Terms and conditions

Tondo Creative Pty Ltd (ABN 44 639 591) terms & conditions of supply of creative/design services.

1.1. Definitions in these Terms & Conditions: ‘Agreement’ means any agreement or contract entered into for the provision of Goods and/or Services by Tondo Creative to the Customer; “Tondo Creative” means Kristen Marie Willis trading as Tondo Creative ABN 44 639 591; “GST” means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended; ‘Terms’ means these Terms & Conditions of Supply of Graphic Design Services; ‘Copyright Licence’ means the licence to use the Copyright Material granted by Tondo Creative to the Customer; ‘Copyright Material’ means any copyright work produced by Tondo Creative in the provision of the Goods or Services; ‘Customer’ means a person, firm or corporation, jointly and severally if there is more than one obtaining the Goods and Services; ‘Goods’ means any Goods provided to the Customer by Tondo Creative, or procured by Tondo Creative for the Customer and includes without limitation printed stationery, business cards, brochures, and any other printed material or artwork; “Intellectual Property” means all intellectual property rights including copyright, trade marks, designs, specifications, confidential information, (whether registrable or not) owned or licensed by Tondo Creative in respect of the Goods and Services; and ‘Services’ means the provision by Tondo Creative to the Customer of any Services including without limitation graphic design, printing, print brokerage, and internet page and site design services, advertising and marketing.

2.1. Unless otherwise agreed by Tondo Creative in writing, the Terms apply exclusively to every contract for the sale of Goods and/or Services by Tondo Creative to the Customer and cannot be varied or supplanted by any other condition, including the Customer’s terms and conditions of purchase (if any).
 
2.2. The descriptions, illustrations and performance specifications of Goods and/or Services in a quotation, catalogues, prices in any price list and other advertising material do not form part of this Agreement.
 
2.3. Any written quotation provided by Tondo Creative to the Customer concerning the proposed supply of Goods and/or Services is:
(a) valid for 30 days; (b) an invitation to treat only; (c) subject to the Customer offering to enter into an Agreement and accepting these Terms.
 
2.4. The Terms may include additional terms in Tondo Creative’s quotation, which are not inconsistent with the Terms.
 
2.5. The Agreement is accepted by Tondo Creative when Tondo Creative confirms its acceptance of an offer from the Customer in writing or electronic means or provides the Customer with the Goods and/or Services.
 
2.6. Tondo Creative in its absolute discretion may refuse to accept any offer.
 
2.7. It is the Customer’s responsibility to provide Tondo Creative with its specific requirements in relation to the Goods and Services.
 
2.8. Tondo Creative may vary or amend these Terms by notice in writing to the Customer at any time. Any variations or amendments will apply to orders made by the Customer after the date of notice.
3.1. Prices quoted, whether in a price list, by written quotation or verbally, for the supply of Goods and Services, exclude GST and any other taxes or duties imposed on or in relation to the Goods and Services. In addition to payment of the price of Goods and Services, the Customer must pay any GST and any other taxes or duties imposed on the Goods and Services.
 
3.2. If the Customer requests any variation to the Agreement, Tondo Creative may increase the price to account for the variation.
 
3.3. Where there is any change in the costs incurred by Tondo Creative in relation to the Goods or Services, Tondo Creative may vary its price for the Goods or Services in order to take account of any such change, by notifying the Customer.
4.1. Unless otherwise agreed in writing: (a) Payment for the Goods and/or Services must be made within 7 days from the date from which Tondo Creative’s invoice is raised. (b) Tondo Creative reserves the right to require payment in full on delivery of the Goods or completion of the Services.
 
4.2. Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
5.1. If the Customer defaults in payment by the due date of any amount payable to Tondo Creative, then all money which would become payable by the Customer to Tondo Creative at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Tondo Creative may, without prejudice to any other remedy available to it: (a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Contract Default Rate published by the Queensland Law Society Incorporated (or any successor body) for the period from the due date until the date of payment in full; (b) charge the Customer for, and the Customer must indemnify the Supplier from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with these conditions or to recover any Goods; (c) cease or suspend for such period as Tondo Creative thinks fit, supply of any further Goods or Services to the Customer; (d) by notice in writing to the Customer, terminate any contract with the Customer so far as unperformed by Tondo Creative; without effect on the accrued rights of Tondo Creative under any contract.
 
5.2. Clauses 5.1(c) and (d) may also be relied upon, at the option of Tondo Creative: (a) where the Customer is an individual and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or (b) where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.

6.1. Until full payment in cleared funds is received by Tondo Creative for all Goods and Services supplied by it to the Customer, as well as all other amounts owing to Tondo Creative by the Customer (a) title and property in all Goods remain vested in Tondo Creativeand do not pass to the Customer; (b) the Customer must hold the Goods as fiduciary bailee and agent for Tondo Creative; (c) the Customer must keep the Goods separate from its Goods and maintain the labelling and packaging of Tondo Creative; (d) the Customer is required to hold the proceeds of any sale of the Goods on trust for Tondo Creative in a separate account however failure to do so will not affect the Customer’s obligation to deal with the proceeds as trustee; (e) Tondo Creative may without notice, enter any premises where it suspects the Goods may be and remove them, notwithstanding that they may have been attached to other Goods not the property of Tondo Creative, and for this purpose the Customer irrevocably licences Tondo Creative to enter such premises and also indemnifies Tondo Creative from and against all costs, claims, demands or actions by any party arising from such action.

7.1. Any period or date for delivery of Goods or provision of Services stated by Tondo Creative is intended as an estimate only and is not a contractual commitment. Tondo Creativewill use its reasonable endeavours to meet any estimated dates for delivery of the Goods or completion of the Services but will in no circumstances whatsoever be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date.

8.1. If, through circumstances beyond the control of Tondo Creative, Tondo Creative is unable to effect delivery or provision of Goods or Services, then Tondo Creative may cancel the Customer’s order (even if it has already been accepted) by notice in writing to the Customer.
 
8.2. No purported cancellation or suspension of an order or any part thereof by the Customer is binding on Tondo Creative after that order has been accepted.
 
8.3. Tondo Creative, in its absolute discretion may review, alter or terminate the Customer’s credit limit or payment terms without notice.
 
8.4. If the Customer cancels the order after acceptance by Tondo Creative, then Tondo Creative will be entitled to damages for breach of contract.
9.1. The Customer acknowledges that it has no proprietary right or interest in the Intellectual Property.
 
9.2. The Customer must not register or record or attempt to register or record anywhere in the world the Intellectual Property or any part or any trade marks or designs derived from or similar to the Intellectual Property or aid or abet anyone else in doing so.
 
9.3. The Customer must not at any time create, sell, manufacture or process any Goods or Services using or taking advantage of the Intellectual Property.
 
9.4. Any Intellectual Property provided to the Customer by Tondo Creative in connection with the Goods and Services remains the exclusive property of Tondo Creative and must be returned to Tondo Creative on demand and must not be copied or communicated to any third party without the express written consent of Tondo Creative.
10.1. Ownership of copyright in the Copyright Material will remain vested in Tondo Creative on creation.
 
10.2. Where by virtue of the Copyright Act 1968, or other Act of any Federal or State Parliament copyright in the Copyright Material would vest in the Customer, the Customer hereby assigns such copyright to Tondo Creative.
 
10.3. The Customer hereby irrevocably acknowledges and agrees that Tondo Creative may use any Copyright Material or Intellectual Property created as part of any Goods or Services in connection with its own portfolio, marketing or promotional material of the Tondo Creative business (in any form including Facebook or any other social media).
11.1. Subject to this Agreement, Tondo Creativehereby grants to the Customer a limited licence to use the Copyright Material upon payment in full of the price for the Goods or Services the subject of the Copyright Material and the Customer is not entitled to use the Copyright Material in any form in the meantime.
 
11.2. The Licence is limited to the use by the Customer of such Goods and Services as have been supplied by Tondo Creative in connection with its business.
 
11.3. The Customer is not authorised to do any act comprised in the copyright of the Copyright Material (including sublicense, adapt, or modify) without the written permission of Tondo Creative.

12.1. The Customer shall be solely responsible for and shall hold Tondo Creative fully indemnified against any loss or damage arising from or in connection with the provision of the Goods or Services, including without limitation any action for infringement of copyright or trademark brought by any third party against Tondo Creative or the Customer in connection with material supplied by the Customer to Tondo Creative in provision of the Goods or Services.

13.1. Except as specifically set out herein, or contained in any warranty statement provided with the Goods or Services, any term, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or Services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.
 
13.2. Replacement of the Goods or resupply of the Services is the absolute limit of Tondo Creative liability howsoever arising under or in connection with the sale, use of, storage or any other dealings with the Goods or Services by the Customer or any third party.
 
13.3. Tondo Creative is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party.
 
13.4. Tondo Creative will not be liable for any loss or damage suffered by the Customer where Tondo Creative has failed to deliver Goods or Services or fails to meet any delivery date or cancels or suspends the supply of Goods or Services, or suspends or cancels the Copyright Licence.
 
13.5. Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of Goods or supply of Services which cannot be excluded, restricted or modified.
14.1. The law of Queensland from time to time governs the Terms and the parties agree to the non-exclusive jurisdiction of the courts of Queensland, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
 
14.2. Failure by Tondo Creative to enforce any of these Terms shall not be construed as a waiver of any of Tondo Creative’s rights.
 
14.3. If any of the Terms are unenforceable it shall be read down so as to be enforceable or, if it cannot be so read down, the term shall be severed from these Terms without affecting the enforceability of the remaining terms.
 
14.4. Tondo Creative may assign its rights under these Terms but the Customer may not assign its rights without the written consent of Tondo Creative.
 
14.5. A notice must be in writing and handed personally or sent by facsimile, email or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on the facsimile machine or computer transmitting the email confirming transmission
15.1. Tondo Creative takes steps to ensure that all personal information obtained in connection with the Customer will be appropriately collected, stored, used, disclosed and transferred in accordance with the Australian Privacy Principles so far as applicable. Such information may be accessed by request to Tondo Creative.
 
15.2. Tondo Creative requires that the Customer comply with the Australian Privacy Principles in connection with any personal information supplied to it by Tondo Creative in connection with this Agreement. The Customer warrants and agrees that it has obtained consent from any of the persons who provide personal information contained in the information or material supplied by it to Tondo Creative and where necessary to give effect to the terms of these Conditions, the Customer consents to disclosure of any personal information given by it to Tondo Creative (including where comprised in the Copyright Material) for any purposes disclosed in or contemplated by this Agreement.

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