Emocean Studios Pty Ltd T/A Emocean Studios - Copyright - 2006
1.1 All Goods and/or Services of Emocean Studios Pty Ltd T/A Emocean Studios, whether gratuitous or not, are supplied subject to these Conditions and:
2.1 "Emocean" shall mean Emocean Studios Pty Ltd T/A Emocean Studios and its successors and assigns.
2.2 "Client" shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by Emocean to the Client.
2.3 "Guarantor" means that person (or persons), or entity who agrees to be liable for the debts of the Client on a principal debtor basis.
2.4 "Materials" shall mean all data, graphics, pictures, trade marks, Software and other materials to be incorporated in the Client's Website (including, but not limited to), user data created by the operation of the Client's Website.
2.5 "Goods" shall mean Goods supplied by Emocean to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Emocean to the Client.
2.6 "Services" shall mean all services supplied by Emocean to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
2.7 "Software" shall mean the programs and other operating information (including documentation) used by a computer.
2.8 "Price" shall mean the cost of the Goods as agreed between Emocean and the Client subject to clause 4 of this contract.
3.1 Any instructions received by Emocean from the Client for the supply of Goods and/or the Client's acceptance of Goods supplied by Emocean shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Emocean.
3.4 The Client undertakes to give Emocean at least fourteen (14) days notice of any change in the Client's name, address and/or any other change in the Client's details.
4.1 At Emocean's sole discretion the Price shall be either:
4.2 Emocean reserves the right to change the Price in the event of a variation to Emocean's quotation.
4.3 At Emocean's sole discretion a deposit may be required.
4.4 All estimates/quotations submitted by Emocean include two rounds of design amendments unless otherwise stated on the estimate/quotation, amends made outside of these two rounds will incur additional charges. Any additional amendments will be charged at an hourly rate.
4.5 Emocean may submit detailed progress payment claims in accordance with Emocean's specified payment schedule. Such payment claims may include the reasonable value of authorised variations and the value of any materials delivered to the site but not yet installed.
4.6 At Emocean's sole discretion:
4.7 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due fourteen (14) days following the date of the invoice.
4.8 If no significant action has been taken by the client to complete a project in a reasonable time period Emocean reserves the right at it's own discretion to (a) cancel the project, (b) place the project on hold or (c) complete the project. Should any of these above actions be taken, Emocean will notify the client and invoice the client for all tracked hours to date which appear on the project.
4.9 Payment will be made by credit card, or by cheque, or by cash, or by direct credit, or by any other method as agreed to between the Client and Emocean Studios.
4.10 Credit cards fees apply for all credit card payments. 4.11 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4.12 In the event the Client requests a Service to be completed in less than the specified time frames mentioned on the estimate supplied, Emocean reserves the right to charge an urgent project fee which shall be twenty five percent (25%) on top of the standard hourly rate.
5.1 At Emocean's sole discretion delivery of the Goods shall take place when:
5.2 At Emocean's sole discretion the costs of delivery are not included in the Price unless otherwise stated on the document.
5.3 The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Emocean shall be entitled to charge a reasonable fee for redelivery.
5.4 Emocean may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
5.5 The failure of Emocean to deliver shall not entitle either party to treat this contract as repudiated.
5.6 Emocean shall not be liable for any loss or damage whatever due to failure by Emocean to deliver the Goods (or any of them) promptly or at all.
6.1 If Emocean retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, Emocean is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Emocean is sufficient evidence of Emocean's rights to receive the insurance proceeds without the need for any person dealing with Emocean to make further enquiries.
6.3 Where the Client expressly requests Emocean to leave Goods outside Emocean's premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client's sole risk and it shall be the Client's responsibility to ensure the Goods are insured adequately or at all.
7.1 Emocean and Client agree that ownership of the Goods shall not pass until:
7.2 Receipt by Emocean of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Emocean's ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:
8.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Emocean of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Emocean an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Emocean has agreed in writing that the Client is entitled to reject, Emocean's liability is limited to either (at Emocean's discretion) replacing the Goods or repairing the Goods.
8.2 Goods will not be accepted for return other than in accordance with 8.1 above.
9.1 To the extent permitted by statute, no warranty is given by Emocean as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. Emocean shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
9.2 Once accepted by the Client, Emocean's written quotation shall be deemed to interpret correctly the Client's instructions, whether written or verbal. Where verbal instructions only are received from the Client, Emocean shall not be responsible for errors or omissions due to oversight or misinterpretation of those instructions.
9.3 Emocean shall be under no liability whatsoever to the Client for any variation (beyond the reasonable control of Emocean) in colours between the approved prototype and the finished Goods.
10.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
11.1 Drawings, sketches, painting, photographs, designs, typesetting furnished by Emocean, dummies, models, drafts or the like devices made or procured and manipulated by Emocean and negatives, positives, blocks, engravings, stencils, dies, lanyards, USB's, plates or cylinders made from Emocean's original design, or from a design furnished by the Client, remain the exclusive property of Emocean unless otherwise agreed upon in writing.
11.2 As the owner of the Intellectual Property, the Client acknowledges that Emocean has the exclusive right to:
11.2 Native artwork files remain the intellectual property of Emocean. Ownership and copyright of native files created and owned by Emocean may be transferred to the Client based on a licensing fee assessed on a case-by-case basis.
11.3 Sketches, dummies, mock-ups, concepts and all other types of drafts submitted by Emocean on a speculative basis shall remain the property of Emocean. They shall not be used for any purpose other than that nominated by Emocean and no ideas obtained there from may be used without the consent of Emocean. Emocean shall be entitled to compensation from the Client for any unauthorised use of such drafts.
11.4 Where Emocean has designed or drawn Goods for the Client then the Client undertakes to acknowledge Emoceans design or drawings in the event that images of the Goods are utilised in advertising or marketing material by the Client.
11.5 The Client hereby authorises Emocean to utilise images of the Goods designed or drawn by Emocean in advertising, marketing, or competition material by Emocean.
12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment
at a rate of five percent (5%) per calendar month and such interest shall compound monthly at such a rate after as
well as before any judgement unless otherwise expressly agreed in writing by Emocean.
12.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify Emocean from and against all costs and disbursements incurred by Emocean in pursuing the debt including legal costs on a solicitor and own Client basis and Emocean's collection agency costs.
12.3 Without prejudice to any other remedies Emocean may have, if at any time the Client is in breach of any obligation (including those relating to payment), Emocean may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Emocean will not be liable to the Client for any loss or damage the Client suffers because Emocean has exercised its rights under this clause.
12.4 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00 +GST) shall be levied for administration fees which sum shall become immediately due and payable.
12.5 Without prejudice to Emocean's other remedies at law Emocean shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Emocean shall, whether or not due for payment, become immediately payable in the event that:
13.1 Despite anything to the contrary contained herein or any other rights which Emocean may have howsoever:
14.1 Emocean may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice Emocean shall repay to the Client any sums paid in respect of the Price. Emocean shall not be liable for any loss or damage whatever arising from such cancellation.
14.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Emocean (including, but not limited to, any loss of profits) up to the time of cancellation.
14.3 Cancellation of orders for Goods and or Services made to the Client's specifications or non-stocklist items/services will definitely not be accepted, once production or commencement of work has commenced.
14.2 Any cancellation of an accepted quote, regardless of project status, will incur an administration fee of 1 billable hour + GST in addition to any billable hours completed on the project by Emocean.
15.1 The Client and/or the Guarantor/s (herein referred to as the Client) agree for Emocean to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by Emocean.
15.2 The Client agrees that Emocean may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
15.3 The Client consents to Emocean being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Client agrees that personal credit information provided may be used and retained by Emocean for the following purposes (and for other purposes as shall be agreed between the Client and Emocean or required by law from time to time):
15.5 Emocean may give information about the Client to a credit reporting agency for the following purposes:
15.6 The information given to the credit reporting agency may include:
16.1 Where the Client has left any item with Emocean for repair, modification, exchange or for Emocean to perform any other Service in relation to the item and Emocean has not received or been tendered the whole of the Price, or the payment has been dishonoured, Emocean shall have:
16.2 The lien of Emocean shall continue despite the commencement of proceedings, or judgement for the Price having been obtained.
17.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
17.3 Emocean shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Emocean of these terms and conditions.
17.4 In the event of any breach of this contract by Emocean the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
17.5 The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by Emocean.
17.6 Emocean may license or sub-contract all or any part of its rights and obligations without the Client's consent.
17.7 Emocean reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Emocean notifies the Client of such change.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure by Emocean to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Emocean's right to subsequently enforce that provision.
18.1 When quotations are based on specifications, roughs, layouts, samples or dummies or printed, typewritten or other good copy, any extra work or cost caused by any variation by the Client of his original instructions or by the manuscript copy being, in Emoceans opinion, poorly prepared or by the Client's requirements being different from those originally submitted or described may be charged to the Client and shown as extras on the invoice.
18.2 All work carried out whether experimentally or otherwise at the Client's request will be charged to the Client.
18.3 Any tabulated work and/or foreign language included in the job but not contained in the manuscript originally submitted for the purpose of estimating may be charged to the Client and shown as extras on the invoice.
18.4 Unless otherwise agreed, the Client shall bear the cost of fonts, or colour proofs, or artwork, specially bought at the Clients request for the job.
18.5 Where the performance of any contract with the Client requires Emocean to obtain Goods or Services from a third party, the contract between Emocean and the Client shall incorporate and shall be subject to the conditions of supply of such Goods and Services to Emocean, and the Client shall be liable for the cost in full including Emocean's margin of such Goods or Services.
18.6 Emocean is under no obligation to provide samples of Goods ordered other than by virtual (computerised) sample. Whilst every effort will be taken by Emocean to match virtual colours with physical colours, Emocean will take no responsibility for any variation between virtual sale samples and either the virtual sale sample displayed on the Client's computer and/or the final product. Should a physical sample be required this will be provided on request by the Client and will be charged for as an extra including return freight, the charge will be contra against final invoice.
18.7 Emocean shall not be held liable for inks wearing off through general wear and tear.
19.1 Whilst every care is taken by Emocean to carry out the instructions of the Client, it is the Clients responsibility to undertake a final proof reading of the Goods. Emocean shall be under no liability whatever for any errors not corrected by the Client in the final proof reading. Should the Clients alterations require additional proofs this shall be invoiced as an extra.
19.2 When style, type or layout is left to Emoceans judgement, then the Client makes further alterations to the copy this will be invoiced as an extra.
19.3 While every effort will be taken by Emocean to match PMS colours, Emocean will take no responsibility for any variation due to substrates, half tones and/or detailed graphics between sale samples (including but not limited to virtual or physical samples) and the final product.
20.1 Where the Client supplies materials, adequate quantities shall be supplied to cover spoilage. Sheets and other materials shall not be counted or checked when received unless requested by the Client in writing. An additional charge may be made by Emocean in respect of any such counting or checking requested by the Client.
20.2 In the case of property and materials left with Emocean without specific instructions, Emocean shall be free to dispose of them at the end of twelve months after his receiving them and to accept and retain the proceeds, if any, to cover his own costs in holding and handling them.
20.3 Where materials or equipment are supplied by the Client Emocean accepts no responsibility for imperfect work caused by defects in or unsuitability of such materials or equipment.
20.4 Any change or correction to any film, bromides, artwork and/or any printing surface supplied by the Client deemed necessary by Emocean to ensure correctly finished work shall be invoiced as an extra.
21.1 'Prohibited Content' means any content on a Website that:
21.2 'Website' means a location which is accessible on the Internet through the World Wide Web and which provides multimedia content via a graphical User Interface.
22.1 Notwithstanding anything herein, the Intellectual Property Rights in Emocean's Materials and Emocean's Routines do not vest in the Client and there is no assignment of the Intellectual Property Rights in Emocean's Materials or Emocean's Routines to the Client. Emocean hereby grants to the Client an irrevocable, non-exclusive and nontransferable licence to use and reproduce Emocean's Materials and Emocean's Routines for the purposes of this agreement only.
22.2 Where Emocean has provided Software, Emocean retains ownership of the Software, but grants a licence to the Client for use of the Software. The Client will use any Software supplied by Emocean strictly in terms of the licence under which it is supplied and shall not modify, change or copy any such Software. The Client will use any third-party Software supplied by Emocean, and identified as such, strictly in terms of the licence under which it is supplied.
22.3 Where Emocean has provided photographic (digital or otherwise) images for the Client, at Emoceans sole discretion any such images may be subject to ongoing licence payments for use of such images. The period of any such licence is determined by Emocean from time to time.
23.1 Upon approval of the Specifications and Quotation in accordance with this agreement, Emocean will:
23.2 Emocean reserves the right to refuse to construct a website that Emocean may judge as unfit due to Prohibited
Content or otherwise, including without limitation websites containing adult oriented material such as pornography,
sites which promote hatred towards persons belonging to any ethnic group, religion or sexual orientation and sites
which infringe copyright or are contrary to Australian laws.
23.3 Emocean shall make every effort to ensure the website pages are displayed correctly on most popular browsers currently available, however Emocean shall not accept responsibility for pages which do not display properly on versions of browsers released after the project has been completed or past the estimated completion date on postponed projects. Nor shall Emocean accept responsibility for pages displaying accurately on outdated or discontinued browser versions.
23.4 Emocean will submit all projects to Google and Yahoo however can not guarantee that the Client's website will rank highly within these search engines.
24.1 The Clients will, in addition to any other obligations expressed in this agreement, have the following responsibilities:
24.2 The Clients will ensure that Emocean is given such information and assistance as Emocean reasonably requires to enable it to construct and maintain the Website.
24.3. It is the Client's responsibility
24.4 Emocean will not be responsible for, and accepts no liability for, any deficiency or alleged deficiency in the Website which is attributable to:
24.5 The Client shall review the website on the test server and shall notify Emocean when they approve the test website and agree that the website can be made publicly available through their chosen/supplied domain. Upon approval to go live with the website, the Client is agreeing that the design and development of the site has satisfied all their requirements according to the initial quotation.
25.1 Emocean will, at its sole cost and expense:
26.1 Emocean will not:
27.1 The Client must provide a minimum of 5 days notice, before the end of the billing cycle, in order to cancel hosting
services. Any cancellations made later than this date will be invoiced in full for the next due billing cycle.
27.2 No partial refunds will be provided for hosting services cancelled during the current agreements time period.
28.1 The process of transferring website files to a new or different hosting server will be charged at an estimated time frame based on the size of the website and how many files are required to be transferred.
28.2 The minimum charge for transferring a website to a new or different website hosting company is 3 full hour blocks charged at the current development rate. Please contact your main Emocean representative for more details.
28.3 A quote will be provided to the client with the estimated timing and costs to transfer the website and all of it's file to the new server.
28.4 The transfer of a website will not commence until the supplied quote has been accepted by the client.
28.5 The transfer of a website will not begin if the client has unpaid invoices with Emocean Studios including the associated costs to transfer your website to a different service provider.
29.1 The process of transferring website domain names to a new or different service provider will be charged at the flat rate of $115 + GST.
29.2 The average timing for this to fully propagate is up to 72 hours.
29.3 A quote will be provided to the client with the estimated timing and costs to transfer the website domain name to the new service provider.
29.4 The transfer of a domain name will not begin until a supplied quote from Emocean Studios has been accepted by the client and paid in full.
29.5 The transfer of a domain name will not begin if the client has unpaid invoices with Emocean Studios including the costs associated with transferring a domain name.