1. These terms prevail over any terms the Client may issue. icon Graphic Design or Icon Web Design (Icon)’s quotation, whether verbal or written, (when accepted by the Client), and subject to that, these terms, together comprise a contract.
2. In these terms: GST and tax invoice have their meaning in A New Tax System (Goods and Services Tax Act) 1999; product means goods and / or services Icon may supply under the contract, and digital product means a product in digital format, such as a website, touchscreen, slideshow, video or software.
3. The Client must provide Icon on a timely basis with instructions / information / access to the Client’s people and relevant resources as reasonably required by Icon.
4. If Icon is to use any language / symbol / font / photograph / sketch / data / software / technical specification or other material sourced from the Client: (a) the Client warrants that such do not infringe 3rd party rights (such as copyright) or any law, are fit for purpose and will be delivered to Icon in the form and within the time Icon requires; (b) Icon is not obliged to check or test those things before use; and (c) the use of those things is wholly at the Client’s risk.
5. The Client alone is liable to proof all artwork and production files before sign-off and / or production. Such includes typography, spelling, grammar, colours, formatting and file errors.
OWNERSHIP OF PRODUCT
6. Icon remains the owner of any goods it supplies, until the Client fully pays for those goods. The Client grants Icon a lien over any goods (including intangible property) that is yet to be delivered to the Client until such time as all then outstanding invoices owed by the Client to Icon are paid in full. Risk of loss / damage to such goods passes to the Client upon delivery to the Client or, if Icon is to install the goods for the Client, upon installation.
7. If Icon creates and supplies any copyright work, then unless otherwise agreed in writing: (a) Icon owns the copyright; and (b) the Client obtains a non-exclusive, irrevocable, perpetual, non-assignable, royalty-free licence to use, adapt, reproduce, publish and sub-licence that work for the purpose/s for which created, effective upon the Client paying the price of that work to Icon.
8. If it is agreed for a copyright work created by Icon to vest in the Client, Icon has an irrevocable, perpetual, non-assignable, royalty-free licence from the Client to use the work for Icon’s own promotion and portfolio use.
9. If Icon supplies 3rd party software for a digital product (for example a software platform or content management system upon which a website is based), the Client must adhere to customary licence terms and conditions of the original supplier as advised to the Client before or on supply of the digital product.
10. If Icon’s quotation expressly states a price as an estimate, that is not a fixed quote or a maximum price.
11. Icon’s quoted price: (a) is not valid for a different kind / quantity of product than that stated in the quotation; (b) assumes work only during normal business hours; and (c) assumes no rework required or inefficiency due to the Client’s breach of these terms.
12. If after the contract forms the Client either requires any changes to a product from that initially contracted for, or requires any work be done with special urgency or after-hours, Icon may adjust its price as then agreed or, if not agreed in advance by a reasonable extent.
13. If the contract is cancelled, Icon may recover its time charges and expenses incurred before the cancellation.
14. Unless stated otherwise, a price (fixed or estimated) of a product: (a) is before GST; (b) does not include transport of product to the Client; and (c) does not include installation / commissioning of the product.
15. In addition to its price, Icon may recover from the Client the GST that Icon incurs by its supply of product to the Client.
16. In addition to its price, Icon may recover from the Client any external expenses incurred with the Client’s prior written approval. Where a significant external expense is likely (e.g., for a production run of artwork), Icon may require the Client pre-pay all or a portion of the expense.
17. Unless a price references agreed milestones, Icon may issue interim tax invoices at least monthly, even if the contract is then incomplete. In any event, when the contract is complete Icon must issue the Client a tax invoice for any amount then due under the contract.
18. If the Client disputes anything on Icon’s invoice, within 28 days of the date of the invoice, the Client must notify Icon (giving reasonable details), failing which the Client waives all rights to dispute that invoice.
19. The Client must pay Icon’s invoice by: (a) electronic transfer in clear funds to a bank account Icon nominates in writing, unless another method of payment is agreed to by Icon; and (b) the due date shown, and (unless Icon agrees) without deduction for any sum.
20. If an invoice is not paid within time, in addition to its other rights and remedies, Icon may: (a) cancel / suspend supply of product under any contract with the Client; and (b) recover from the Client as a debt a late payment fee accruing daily at 12% p.a. on the unpaid amount calculated from the due date until the date payment in full (plus accrued late payment fee) is made to Icon. Late payment fees accrued and not paid for 30 days add to the debt (are capitalised), and thereafter attract a late payment fee.
21. Unless otherwise stated, Icon’s description of its product accords with Australian trade usage.
22. Icon warrants: (a) any goods it supplies conform to any samples given and are owned by Icon (free of security interests granted by Icon) when supplied; (b) in supplying a service Icon will use reasonable care; and (c) content Icon creates will not infringe any 3rd party rights. Subject to the Australian Consumer Law if it applies, Icon does not give any warranty, representation, condition or guarantee of its supply not stated in these terms.
23. Icon will not be responsible for any loss or damage suffered by any party arising from a failure to comply with product labelling laws that were not communicated to Icon by the Client in writing.
24. Where Icon is not engaged to coordinate the printing of materials designed by Icon, it will not be responsible for any defects in the instruction of printers or any dissatisfaction in the colour or visual appearance of printed goods based on Icon’s designs.
25. Subject to the Australian Consumer Law if it applies: (a) a claim that product Icon supplies does not conform to the contract or is otherwise defective is not valid unless advised in writing (with reasonable details) to Icon within 7 days after the alleged problem was first found; and (b) Icon may decline a claim for defective product if the Client does not take reasonable steps to preserve the product (or the balance remaining) pending an inspection by Icon, if Icon requires inspection.
26. Subject to the Australian Consumer Law if it applies, if a product Icon supplies does not conform to the contract or is otherwise defective for reasons that are Icon’s responsibility, Icon’s liability for the problem is limited to (at its choice): (i) in case of goods, the prompt replacement of the goods or the supply of equivalent goods; (ii) in case of services, the provision of the services again; and / or (iii) in any case, a reasonable reduction in the price paid or payable.
27. If a product warranty claim is found or admitted to be without merit, Icon may recover from the Client as a debt any reasonable costs Icon incurs investigating the claim.
28. Icon may, from time to time, offer to provide you with a satisfaction guarantee in relation to the creation of a website. Where this offer is made, the following terms apply:
The guarantee will only apply to the creation of the homepage/landing page of the website. Once this page has been approved by you, the guarantee will be deemed to have been satisfied.
The guarantee entitles you to one revision of the homepage/landing page after it has been presented to you. If you are not satisfied with the revision, Icon may in its absolute discretion decline to provide further revisions and shall refund to you any deposit paid, less third party expenses.
The satisfaction guarantee only applies in relation to Icon’s own fees and charges. Where a third party expense (such as fonts, copywriting or imagery) have been incurred (with your prior knowledge), you will still be required to pay those fees and charges.
29. While Icon would endeavour to ensure that print-ready artwork is colour correct and free of errors, Icon is not liable for colour matching or production quality if the Client manages the printing process themselves.
30. In case of a digital product: (a) Icon is not liable to proofread content provided by the Client; (b) Icon offers no assurance an electronic file can be retrieved from Icon’s archive or storage at any time after the contract is complete; (c) Icon is not liable for loss of original functionality or appearance due to a change to the host ICT environment after initial installation; and (d) unless otherwise expressly agreed in writing, Icon is not liable to maintain the product after initial installation.
31. Despite any other provision of these terms but subject to law, the Client cannot claim against Icon (under common law, equity or statute) in connection with the contract, nor seek a reduction in a price: (a) for total amounts exceeding 200% (including GST) of the total prices (including GST) paid or payable under the contract; or (b) for any loss of income / revenue / profit / business / anticipated savings / goodwill / value of a capital asset / reduction in share price or any other types of indirect, special or consequential loss or damage whether or not foreseeable.
32. Icon may subcontract any of its duties, but remains liable to the Client for those duties.
33. If the Client is more than 1 person, the contract binds each of them jointly and severally, and each of them has authority to bind the other/s in connection with the contract, including that a notice to / from any such person is notice to / from all of them.
34. If the Client nominates a 3rd party as recipient of a product, or as the addressee of an invoice, the Client remains liable.
35. Except with Icon’s prior written consent, the Client may not assign the contract.
36. Icon may terminate this agreement by providing you with 7 days’ notice of its intention to do so. If this occurs, Icon will refund to you all amounts received for work not delivered at the date of termination (less any amount that is payable to a third party that was notified to you prior to being incurred).
37. You may terminate this agreement by providing us with 21 days’ notice. If you terminate the agreement, we will invoice you for all work undertaken by Icon prior to the date of termination (including for unfinished work), as well as any unavoidable third party charges (though we will take reasonable steps to minimise or mitigate against those charges upon receipt of notice from you). We will hold a lien over any work completed for you until such time as all outstanding invoices have been paid.
38. At all times a party must not make improper use or disclosure of any information about the other party (not then in the public domain) obtained in negotiations for, or in performance of, the contract.
39. Subject to clause 34, the contract does not prevent Icon supplying the same or similar product to any 3rd party.
40. In no case is Icon liable for any loss of revenue / profits / goodwill or any incidental, consequential or punitive damages as a result of any claim in connection with its supply of or failure to supply product.
41. A party is not liable for any delay to the extent caused by a circumstance outside that party’s reasonable control.
42. The contract may only be varied (including delayed) or cancelled as the parties agree in writing. A party waives a right under the contract only by writing signed by or for that party. A variation to Icon’s contractual duties should be agreed in writing as to the effect on the timetable and price. Absent such agreement, Icon is entitled to a reasonable additional fee / time to effect any increase to the initial scope of its duties.
43. In addition to its other rights and remedies, Icon may suspend / cancel the contract and retain or retake possession of product not paid for if Icon reasonably believes the Client to be insolvent, or if the Client is in default under any contract with Icon.
44. A party must pay all reasonable costs the other party incurs in enforcing the contract against, or recovering money from, the other party; such costs may include legal costs on a solicitor / client basis.
45. A party must take all reasonable steps to ensure emails (and any attachments) or other electronic data exchanged with the other party for the purposes of the contract is free of computer viruses or other malware.