Terms & Conditions
Last revised 25 June 2019
Unless expressly altered or modified in writing by Wide Open Co. (ABN 17 106 385 878), (“the Company”), the following Terms and Conditions define the obligations and relationship between the Company and each client or prospective client.
These Terms and Conditions will apply to all agreements entered into by the client with the Company for goods and services provided relating, but not limited to the design, printing, copyright, visual media, web sites, brand identity, illustrations, images, art and photography.
1.1. All quotes and prices listed are valid for 30 days unless otherwise agreed with the Company. All prices are provided in Australian dollars.
1.2. The client is required to ensure that all job specification details contained within the quote are accurate as per the client’s specifications.
1.3. The Company shall not be bound by an invoice or quote based on an error or misrepresentation at the fault of the client, where the Company shall be at liberty to correct same by an additional or amended invoice or quote.
1.4. Any and all third party costs will be disclosed before they are incurred and invoiced to the client unless specifically provided for in the quote.
1.5. Unless otherwise specified by the Company, GST is included in all prices quoted and calculated by the Company.
2.1. A client may request a fixed quote or otherwise engage the Company on an hourly basis.
2.2. All invoices must be paid in full within twenty-eight (28) days of the invoice being issued by the Company. Any alternative payment arrangements must be agreed to by the Company prior to acceptance of the quote.
2.3. The Company will provide a two percent (2%) discount on all fees paid within 7 days of the date of the invoice. Returned cheques will incur an additional fee of $50 per returned cheque.
2.4. The Company reserves the right to request a deposit from the client prior to commencing work on the requested goods and services. If a deposit is requested by the Company, an invoice will be generated and delivered to the client in anticipation of payment being made.
2.5. The Company reserves the right to invoice for work completed to date if no instructions are received from the client for 28 days. The Company reserves the right to adjust the estimate or quotation upon recommencement of the project.
2.6. The Company retains the right to charge the client for any additional work, revisions or variations (including requests once the final product has been delivered) that is outside the scope of the initial quote. Final approval of goods and services must be provided to the Company in writing before it is released.
2.7. Cancellations or changes to work already agreed must be provided in writing. The Company may at it sole discretion invoice for all work conducted prior to receiving written notification. The Client will be eligible for a refund of any deposit paid less reasonable costs incurred before the written cancellation or notice of change was received by the Company.
3.1. The Company may charge interest as liquidated damages at a rate equivalent to two percent (2%) in excess of the rate of interest for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic) if payment is not received by the due date.
3.2. In the client fails to pay monies due for goods supplied and services rendered, the Company reserves the right to withhold goods and services, refuse to accept further work without being held responsible for any loss or damages (including consequential loss).
3.3. The client indemnifies the Company against and will pay to the Company any cost for any recovery expenses and collection fees incurred by the Company enlisting third parties to recover monies on any accounts that remain unpaid after the invoice due date.
4.1. All intellectual property produced by or provided to the Company becomes and remains the property of the Company.
4.2. The client will not use and shall not permit the use of any logo, trademarks or intellectual property or other material owned by the Company without the prior written consent of the Company.
4.3. The Company will transfer all rights and interests in the final goods and services supplied to the client upon receipt of full and final payment of any fees due to the Company for the work completed.
4.4. The client consents to the Company placing a small logo or credit to the Company on their website and to using the final goods and services supplied for promotional purposes on the Company website, social media and other promotional purposes at the discretion of the Company from time to time unless consent is expressly withdrawn in writing by the client.
4.5. The Company retains the right to use any preliminary designs or other work completed printed or digital for the purpose of design competitions, future publications on design, educational purposes and marketing materials.
4.6. The Company will release any working source files used in the creation of requested goods and services upon request after full payment is made.
4.7. The Company will assume no liability for and the client will indemnify the Company for the protection of the client’s intellectual property.
5.1. Any times indicated for delivery of goods and services are estimates only and the Company shall not be liable for an unforeseeable failure to deliver by a third party or for a reasonable delay in delivery. The client shall not be relieved of any obligation to accept or pay for goods or services provided by the Company by reason of any delay in delivery or dispatch.
5.2. By the client supplying written approval of the final artwork, the Company is indemnified from any delay, errors, damage, spelling mistakes, incorrect grammar, design issues, unwarranted variations, colour reproduction, image quality, insufficient quantities or other issues that arise in the provision or publication of the requested goods and services by the Company.
5.3. The Company will not be liable for any special, indirect, exemplary or consequential damages or damages resulting in, any loss of profit, loss of goodwill, loss of business opportunity, loss of revenue or any other damage, costs, expenses or other claims even if such claims or damages arising as a result of the negligence of the Company or under any other tortious action in connection with the supply of the goods or services rendered, the use of third party contractors (to print, publish or host online the finished good or service) or as a result of the client’s use or application of the goods or services provided by the Company.
5.4. The Company shall be released from its contractual obligations and the client shall make immediate payment for work conducted prior to any of the following: war, natural disasters, strikes, lockouts, industrial disputes or unrest, government restrictions or transport delays, fire, power outages, failure attributable to hosting suppliers, breakdown of plant, theft, vandalism, riots, civil commotions, accidents of any kind or act of terrorism that affect the Company’s ability to complete the work.
5.5. The Company reserves the right to cease work at any time if the client fails to comply with these Terms and Conditions.
6.1. The Company shall not provide any warranties except for those provided in these Terms and Conditions or otherwise required by the relevant law. All other warranties, including any implied warranties for fitness for use or merchantability or any other duties required under common law are hereby excluded.
6.2. The client warrants that all material provided to the Company for the provision of goods and services is the sole and exclusive property of the Client or that the client is otherwise authorised to use that material for the provision of the requested good or service, and that the use of that material does not infringe any relevant copyright law or statute.
7.1. The Company reserves the right to provide a third party contractor with personal information from time to time as may be required for the limited purpose of providing goods and services to the client or to recover outstanding monies owed by the client to the Company.
7.2. In the event that such disclosure is required for the provision of goods and services, the Company will discuss with the client the reasons why your information needs to be disclosed, how it will be used and who it will be disclosed to before the information is given to the third party.
8.1. Both parties acknowledge that during the provision of goods and services, the parties, their agents and employees may gain access to confidential information that shall be held in strict confidence and not be disclosed to a third party except as may be required under these Terms and Conditions or as required by a relevant law, court or government authority.
8.2. Both parties acknowledge that after the provision of goods and services, the Company may prepare marketing materials that include references to the client's company and representatives, details of the services provided, examples of the goods provided and all or part of any testimonial supplied by the client. Should the goods and services themselves be of a confidential nature, the onus is on the client to advise the Company so that we can exclude such materials from our marketing.
9.1. The parties shall endeavour to settle any dispute arising out of or relating to these Terms and Conditions, including with regard to its existence, validity or termination, by mediation before having recourse to arbitration or litigation.
9.2. If a dispute arises in connection with these Terms and Conditions, the aggrieved party shall provide to the other party a notice setting out details of the grievance (‘Notice of Dispute’). If the Dispute is not resolved within fourteen (14) days of the Notice of Dispute being served, the dispute shall be referred to arbitration.
9.3. Any mediation or arbitration shall be held in Bacchus Marsh with the mediator or arbitrator to be chosen jointly by the parties or failing agreement within seven (7) days by the President of the Law Institute of Victoria or by the President’s delegate.
9.4. The costs of any mediation or arbitration shall be borne equally by the parties. If the dispute does not settle at mediation or arbitration or within 7 days thereafter the parties shall have the right to issue legal proceedings. The Company may issue proceedings without first mediating or arbitrating where the dispute exclusively concerns the recovery of fees owning under these Terms and Conditions.
10.1. The parties agree that these terms will be governed by and construed in accordance with the laws of Victoria where the parties shall be entitled to bring action in the Courts of Victoria and the client accepts the jurisdiction of such Courts.