TERMS AND CONDITIONS
Below are Cloud Cartel’s (throughout this document will be referred to as CC) standard terms and conditions. It is vital that you (The Client) please take time to read through thoroughly and ensure you fully understand these terms and conditions and their implications before you commence any project with CC. Please also note that from time to time CC may need to alter these terms and conditions without notice. Please contact us if you do not understand any of the terms and conditions in this document. All costs shown in our quotes, proposals, website and other marketing material are exclusive of GST, unless otherwise stated. GST of 10% applies to all invoices issued by CC.
Commencement of work – Instructions to proceed with the estimate/ proposal or quote provided to you by CC constitutes acceptance of the following terms and conditions. Fixed Fee components of estimates are firm for three months from the date of proposal. Estimates not accepted within that time may be subject to adjustment.
Payment Terms – Upon approval to proceed “The Client” agrees to pay a 50% deposit of the quoted amount to commence any project, with the balance payable prior to delivery. 100% upfront payment required if the total cost of the project is less than $1,000. Once research, resources allocated or design work has commenced on a project, this deposit is non-refundable. In the case of a change of mind by “The Client” this deposit is non-refundable. CC endeavours to provide services that meet and exceed a client’s needs and expectations, but in the event of a “change of mind” (after a project has commenced) by “The Client”, the initial 50% deposit is forfeited, plus a pro rata payment based upon the time spent. If the work time exceeds 4 calendar weeks in duration, “The Client” agrees to a progress payment of 50% of the balance per month until the conclusion of the project, with any outstanding amount payable in full upon delivery. All website projects are invoiced according to their progress with payments required up front of a 50% deposit to commence design, 40% for design completion and to proceed to development and 10% prior to going ‘live’. All printing and third party accounts must be settled in full prior to the release of the files to the third party supplier. If you are having difficulty paying your invoice, please get in touch as soon as you are aware of the issue, so we can discuss a solution that works for your company. Projects/work that have been sent to the customer for final review and have not received feedback within 7 days are deemed complete and will, if applicable, have the final invoice issued for payment.
Alternative Payment Terms – “The Client” may propose Alternative Payment Terms and CC may accept payment by reference to a percentage of the Turnover each month for the duration of the website, app or other product. “Turnover” means the total actual sale price of all goods and services sold in Australian dollar (including the amount of goods and services tax (GST) collected) recorded on or through or as a result of the product and services provided by CC, or any related / connected website, app or other product or service. Turnover does not include (a) the amount of uncollected credit accounts written off by “The Client” (except to the extent that amounts of a credit account previously written off by “The Client” are recovered); (b) the amount of any cash or credit refund allowed on a transaction the proceeds of which have previously been included as turnover, if the merchandise is returned and the sale is cancelled; (c) the amount of delivery charges; and (d) the price of merchandise returned to shippers, wholesalers or manufacturers. If Alternative Payment Terms are agreed, “The Client” must make payment to CC of its agreed percentage of Turnover within 7 days after the end of each month, and further must give CC (a) within 7 days after the end of each quarter a detailed statement of the Turnover and, (b) if requested by CC, an audit report from an independent accountant stating that in his or her opinion the statement fairly presents the turnover of the business during that year or other period to which the statement relates; and (b) when reasonably requested by CC, access to the financial records of “The Client”. “The Client” agrees that CC may include code in the website design to allow CC to monitor and collect Turnover data directly.
Design samples – “The Client” also agrees to allow CC to showcase any/ all work created in the course of a project as part of CC portfolio. CC acknowledges the confidential nature of projects and agrees to only display project work once product/ site has been publicly launched/ commences.
Force Majeure – CC shall not be liable for any failure or delay in supply or delivery of products/ services where such failure or delay is wholly or partly due to any cause or circumstances whatsoever outside the reasonable control of CC. Including but not limited to 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, technological changes or updates, accidents of any kind or act of terrorism. A “reasonable time frame” for website and app development is within 12 months however may be extended by client requests, amends or delays.
Fees for service – It is agreed that the fee for service shall be the cost estimates provided via email, unless work undertaken exceeds work outlined. CC’s Standard hourly rate is $180 plus GST per hour. Additional time will be billed in 15-minute increments, rounded to the next highest quarter hour. If work undertaken exceeds the items specified in the quote, “The Client” agrees to pay appropriate fees for the excess work, outside the scope of the original agreement or time estimates. Wherever possible “The Client” will be notified of increases in the scope of the project.
Excess work – This is defined as any work involving additions to the list of items defined in the Estimate of Services/ Quote/ Proposal or changes to all pieces of finished artwork after sign off by an authorised representative of “The Client”. From time to time “The Client” will require extra design requirements during a project, or extra files upon completion of a project. “The Client” will be informed that the alterations or changes requested fall outside the scope of the original estimate. If “The Client” wishes these alterations to be made they must agree in writing, and a fee of $180 plus GST per hour will be payable. Should additional design not initially quoted for be requested during the design process, a progress payment will be payable prior to further work being carried out. Otherwise, all additional costs will be added to the final invoice, payable prior to delivery of design files. Publication and/or release of work performed on behalf of “The Client” by CC may not take place before cleared funds have been received. Any booking fees, delivery fees, design commencement fees, or progress payments are non-refundable once work has commenced if the contract is terminated by “The Client”, after work has commenced.
Unforeseen Circumstances – CC is not responsible for any problems with the site or project, which are only revealed when carrying out the works. CC will carry out any work needed to fix any issues that may arise and notify “The Client” where possible, if the Contractor considers it necessary for satisfactory completion of the works. Any additional work necessary due to an unforeseen circumstance is a variation and the “Unforeseen Circumstances” clause applies. If a price is not agreed “The Client” agrees to pay the cost to carry out the work at the standard hourly rate.
Liability & Litigation – It is agreed that all work and materials provided for “The Client” by “Cloud Cartel” will be free and clear of all liens and encumbrances and may be lawfully used by “The Client” without infringing upon the rights of others including, and without limiting the generality of the foregoing, any copyright trade secret patent or trade mark rights of any third party. It is agreed that CC indemnify and hold “The Client” harmless from and against all claims for injury or death to persons or damage to property (including cost of litigation and legal fees) caused by, arising from or incidental to the services to be performed during the performance of the work outlined, except any such claims which are caused by the negligence of “The Client” or its employees, and it is agreed that we shall notify “The Client” in writing of full details of any such claim. Under no circumstances shall CC be liable to “The Client” for an indirect or consequential loss suffered by “The Client” relying on the information included in the supplies prepared by CC including (without limitation) loss of profit, loss of contracts or pure economic loss. Any liability is strictly limited to the direct losses associated with remedial costs of the supplies only, not to include claims for delays, out of sequence working, non-productive overtime, award of costs, etc. Liability to any third party for any reason is specifically excluded unless separately agreed in writing.
Approval of Final Artwork – While CC takes all care to avoid errors, CC accepts no responsibility for typographical errors, spelling mistakes, or incorrect information on any project committed to print or production. It is “The Client” responsibility to proof read and approve all final copy before the production of artwork. The email verification of “The Client” representative shall be conclusive as to the approval of all artwork prior to their release for printing, implementation or installation. No refunds or reprints are given after a final approved design has gone to print due oversights by “The Client’s” proof reading.
Print Returns And Refunds – It is agreed that the CC is not responsible or held liable for any errors contained in the final product after the final product has been approved by “The Client”, (approval may be given in writing), committed to print or posted in view of the public. CC will not be held responsible for and changes or amendment made after approval. It is the sole responsibility of “The Client” to notify CC of any such errors during the revision cycle and before the final files have been generated. In the event of a need to reprint due to errors in content, “The Client” must inform CC within 3 days of product acceptance, and must return the product (at the cost of “The Client”) within 10 days of acceptance for assessment. As with all print projects, payment for re-printed project MUST be prepaid.
Print – Colour Variations – With all printing there may be some colour variations from what you have seen on screen to what the final product looks like and previous orders. This is due to the nature of CMYK printing and bulk-run printing system. There will be no reprints at the expense of CC.
Copyright – CC retains full ownership of design concepts and materials it produces. Unused concepts remain the property of CC. CC may still use paid-for concepts in its promotional materials and in its design portfolio. CC retains the right to display a small byline claiming design credit on works it produces, except for corporate stationery. CC reserve the rights to certain elements used to create your projects including RAW/ working files, fonts, patterns, stock images, textures, colour palettes and other non-exclusive items. CC reserves the right to use stock images in the creation of designs if required. Costs of this will be outlined to “The Client” prior to purchase if not included in the proposal quote. Other than for the promotional use of CC all services provided shall be for the exclusive use of “The Client”’s said purposes only. All work may not be used for other promotional items, website or printed materials without permission. Upon payment of all invoices, reproduction rights for all approved final designs created by CC may be outlined in the Project Proposal. For additional usage, price will be assessed as needed. In accordance with the Australian Copyright Act (1968), ‘licensing of copyright is subject to a mutual agreement made between client and designer’. Copyright will remain property of CC till such time an agreement is in place. CC reserve the right to use all artwork produced, concepts produced in the course of the project (including those concepts not selected) and revisions for the purposes of promoting CC in print or digital media portfolios, social media and blogs, except where “The Client” has specifically requested in writing otherwise. Any and all RAW/ working files strictly remain the property of CC unless otherwise specified and agreed to by CC, purchase of RAW/ working files may be discussed at a minimum rate of 3x the original design and production time plus any third party items including but not limited to fonts and stock photography or video content.
Goodwill – This proposal assumes goodwill from both CC and “The Client” regarding:
- What can reasonably be achieved in a given time frame
- Making best use of resources to achieve the most effective outcomes
Resending Uploading Files – If a client loses or accidentally deletes the files delivered by CC at the completion of the project, CC can re-upload to Drop Box or Google Drive, for a fee of $90 plus GST per request. Providing the request from the “The Client” has been made within 2 years from the date of completion.
Artwork on DVD or USB Drive – If any client artwork is required on CD/ DVD or USB, an administration fee of approximately – $180 plus GST.
Website design credit – “The Client” agrees to allow CC to place a small credit on printed material exhibition displays, advertisements and/or a CC Graphic or hyperlinked text on the “Client” website. This will be in the form of a small logo or line of text placed towards the bottom of the page. “The Client” also agrees to allow CC to place websites and other designs, along with a link to “The Client’s” site on CC own website for self-promotional purposes.
International Work – Some of CC clients come from outside Australia. Being a niche market we are global specialists in the field of graphic and web design and as such create work across the world, using contemporary communication methods such as Google Drive, Skype, Drop Box, Hightail, email and chat, along with the more traditional devices such as telephone.
Termination policy – From time to time circumstances beyond the control of either party may result in the need for project cancellation. In the event of “The Client” cancelling a project after a project has commenced, the advance payment (deposit) will be forfeited in lieu of compensation to CC. This is to cover design and administration time spent, resources purchased and allocated, research time and administration costs. If the project is more than 50% completed (this is determined by CC and “The Client” by negotiation) a pro rata payment is payable for time spent up until cancellation notice, at an hourly rate of $180 per hour plus GST. If a project is cancelled by CC, due to unforeseen circumstances, the deposit will be refunded in full to “The Client” in a timely manner. In the event of cancellation of the project by “The Client”, ownership of all copyrights and the original artwork and disks shall be returned and retained by CC.
Website design post-completion alterations – Once web design is complete, CC will provide the customer with the opportunity to review the resulting work. CC will make one set of minor changes at no extra cost within 14 days of the start of the review period. Minor changes include small textual changes and small adjustments to placement of items on the page. It does not include structural changes, changes to images, colour schemes or any navigation features. Any minor changes can be notified to CC by e-mail and confirmed by post. CC will consider that “The Client” has accepted the original draft, if no notification of changes is received in writing from the customer, within 14 days of the start of the review period. An hourly fee after this time for revisions and amendments is payable of $180 per hour plus GST if applicable.
PPC Advertising (Pay Per Click) – The Management Fee for your Pay per Click campaigns will be charged in advance on a recurring monthly basis with the first payment date as the date your campaign is launched. CC will invoice you the Pay per Click management fee, on the same date every month and billed in accordance with these terms & conditions. CC reserves the right to stop managing your Pay per Click accounts and terminate this Agreement at any time by written (or email) notice to you. If this occurs, your monthly management fee will stop immediately and no further payments will be charged. If you wish to suspend or cancel the management of your Pay Per Click accounts at any time then please let us know by email at least 30 days in advance of terminating the agreement. Upon cancelling your Pay per Click management, all amounts owing to CC will need to be paid in full; any outstanding amounts will be due within 7 business days of cancellation. After cancellation “The Client” agrees to forfeit any outstanding credit. CC reserves the right to pause Pay per Click advertising on any platform it manages on your behalf if invoices are more than 7 days overdue. CC will endeavour to help you obtain your online advertising goals by providing you with advice, information and technical services in relation to Pay Per Click advertising. Unless specifically stated to the contrary in this Agreement, CC do not guarantee any particular rate of return or performance of any online advertising (including but not limited to any particular position or placement). We cannot be held responsible for commercial outcomes which are associated with the management of your Pay Per Click accounts for your business and/or websites. By entering this Agreement with CC you give us permission to access your Pay per Click accounts for the purposes of optimisation and management of your advertising platform. CC do not provide direct access to Google Ad portals. The Monthly Management is a separate service from the “Media Spend” fees that the Advertising Platforms will charge you. Cancellation of your management does not automatically stop your Media Spend from running and incurring Pay per Click “Media Spend” fees. CC will not be liable for any amounts that any Advertising Platform charges you following the cancellation of your management with CC. If you wish to cease advertising online at the same time that you cancel your CC management, please notify us by email. The PPC contract will continue after the initial term on a month by month basis unless cancelled by “The Client” in accordance with our standard terms and conditions.
SEO – CC makes no warranty that a Search Engine Marketing or Search Engine Optimisation campaign will generate any increase in sales, business activity, profits or any other form of improvement for your business or any other purpose. CC can not guarantee that any campaign will lead to consistent exposure of “The Client’s” business or specified keywords during the contract period. “The Client” acknowledges that Google continually updates its search algorithm, which may have a negative impact on rankings at any time, this does not release “The Client” from the contract. CC will endeavour to rectify any negative losses as quickly as possible but make no guarantees the progress will be recovered. CC must be notified of any changes that “The Client” proposes to make to the website prior to such changes being made as some amendments may have a negative effect on the ranking of the website within the search engines. Examples of changes that will affect the website’s ranking include but are not limited to the following: amendments to Header Title tags, uploading duplicate content, changing navigation and creating links to third party websites. ALL proposed changes by “The Client” to the website must be approved in writing by CC before being actioned. Failing to do so releases CC from any liability in the event that the website’s ranking falls. Clients who make changes without consulting CC do so at their own risk. SEO campaigns can be suspended for 1 month or 2 months. “The Client” acknowledges their rankings will be affected by a suspension of their service & they take full responsibility for the expected loss of position. “The Client” acknowledges CC will not be responsible for returning their rankings, once the campaign is recommenced. The campaign will be continued with the same level of resources used prior to the suspension. The SEO contract or agreement will continue after the initial term on a month by month basis unless cancelled by “The Client” in accordance with our standard terms and conditions. Clients must provide a minimum of 30 days notice in writing to [email protected] Any cancellation within this 30 day period will require a final payment of 50% of the following month’s fee to cover any and all third party accounts.
Confidentiality – It is agreed that employees of CC shall not at any time either during the continuance of the work outlined or thereafter, except in the course of their duties, divulge any of the confidential affairs of “The Client” or any of its clients or associated companies to anyone whatsoever without the previous consent in writing of “The Client”.
Late Payments & Default – Accounts which are not paid within 15 days will incur a late administration fee of $90 plus GST. Accounts which remain outstanding for 30 days after the date of invoice will incur an additional late payment fee equivalent to 5% of the project costs for each week payment is outstanding. An account shall be considered in default if it remains unpaid for 30 days from the date of invoice or “The Client” has stated expressly that they do not intend to pay an invoice by CC unless prior arrangements have been made. CC shall at its sole discretion suspend any and all services provided to “The Client” by CC or its subsidiaries (including but not limited to hosting, websites designed files, concepts, artwork, and email) and employ debt collection measures until the total outstanding balance has been fully paid. This includes any and all unpaid accounts due for services ordered, including, but not limited to design, hosting, domain registration, search engine submission, maintenance, sub-contractors, printers, photographers and libraries plus bank interest calculated daily for each day payment is overdue. Suspension of such services does not relieve “The Client” of its obligation to pay the due amount. Files on external servers, such as hosted e-commerce solutions will be removed and held until payment is made or for 30 days until “The Client” has paid for their invoices in full. “The Client” whose account is in default agree to pay CC reasonable legal expenses and third party collection agency fees in the enforcement of these Terms and Conditions. CC retains all copyright for work performed unless a prior agreement in writing has been made and approved. CC reserves the right to reuse or resell work undertaken in the case of payment default. CC accepts no liability or responsibility for loss of income or damage to “The Client” for work removed from third party servers, as a result of non-payment and “The Client” will not take legal action for any situation arising from invoice disputes or removal of the disputed work in such cases.
Amendments to these Terms and Conditions – All and any amendments to the terms and conditions outlined in this submission must be provided in writing by “The Client” and signed by an authorised representative of CC prior to the commencement of work outlined in this submission.
Freelance Contractors and Confidentiality – All contractors employed by CC agree to CC’s confidentiality and nondisclosure of all clients, intellectual property and or data. Contractors of CC agree to non-solicitation for a minimum period of 36 months after the conclusion of their work with CC. If this was to be breached by the contractor, CC will take swift and reparatory measures to ensure “The Client” is made aware that the contractor in question is no longer a representative of CC and acting independently. Furthermore the unlawful contractor will be prosecuted through legal channels to the full extent of the law in such cases. CC aim for complete security of our clients and if we select contractors it is based upon previous work, references, and global checks with previous employers, as well as compliance with strict CC guidelines of professional behaviour and ethics. Any and all intellectual property, design work, client materials or data developed with or for CC or CC’s clients and upon entering into this agreement shall remain the property CC including any improvements thereto and that property will be kept confidential by the other party from any disclosure by the recipient to any other person or corporation in any form whatsoever during the currency of this agreement and for 36 months after the expiry or termination of this agreement unless with the prior written consent of the disclosing party. The data of CC shall remain in the possession CC unless required for the undertaking of the business of the Principal during the event and in that case with the consent of the Principal. All information about, or in any way relating to CC, its business, transactions, affairs, techniques or processes, or its clients, which the other party obtains or learns during the currency of this agreement is strictly confidential. The Contractor hereby indemnifies, and agrees to keep indemnified CC and its respective officers, servants, employees and agents, against all losses, liabilities, claims and expenses which arise from: (a) any act or omission of the Contractor in connection with the Services whether at common law, or for breach of statutory duty, or under any other statute or law; (b) any injury or damage suffered by the Contractor; (c) without limiting the above, any act or omission of the Contractor that causes or contributes to any loss, liability, claim or expense being incurred by CC under or in connection with the Contract. The Contractor shall take out and maintain adequate insurance to cover its obligations under this Agreement.
Disclaimer – Graphic design, strategy, photography, TVC, illustration and marketing are all highly creative and subjective art forms. As such CC take every possible care with professional advice offered and any suggested creative concepts and/or their implementation, however CC cannot be held responsible for variations between expectation and outcome. All information contained is intended for general information purposes only. The information is provided by CC. We try to keep the information up-to-date and ensure that it is correct, however, we make no warranties of any kind concerning the accuracy, completeness, suitability, reliability, or availability of the information contained, or any products, services, links, or graphics that may be found. Use this information at your own risk.