Terms & Conditions

 
 

These are Tout Creative’s standard Terms and Conditions. Please take time to read through our Terms and Conditions thoroughly and ensure you understand them before you commence a project with us. By requesting services from Tout Creative you agree to our Terms and Conditions and you are aware that you are entering a binding contract – payment is required. Please also note that from time to time Tout Creative may need to alter these Terms and Conditions, which we’ll notify you about. Please contact us if you do not understand any of the terms or conditions.

Quotations are valid for a period of 30 days

PAYMENT TERMS

  • Retainers are paid a month in advance to secure your hours for the month ahead. You can increase your monthly set retainer days/hours at any time.

  • Retainers are a minimum 3 month commitment.

  • You can suspend your retainer at the end of a month (after the first 3 months), as long as we have at least 30 days notice.

  • Tout Creative will provide estimates and a list of projects that we will execute against your retainer/budget before the month starts. At the end of each month, Tout Creative will reconcile what has been spent and carry over any unused retainer/budget into the next month.

  • Unused hours of up to 50% of a month’s standard allocation can be carried over to the next month. 

  • Up to 50% of the next month’s allocation can be brought forward into the current month.

  • The maximum number of hours available for use for any give month cannot exceed 120% of the standard monthly allocation of hours.

  • Critical issues that occur outside of our regular working hours may be considered after-hours support and subject to a higher, pre-negotiated rate.

For projects under $5,000 the Client shall make payment within the following terms:

  • Payment in full on receipt of signed quotation

  • Projects commences after payment is made

  • Payments are non-refundable

For projects over $5,000 the Client shall make payment within the following terms:

  • 50% deposit on receipt of signed quotation

  • 50% is due half-way through the project

  • Payments are non-refundable

  • Projects commences after deposit is made

If a project is canceled by the Client, for whatever reason, the deposit will serve as a cancellation fee. A pro-rata payment will also apply based upon the time spent, if it exceeds 50% of the quoted work.

All printing accounts must be settled in full prior to the release of the files to the printer. Print products will be sent directly to the Client.

No final artwork or files will be delivered until final invoices are paid in full. Payment by cheque will entail waiting for clearance before supply of files. Copyright is not transferred until all invoices are paid in full, with no exceptions.

GST

Tout Creative is registered for GST. Goods and services tax (GST) is a broad-based tax of 10% on most goods, services and other items sold or consumed in Australia.

PRINT PRODUCTS AND MANAGEMENT

Please note that we charge a 20% mark-up on print products to cover bank fees, interest and any associated administration. On top we charge a $80 + GST (AUD) print management fee per print product requested.

SOFTWARE PRODUCTS

Any software that Tout Creative pays on behalf of you, note that we charge a 20% mark-up to cover bank fees, interest and any associated administration.

FEES FOR SERVICE

  • It is agreed that the fee for service shall be the cost estimates provided via our website/email/in person, unless work undertaken exceeds work outlined.

  • If work undertaken exceeds the items specified in the estimate or extra files are required upon completion of a project, the Client agrees to pay appropriate fees for the excess work/files, outside the scope of the original agreement. Prior to the commencement of that work, 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 $160 + GST (AUD) per hour will be payable.

  • If there are changes to all pieces of finished artwork after sign off by the Client a revised project fee or hourly fee of $160 + GST (AUD) will apply.

  • Full 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 Tout Creative 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.

SUPPLY OF PROJECT CONTENT

Images

Images supplied by the Client. If you require Stock images or vectors, this will be an additional cost.

Text

  • Text supplied by the Client, unless Tout Creative’s copywriting services are used.

  • All text is supplied at the start of the project.

  • Text should be as close as reasonably possible to the final draft.

  • Text should be accurate with spelling and grammar checked.

  • Text should have little or no formatting – except to indicate: main headings, sub headings, body text, bullets, lists, captions, etc.

  • All text must be typed and supplied in a common text editor such as: Microsoft Word, Google Doc, TextEdit, etc.

  • If text is not typed we will charge an hourly fee of $80 + GST (AUD) to type out the text.

  • Tout Creative assumes all written content adheres to copyright laws.

Logos

  • It is preferred that logos are supplied as a Vector in Adobe Illustrator or EPS formats. 

  • If logos are supplied in JPEG format or have “pixels” within them, the file will be submitted to a quality control test and may need to be retraced to meet quality reproduction standards and therefore will incur a charge.

PROJECT DURATION & CLIENT RESPONSE TIME

The Client agrees to provide timely responses to Tout Creative after receiving status notifications, work for review or requests for information. The Client shall have 30 days to respond to each draft/request for information submitted. If the Client has failed to respond after 30 days, Tout Creative will deem the project complete. At such time, Tout Creative shall have no further obligation to the Client, and the Client shall pay Tout Creative all fees and expenses associated with the work performed.

APPROVAL OF FINAL ARTWORK

  • Tout Creative takes all care to avoid errors. However Tout Creative will not accept liability for any errors once the artwork has been approved.

  • The Client is to proof read and approve all final copy and art before the production of artwork. Client email verification shall be conclusive as to the approval of all artwork prior to their release for printing, implementation or installation.

  • No reimbursements/refunds/reprints are given after final approved design has gone to print/live to web, due to oversights by the Client.

PRINT – COLOUR VARIATIONS

  • What you see on screen will always look slightly brighter than the print version, depending on your screen set up.

  • 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.

  • Our printer may not print exactly as your printer.

  • Colours also vary screen to screen.

  • There will be no reprints at the expense of Tout Creative.

TERMINATION OF SERVICES DUE TO NON PAYMENT CLAUSE

Tout Creative may discontinue services if an amount payable to Tout Creative is overdue. In any such event, the Client remains liable for the total cost of the contract including all disbursements; unless otherwise agreed between the parties. If the invoice remains unpaid, copyright on all work remains with Tout Creative even if the agreement is terminated.

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 canceling a project after a project has commenced, the advance payment (deposit) will be forfeited in lieu of compensation to Tout Creative. This is to cover design and administration time spent, resources purchased and allocated, research time and administration costs. If the project is more that 50% completed (this is determined by Tout Creative and the client by negotiation) a pro-rata payment is payable for time spent up until cancellation notice, at an hourly rate of $160 + GST (AUD) per hour.

If a project is canceled by Tout Creative, 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 is retained by Tout Creative even if the agreement is terminated.

LATE PAYMENTS & DEFAULT

Any account outstanding for more than sixty (60) days Client(s) are liable to meet in full the seller’s debt recovery, legal costs and/or commissions and internal accounting charges (recovery fees), travel expenses, and such recovery fees will be added to the buyers account and form part of the principal debt.

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 Tout Creative, unless prior arrangements have been made. Tout Creative shall at it’s sole discretion suspend any and all services provided to the Client by Tout Creative or it’s 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 monies 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 it’s 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.

Any account not paid within the time specified on the invoice will be liable for interest at the rate of 2% per annum. Capitalised Interest will be added to the account at the end of each month and form part of the principal debt.

If The Client has not made payment in 60 days and no other written payment arrangement has been agreed & approved by Tout Creative, Tout Creative will supply The Client’s details to the Credit Reference Association (CRA) as a defaulter. The CRA allows its members to list companies that fail on their payment. This default of payment is flagged next to the defaulter’s name for five years. The CRA has over 4,000 members including most banks and financial institutions. They have access to this information and may choose to refuse credit on this basis.

As part of Tout Creative’s Terms & Conditions the Client agrees that non-payment will be reported to credit rating agencies and it might negatively effect the Client’s credit rating.

Tout Creative retains all copyright for work performed until full project costs have been paid. Tout Creative reserves the right to reuse or resell work undertaken in the case of payment default.

Tout Creative 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.

DISCLAIMER

Graphic design, strategy, photography and marketing are all highly creative and subjective art forms. As such Tout Creative take every possible care with professional advice offered and any suggested creative concepts and/or their implementation, however the Tout Creative cannot be held responsible for variations between expectation and outcome.

WARRANTIES AND EXCLUSION OF LIABILITY & LITIGATION

The client agrees to indemnify and hold harmless Tout Creative from any and all claims, demands, losses, causes of action, damage, lawsuits, judgments, including lawyers’ fees and costs, but only to the extent caused by, arising out of, the work supplied by Tout Creative.

1.1 Tout Creative excludes all Implied conditions and warranties except any implied condition or warranty the exclusion of which would contravene any statute.

1.2 To the extent permitted by law where liability cannot be excluded under clause 1.3 and in the event of a breach of any non-excludable condition by Tout Creative in relation to the Services, Tout Creative’s liability is limited to supplying those Services again or paying for the cost of having those Services supplied again.

1.3 To the extent permitted by law and subject to clause 1.2:

(a) none of Tout Creative and its Related Body Corporates and their respective directors, officers, employees, agents or contractors will be liable for any direct or indirect loss or damage or special or consequential loss and damage (including but not limited to, loss of profits, business opportunity, data, goodwill or anticipated savings) arising in contract, tort or otherwise from the performance or non-performance of the services, or Your use of or reliance on the Services under this Agreement; and

(b) Tout Creative limits its total aggregate liability referred to in clause 1.2

In the amounts paid to Tout Creative for Services in the preceding 12 month period.

1.4 You acknowledge and agree that:

(a) You are solely responsible for the content and accuracy of all information equipment, materials and content provided or approved by You: and

(b) Tout Creative will not be liable for the operation or performance of any third party software equipment, servers, products or other material used in connection with the Services including without limitation any third party communications, Internet or web hosting services.

CONFIDENTIALITY

2.1 Neither party may, without the written approval of the other party, make public or disclose to any third person any Confidential Information received from the other party.

2.2 For the purposes of this clause, ‘Confidential Information’ includes information marked as confidential, and information which by its nature is confidential, is known to be confidential or whim the receiving party ought to know is confidential, and all information relating to the Tracking Links.

2.3 The obligations of confidentiality under this clause do not apply to information which:

(a) is or becomes generally available to the public (other than by reason of a breach of an obligation under this clause);

(b) is or has been independently developed by the recipient and the recipient establishes such independent development; or

(c) is required to be disclosed by law.

2.4 If disclosure is required for the reasons specified In clause 2.3(c), only the minimum information required to comply with the law must be disclosed.

2.5 Notwithstanding clause 2.1, Tout Creative may cite the performance of the Services to its clients and prospective clients as an indication of its experience.

PROCUREMENT

We may advise you on or obtain for your goods or services from third parties. When you have approved our estimate for these goods or services you become responsible for their payment – we act as your agent in these transactions. We are not your agent in any other way. Any claim you may have in relation to these goods or services (e.g. quality) is directly with the supplier and not with us. Although you assume responsibility for the materials once they are delivered to you, you do not own those materials (such as printed materials, WordPress themes, Saas products etc) until you have paid us in full for their production /use. We have the right to repossess those materials and to prevent you from using them if you do not pay for them on time.

INTELLECTUAL PROPERTY, COPYRIGHT & GRANTING OF RIGHTS

Rights to use the any artwork created by Tout Creative are granted only upon receipt of full payment. If final payment is not paid your contract with Tout Creative is null and void and rights will not be granted without re-evaluation by Tout Creative and determined in writing. All payments made to Tout Creative are non-refundable.

Tout Creative retains full ownership of design concepts and materials it produces in the course of a project. Once a final concept is delivered to a client and full payment, unless otherwise states, is received, the final files will be transferred to the client and they will retain usage and ownership for purposes outlined in the project invoice. Upon full payment, the client shall be granted ownership/usage of the final artwork as specified in the original quote/invoice.

Tout Creative does not supply the Client with raw or working files such as InDesign, Photoshop, Illustrator or Web Code files, unless otherwise agreed in the quote or project proposal. For logos designed by Tout Creative, Tout Creative does supply Illustrator files of the final design of the logo.

This granting of copyright does not extend to the use of design proposals and concepts submitted to but not approved for the work outlined.

Unused concepts remain the property of Tout Creative.

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 Tout Creative until such time an agreement is in place. As part of Tout Creative terms of business, the copyright licence is automatically released to the client on receipt of final payment for the commissioned work. Tout Creative 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 Tout Creative in print or digital media portfolios, social media and blogs, except where the client has specifically requested in writing otherwise.

Tout Creative reserve the rights to certain elements used to create your designs including fonts, icons, graphics, stock images, layouts, colour palettes, patterns, textures and other non-exclusive items.

Any material supplied to Tout Creative by the Client in the project brief or duration of the project, shall be free of copyright restrictions, owned by or licensed to the client for use by Tout Creative for use course of the project. Tout Creative will not be liable for any intellectual property or copyright issues resulting from the use of client supplied resources.

Other than for the promotional use of Tout Creative all services provided shall be for the exclusive use of the client’s said purposes only. Designs may not be used for other promotional items, printed or website materials without permission. Upon payment of all invoices, reproduction rights for all approved final designs created by Tout Creative shall be outlined in the Project Proposal. For additional usage, price will be assessed as needed.

The Client agrees to allow Tout Creative to place a small credit on printed material, exhibition displays, advertisements and/or a Tout Creative own website and on the client’s website. This will be in the form of a small logo, line of text, or hyper-link placed towards the bottom of the page.

The Client also agrees to allow Tout Creative to place websites and other designs, along with a link to the client’s site on Tout Creative’s own website for self promotional purposes.

Until final payment Tout Creative retains ownership of all artwork and website architecture.

Tout Creative retains all Intellectual Property Rights in the Client Reports, the Tracking Links and any other materials generated as a result of the Provision of the Services from the time of creation.

You grant Tout Creative a non-exclusive license to use Your Intellectual Property Rights in Your Site to the extent necessary for Tout Creative to perform the Services.

FORCE MAJEURE

Tout Creative 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 Tout Creative including but not limited to war, 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.

LAW

This Agreement is governed by the law in force in Victoria, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in Victoria, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement.

INVALIDITY & ENFORCEABILITY

Nothing in this Agreement is intended to exclude, restrict or modify rights which The Client may have under common law, Consumer Legislation, other legislation or otherwise (Relevant Laws) which may not be excluded, restricted or modified by agreement. If any provision of this Agreement is invalid under any Relevant Laws, that provision is enforceable to the extent that it is not invalid, whether it is in severable terms or not.

WEBSITES – TECHNICAL INFORMATION

Staging Server

We love seeing progress so we’ve set up a LIVE staging server so that you can see your site taking shape. Please be aware that a lot of the construction of a great site happens behind the scenes so what you might see may not be a finished product. When we’ve conducted all the necessary testing, we’ll get in contact and ask you what you think.

Design

We create look-and-feel designs, and flexible layouts that adapt to the capabilities of many devices and screen sizes.

HTML, CSS and Javascript

We deliver templates developed from HTML5 markup, CSS3 stylesheets for styling and unobtrusive Javascript for feature detection, poly-fills and behaviours.

Browser testing

Browser testing no longer means attempting to make a website look the same in browsers of different capabilities or on devices with different size screens. It does mean ensuring that a person’s experience of a design should be appropriate to the capabilities of a browser or device.

Desktop browser testing

We test our work in current versions of major desktop browsers including those made by Apple (Safari), Google (Chrome), Microsoft (Internet Explorer), Mozilla Firefox and Opera. We’ll also test to ensure Microsoft Internet Explorer 8 for Windows users get an appropriate, possibly different, experience. We’ll implement a single column design for Internet Explorer 7 and below for Windows and we won’t test in other older browsers unless you specify otherwise. If you need an enhanced design for an older browser, we can provide a separate quote for this.

Mobile browser testing

Testing popular small-screen devices is essential in ensuring that a person’s experience of a design is appropriate to the capabilities of the device they’re using. We test our work in:

  • iOS~: Safari, Google Chrome

  • Android 4.1~: Google Chrome, Firefox

We currently don’t test Blackberry OS or Blackberry QNX, Opera Mobile, Symbian or other mobile browsers. If you need us to test using these, we can provide a separate quote for this.

Technical support

We’re not a website hosting company so we don’t offer support for website hosting, email or other services relating to hosting. You may already have professional hosting and you might even manage that hosting in-house. If you don’t have hosting we can set up an account for you at one of our preferred hosting providers. We can set up your site on a server, plus any statistics software such as Google Analytics and we can provide a separate quote for this. Then, the updates, and management of that server will be your responsibility.

Digital marketing

  • ‘Click Through’ means an action that requires clicking on a link in a search engine results page to visit a website.

  • ‘Client Reports’ means the analysis that will be provided through the Delivery Method as set out in the Proposal.

  • ‘CPC’ means cost per click.

  • ‘Delivery Method’ means the delivery method for the Client Reports as set out in the Proposal.

  • ‘Tracking Links’ means the technology provided by Tout Creative to deliver the Services and generate the Client Reports.

  • ‘Your Website’ means the website described in the campaign URL section of the Proposal.

Licence

  • During the term of this Agreement Tout Creative grants You a licence to use the Tracking Links in accordance with their usual function.

  • You must not reverse engineer or decompile any software used to deliver the Service in any way (except to the extent permitted under applicable laws).

Client reports

  • Tout Creative will provide You with Client Reports for the term of this Agreement, to accordance with the Delivery Method.

  • You must only use the Client reports for Your internal business purposes.

Client acknowledgments

You acknowledge that:

  • Client Reports are based on information available at the time the applicable Client Report is generated, and may differ from results that are shown by a particular search engine after that time;

  • Client Reports and the Services may be affected by changes made to third party advertising platforms without prior notice to Tout Creative;

  • Tout Creative cannot control or predict the volume of pages submitted to, or accepted by, search engines;

  • Tout Creative cannot guarantee the performance of Your Website in the rankings of a particular search engine;

  • Tout Creative is notified upon changes to Your Website including links, design and structure that can effect the Tracking Links;

  • Tout Creative is notified of any change in the mailing address provided in the Search Marketing Order Form by You;

  • You agree to submit all final materials necessary for the completion of services within seven (7) days of receiving instructions from Tout Creative; and

  • You agree that statistics for determining the number of click throughs (visitors) to Your Website will be derived from the Tout Creative Tracking Links, Tout Creative agrees to provide raw click through data at Your request.

GENERAL

  • Tout Creative may engage agents or subcontractors to assist in the performance of this Agreement.

  • Tout Creative will not be prevented or restricted from providing services similar to the Services to any other person.

  • Tout Creative will not be liable for any failure to perform or delay in performance of any obligation where such failure or delay is due to anything beyond its reasonable control.

  • Any failure by a party to insist on strict compliance with any provision of this Agreement or any delay by a party in exercising its sights under this Agreement will not constitute a variation or waiver of any provision of this Agreement or of any right available to that party.

  • Nothing in this Agreement excludes, restricts or modifies the application of any statutory provision where to do so would contravene that statute or came any part of this Agreement to be void or voidable.

  • Part or all of any provision of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining provisions continue in force.

  • Points: Intellectual Property, Confidential Information, Fees For Service and any other limitations, exclusions, indemnities and confidentiality provisions set out in this Agreement will survive termination or expiry of this Agreement for any reason.

  • Your may not assign or otherwise deal with this Agreement or any right under this Agreement without Tout Creative’s prior written consent.

  • This Agreement will be governed by the law applicable In the State of Victoria, Australia and the parties irrevocably submit to the exclusive jurisdiction of courts in that State.

  • Each party agrees to do all things that may be necessary or desirable to give full effect to every part of this Agreement if asked in writing by the other party to do so.

  • To the extent of any inconsistency the Terms take precedence over the Proposal.

EXTENSION

The parties agree that this agreement may be extended by written mutual agreement, and any such extension will be subject to the Terms described in this Agreement.

VARIATION

These terms and conditions may be varied at any time by Tout Creative giving fourteen days notice to You setting out the details of such variation. The variation will deemed accepted by You if You do not challenge the variation within fourteen days. In the event that You do challenge the variation within the fourteen day period then the terms and conditions which were in effect at the time of the variation being proposed will remain in effect until such time as You and Tout Creative agree on what variation (if any) is to be made to those terms and conditions.

Thank you for taking the time to read, understand and determine your agreement to this document. By requesting services from Tout Creative you agree to our Terms & Conditions and you are aware that you are entering a binding contract.