated within the Project will not infringe the rights of any existing trade mark (whether registered or unregistered anywhere in the world); and
- use of the Project by the Client is at the Client's sole risk.
- Warranties and Liability
- CRE8IVE will perform the Services with due care and skill. CRE8IVE disclaims all other warranties, either express or implied, including without limitation warranties of merchantability and fitness for a particular purpose.
- CRE8IVE does not guarantee "match-print" or "match-product" colour fidelity and cannot prevent slight colour variations throughout an order. The Client also acknowledges and agrees that there may be unavoidable differences between colours as they appear on a particular computer model (depending upon calibration) and the actual colour in printed form. Therefore CRE8IVE does not guarantee the final printed products will match earlier preview colours.
- To the maximum extent permitted by law, CRE8IVE excludes for itself and its officers, employees, agents and contractors, all liability for all claims, expenses, losses, damages and costs made against or incurred or suffered by the Client directly or indirectly (including without limitation lost costs and profits) arising out of:
- the Client's use of the Project; and
- CRE8IVE's negligence or the negligence of CRE8IVE's officers, employees, agents or contractors.
- If CRE8IVE breaches any express provision of this Agreement or a condition or warranty implied under any law which cannot be lawfully modified or excluded by this Agreement, then CRE8IVE's liability to the Client will, to the extent permitted by law, be limited at CRE8IVE's option to supplying the Services again, or paying for their resupply.
- The Project and all stationary and other materials featuring the Project, as set out in a Project Estimate, will be printed as they appear during the final approval step. It is the Client's sole responsibility and the Client must satisfy itself, that all stationary and other materials are formatted correctly, do not contain spelling or grammatical errors and comply with all relevant laws before advising CRE8IVE of its final acceptance.
- CRE8IVE's liability to the Client for loss or damage of any kind (including loss or damage caused by negligence) is reduced to the extent that the Client caused or contributed to that loss or damage.
- If any of the following things happen, CRE8IVE may give the Client a written notice terminating this Agreement, with immediate effect:
- the Client breaches one of its obligations under this Agreement, and then fails to rectify the breach within 14 days of it receiving a notice from the Client identifying the breach;
- one of the Client's warranties in this Agreement is or becomes untrue;
- the Client becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;
- the Client, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
- the Client, being a natural person, dies; or
- the Client ceases or threatens to cease conducting its business in the normal manner.
- If this Agreement is terminated by CRE8IVE under clause 9.1 then CRE8IVE will stop performing the Services and may, in addition to terminating this Agreement:
- retain any Fees and Allowances paid;
- be regarded as discharged from any further obligations under this Agreement;
- pursue any additional or alternative remedies provided by law;
- the Client must pay CRE8IVE the Fees and any Allowances that are, on the date of termination, due and payable under this Agreement; and
- the Client must indemnify CRE8IVE in relation to its unavoidable and unrecoverable costs directly arising from the termination.
- Either party may terminate this Agreement on notice by giving the other party one month's notice in writing.
- If this Agreement is terminated by the Client under clause 9.3:
- CRE8IVE will stop performing the Services at the date termination has effect;
- the Client must pay CRE8IVE the Fees for the Services performed, and Allowances incurred (or if not incurred are unavoidable), up to the date the termination has effect; and
- the Client must indemnify CRE8IVE in relation to its unavoidable and unrecoverable costs directly arising from the termination.
- Variation: This Agreement may only be varied by written agreement of the parties.
- Governing Law: This Agreement is governed by the laws of, and the parties irrevocably submit to the non-exclusive jurisdiction of, the courts of the A.C.T.
- Entire Agreement: This Agreement sets out the entire agreement between the parties in relation to the subject matter and supersedes any previous correspondence, agreement, arrangement or understanding.
- Client's right to enter into this Agreement: The Client warrants it is authorised to enter into this Agreement and to grant the rights contemplated by this Agreement.
- Severability: If a clause(s) of this Agreement is held to be invalid or otherwise unenforceable then that clause will be deemed to be severed without affecting the enforceability of the remainder of this Agreement.
These are the Standard Terms And Conditions of Supply of CRE8IVE Australasia Pty Ltd for Digital, Website hosting and other services offered from time to time by CRE8IVE Australasia Pty. Limited. ("the Service"). These terms apply to you as a user of the Service ("Client" or "you"). Please read these terms and conditions carefully. It is a condition of your use of the Service that you comply with these terms and conditions.
- Terms And Amendment Procedure
- These are the terms upon which we agree to provide the Service to the Client. The agreement made between us with these terms commences on the date your order for Services was accepted by CRE8IVE Australasia Pty. Limited.
- Please look out for any amendments to these Terms and Conditions that CRE8IVE Australasia Pty. Limited. ("we") might make in the future. Future terms and conditions will be communicated by electronic mail to hosting clients of CRE8IVE Australasia Pty. Ltd.
- We may vary these terms, the amount we charge for any Service, or the terms of the operation of the Service, at any time by general notice via email to all Clients. The changes will become effective upon publication of the email. Where we vary the prices for Services, we will give at least 14 days notice of the change by the same means, and the new prices will apply at the end of that period.
- If you use the Service after that publication, your use will constitute an acceptance of the amended terms.
- These terms constitute the agreement in its entirety and supersede prior agreements.
- We may from time to time run promotions and make special offers of limited time duration ("Promotions"). All Promotions are offered subject to their terms and may be withdrawn or altered at CRE8IVE Australasia Pty. Limited?s discretion. The terms of a promotion will override these terms to the extent of any inconsistency.
- We will assign the Client a method for electronic identification and authentication, such as but not limited to a username and password. Selection of methods shall be entirely at CRE8IVE Australasia Pty. Limited's discretion. The Client agrees to abide by any methods selected by CRE8IVE Australasia Pty. Limited. including but not limited to username and password, certificates. Identification and authentication methods will provide the client access to subscribed CRE8IVE Australasia Pty. Limited. services. CRE8IVE Australasia Pty. Limited. will provide the client with guidelines for acceptable client software (as in client-server software). In some cases this may involve a recommendation for client installed software, an exclusion of a particular type and or version of software, or software provided directly by CRE8IVE Australasia Pty. Limited. Unless the privilege is granted by CRE8IVE Australasia Pty. Limited., individual identification and authentication methods are for individual use only and are not to be shared with others or in a group.
- Scheduled Maintenance - We must perform scheduled maintenance to our server from time to time. We will attempt to perform all scheduled maintenance at times that will affect the least number of Clients. If scheduled maintenance requires the service to be off-line for more than 30 minutes, we will notify Clients via email of the scheduled maintenance at least 24 hours in advance of the maintenance. Subject to law, we are not liable for any loss or disappointment you may suffer as a result of any faults or interruptions in the Service
- Unscheduled maintenance may need to be performed. If unscheduled maintenance requires the service to be off-line for more than 30 minutes, we will notify Clients via email after the maintenance has been completed.
- Archiving of Data - CRE8IVE Australasia Pty. Limited. reserves the right to archive your data. We provide no guarantees for availability of archived data in the case of data loss caused either by us, client or other factors. We reserve the right to destroy archived data. Requests for non-archival may be considered, and exemptions from archival may be charged a fee. Clients will be charged for retrievals (restores) of archived data by court order. We reserve the right to restore data or not, subject to charges, upon client request. (standard fees: $100 per incident per 1 MB examined and/or restored for restore from local backup, $200 per incident per 1 MB examined and/or restored for restore from network backup, $500 per incident per 1 MB examined and/or restored for restore from offline media (tape, CD, external HD, etc.) backup). Clients will be charged for disk space, according to the quarterly scale (no prorating), used by restored data for as long as said remains in local disk storage.
- The Service is provided by CRE8IVE Australasia Pty. Limited. from its server in Australia.
- In contracting with CRE8IVE Australasia Pty. Limited. for the Services, the Client obtains no rights to the hardware and other infrastructure and facilities used by CRE8IVE Australasia Pty. Limited. to deliver the Service.
- In the absence of any additional written agreement, these terms (as varied from time to time) will apply to any further Services you acquire from CRE8IVE Australasia Pty. Limited.
- You must pay in advance for the Service as notified to you by CRE8IVE Australasia Pty. Limited. in accordance with the prices in force for Services from time to time.
- You must pay all Service time charges, minimum charges and other amounts incurred by you or any designated users or incurred as a result of any use of your assigned identification and authentication method(s) whether authorised by you or not/
- Prices are inclusive of any government taxes or charges unless otherwise noted, and exclusive of any registration or delegation charges imposed by domain name authorities.
- In addition you must provide and pay for:
- the installation and use of telephone lines and all other equipment needed to access the Service; and
- all government taxes, duties and levies (if any) imposed on either you or us in respect of the Services or any other service or goods supplied.
- Billing period is on a annual cycle beginning when you register. Acceptable methods for payment at this time are cheque or bank transfer of funds or credit card direct debit.
- Warranties And Liabilities
- We do not warrant that:
- the Services provided under this agreement will be uninterrupted or error free;
- the Services will meet your requirements, other than as expressly set out in this agreement or
- the Services will be free from external intruders (hackers) or other persons having unauthorised access to the services or systems of CRE8IVE Australasia Pty. Limited.
- Except as expressly provided to the contrary in this agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this agreement, are excluded. Where any statute implies any term into this agreement and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. However, our liability for any breach of the term will, if permitted by that statute, be limited, at our option, to the resupply of the services again; or payment of the cost of having the services supplied again.
- Except under clause 4.2, CRE8IVE Australasia Pty. Limited. will not be liable to the Client for:
- any loss or damage in respect of the provision of the Services,
- any costs, claims, loss or damage of any kind resulting from the fraudulent, negligent or otherwise unlawful behaviour of the Client,
- any costs, claims loss or damage arising from any information, data or other material provided to CRE8IVE Australasia Pty. Limited. by or on behalf of the Client.
- You warrant that
- at the time of entering into this agreement you are not relying on any representation made by us which has not been stated expressly in this agreement, or on any descriptions or specifications contained in any other document, including any catalogues or publicity material which we have produced;
- you will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by you onto or downloaded by you from the Server does not contain any computer virus and will not, in any way, corrupt the data or systems of any person;
- you will keep secure any passwords used to upload data to the Server and
- you hold and will continue to hold the copyright in the Client Data or that you are licensed and will continue to be licensed to use the Client Data.
- You accept responsibility for all information and material you issue over any Service, and indemnify us and hold us harmless against any liability in relation thereto. In particular you undertake that you shall not publish or issue any information that is illegal or defamatory. You also acknowledge that we do not vet or approve any information or material available through the Service and that we do not accept any liability. To the full extent permitted by law you access and use such information and material at your own risk.
- You agree to abide by our Acceptable Use Policy and you agree that its terms form part of this agreement between you and CRE8IVE Australasia Pty. Limited.
- You are solely responsible for dealing with persons who access the Client Data, and must not refer complaints or inquiries in relation to such data to us.
- Except as provided in clause 4.2, we are not liable to you or any other person for:
- any cost, loss or liability (including loss of profit or other consequential damage) arising from our supply or failure or delay in supplying the Service;
- the content, context or confidentiality of any communications made using the Service;
- loss or damage caused by third party software applications forming part of the Service.
- You indemnify us against all costs, expenses, loss or liability that we may suffer (directly or indirectly) resulting from:
- your breach of these terms,
- your use or misuse of the Service and
- the use or misuse of the Service by any person using your account,
- publication of defamatory, offensive or otherwise unlawful material on any website forming part of your Service.
- The Client grants to CRE8IVE Australasia Pty. Limited. a license to use and reproduce all Client Data in order to fulfil its obligations under this agreement. In this agreement "Client Data" means all information, data, text, logos, images, audio, movie clips and/or content in any form that forms part of the Client's web sites or emails.
- CRE8IVE Australasia Pty. Limited. retains full ownership and/or exercises all rights over software written or customised by CRE8IVE Australasia Pty. Limited. in fulfilment of obligations under this agreement. CRE8IVE Australasia Pty. Limited. grants to the Client temporary use of CRE8IVE Australasia Pty. Limited. software limited strictly to software necessary for fulfilment of this agreement and at the sole discretion of CRE8IVE Australasia Pty. Limited.
- A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.
- The law in force in the Australian Capital Territory governs this agreement and the transactions contemplated by this agreement.
- You may not resell Services or assign your rights and obligations under this agreement without our prior written consent.
Definitions and Interpretation
In this Agreement:
Allowance means any travel, accommodation or other out-of-pocket expense to be incurred by CRE8IVE associated with the performance of the Services, including, but not limited to, any such allowances as specified in a Project Estimate.
Background Material means any Material owned by, or licensed by a third party to CRE8IVE and used by CRE8IVE for the purpose of providing the Services.
Concepts mean any preliminary ideas, proof of concepts and samples that may be provided by CRE8IVE as part of the Services.
Client Alterations means additional Services that may be required to be provided by CRE8IVE in circumstances contemplated by clause 2.,
Client Material means any Material provided to CRE8IVE by the Client (or at the Client's direction) in connection with the Services.
Services means the services set out in a Project Estimate to be provided by CRE8IVE, from time to time and includes the creation of design concepts, advertising creative and website development.
Project means the final Project created for the Client by CRE8IVE under this Agreement including any new or revised Trade Marks but does not include any Concept revisions created by CRE8IVE as part of the Services which were not accepted or chosen by the Client.
Fees mean the fees set out in the Project Estimate for the Services and includes any additional charges for time and materials for Client Alterations.
GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property means any copyright (including any neighbouring rights), trade marks (whether registered or unregistered), trade secrets, Project, drawings, patents, secret processes, business or domain names, or other similar proprietary rights and also includes any rights to the registration of those rights, whether created, formed or arising before or after the date of this Agreement in Australia or elsewhere.
Laws means any applicable Commonwealth, State, Territory or local government statute, regulation, by-law, ordinance, proclamation or subordinate legislation in force from time to time, and includes the common law and equity and any applicable industry codes of conduct.
Material includes documents, reports, agreements (including draft agreements), data, information, software, tools and methodologies, fonts, computer files, Project, graphics, logos, artwork, know-how, templates or other material of any sort and in any form.
Project Estimate means a quote from CRE8IVE to the Client for the provision of Services in accordance with the terms and conditions of this Agreement.
Trade Mark means a 'sign' as defined under section 6 of the Trade Marks Act 1995.