GENERAL TERMS AND CONDITIONS OF TRADE
Read the following carefully, as employing TAOS for any service implies that you have read and accepted our Terms and Conditions.
Please carefully read, review and be sure you understand our Terms and Conditions prior to employing TAOS in any way.
TAOS reserves the right to change or modify current Terms and Conditions with no prior notice. Changes to Terms and Conditions will be updated to this page. It is recommended that you regularly review this page.
(a) You may engage us to carry out a Project for you by:
- Signing and returning a Purchase Order to us;
- Accepting a Quote in writing; or
- Giving us written, emailed or verbal authorisation to commence a Project.
(b) Unless we notify you otherwise, we will accept that engagement subject to these terms and conditions. The Project will commence when we accept the engagement.
2. HOURS OF SERVICE
(a) All support activity is carried out between 9:00am and 5:00pm (EST), Monday to Friday excluding public holidays and office closures times for standard Australia public holidays and the Christmas / New Year closure periods.
(b) After hours contact and services are available on request or in the case of an emergency and subject to additional fees as follows;
- Saturday Work: 1.5 x Professional Rate plus GST or other applicable taxes.
- Sunday or Public Holiday Work: 2 x Professional Rate plus GST or other applicable taxes.
3. QUOTES AND ESTIMATES
(a) If we provide, or have provided, you with a Quote for the Project, then that Quote:
- Is based on the Specifications, and is subject to change if the parties agree to amend the Specifications;
- Does not include GST; and
- Is valid for a period of 30 days from the date we issue the Quote.
(b) Acceptance in writing via email, acceptance online via the quoting portal and or payment of a deposit or engagement invoice is considered acceptance of the quote.
(c) When you accept a quote with TAOS you are also agreeing to our terms and conditions.
4. PRICE, PAYMENT & INCREASES
(a) At TAOS’s sole discretion the Price shall be either:
- TAOS’s quoted Price (subject to clause 3.2) which shall be binding for thirty (30) days.
- If the Fees are not specified (in a Purchase Order, Quote or otherwise) at the commencement of the Project, then we will charge you at the Professional Rates for all work that we carry out for you in the course of the Project.
(b) TAOS reserves the right to change the Price in the event of a variation to TAOS’s quotation.
(c) At TAOS’s sole discretion a 50% non refundable deposit may be required.
(d) At TAOS’s sole discretion:
- payment in full or part may be required prior to commencement
- payment shall be due on delivery of the goods/service; or
- payment for approved Clients shall be made by instalments in accordance with TAOS’s payment schedule.
(e) 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 seven (7) days following the date of the invoice.
(f) Payment can be made by cash, credit card, paypal, by cheque, by bank cheque, or by direct deposit, or by any other method as agreed to between the Client and TAOS.
(g) For subscription services, including maintenance programs, email marketing, extension and connector subscriptions, an annual fee increase of 5% of the fee is applicable on the commencement of the second year and will increase at the same % on the anniversary of each year thereafter.
(h) An annual review of the Professional Rates is conducted and where applicable is takes affect at the beginning of each new financial year (1 July). Notification of any increase in rates is provided in writing 30 days prior.
(a) Unless we expressly state otherwise, the Fees and Additional Costs do not include GST.
(b) If at any time we decide that GST is payable on supplies made by us, or if the Australian Taxation Office assesses GST on any such supplies, then the necessary amount will be added to, and form part of, the Fees or Additional Charges (as the case may be) at the GST rate prevailing at the relevant time.
(c) we reserve the right to recover from you at any time such an amount on account of GST on supplies made by us to you under this agreement.
6. DEFAULT & CONSEQUENCES OF DEFAULT
(a) If any account remains overdue after seven (7) days, a fee of $10 (to cover administrative expenses and not as a penalty) shall be charged per reminder for overdue payment submitted to the Client. TAOS shall be entitled to submit such reminders on a weekly basis once the fees have become overdue.
(b) In the event of overdue payment, interest shall accrue on the invoice amount at the rate of 2.5 per cent per calendar month and such interest shall compound monthly.
(c) Late payment shall be considered as constituting a material breach of the Contract entitling TAOS (at its discretion) to suspend or cancel services and assert the usual remedies for breach.
(d) TAOS expressly reserves all rights at all times to bring any legal action it considers appropriate to recover any unpaid sums.
7. SUSPENSION AND OR CANCELLATION OF SERVICES
(a) TAOS reserves the right to suspend/cancel any or all services provided in any case where the Client fails to perform their obligations under this and any associated agreements. TAOS reserves the right to suspend/cancel any or all services provided to you, if:–
- You have any outstanding invoices or accounts where an amount payable is overdue by more than 7 days;
- Your account is in dispute or the subject of a dispute resolution procedure, court order, judgment, finding or determination;
- If you have made no contact with TAOS office for a period of more than 1 month after the project and or any design work has commenced.
- You fail to comply with any provision of these terms and conditions or any other policy, directive or requirement notified to you by TAOS.
(b) Where possible, TAOS may be able to reinstate a project after suspension of services, this will incur costs and TAOS reserves the right to requote the entire project. These Additional Costs may be based upon a percentage of the original Quote, interest and administration of any overdue payments and or a retrieval fee.
(c) In any such event, you remain liable for the total cost of the contract including all disbursements; unless otherwise agreed between the parties. Furthermore, TAOS will not refund ( in part or in whole) any deposits received for the commencement of work, under any circumstances unless agreed firstly in writing by TAOS.
(d) TAOS reserves the right to keep all funds from the deposit if work on a job has commenced and is terminated by either party. TAOS shall not be liable for any loss or damage whatever arising from such cancellation.
8. Professional Liability
(a) If you are not a Consumer:
- Our liability to you for any Loss, however caused (including by our negligence), suffered or incurred by you in connection with this agreement, whether or not you were aware of the possibility of such Loss to you when this agreement was entered into, is limited to the amount of Fees received by us from you under this agreement;
- The maximum amount you may claim from us for Loss suffered or incurred by you in connection with this agreement is limited to the aggregate amount of Fees which you have paid us at any time, less any amounts already paid out or due to be paid out by us to you for any reason; and
- We are not liable for any
- Indirect or consequential loss, or any loss of revenue, loss of profit, loss of business opportunity, or
- Payment of liquidated sums, penalties or damages under any agreement sustained by you or any other
- Person arising from or in connection with the Project or this agreement;
- Loss you suffer or incur by in connection with this agreement that is caused by (or to the extent contributed to by) the acts or omissions of a third party; or
- Loss you suffer or incur due to factors outside our reasonable control.
(b) If you are a Consumer, our liability to you for failure to apply with any applicable Consumer Guarantee is limited to (at our election):
- In relation to goods:
- Replacing the goods or supplying equivalent goods (or paying the cost of either); or
- Repairing the goods, or paying the cost of having the goods repaired;
- In relation to services:
- Resupplying the services to you; or
- Paying the cost of having the services re-supplied.
(c) If you are a Consumer, our liability to you for all Loss, however caused (including by our negligence), suffered or incurred by you in connection with this agreement, other than a failure by us to comply with any applicable Consumer Guarantee, is limited as set out in paragraph (a) above.
(d) Paragraphs (b) and (c) do not apply:
- In relation to a Title Guarantee;
- To the extent that it is not Fair or Reasonable for us to rely on them; or
- In relation to Consumer Goods or Consumer Services we supply to you.
(e) Any condition or warranty which would be implied by law as a term of this agreement is excluded.
(a) TAOS retains the right to display work created by our studio in our portfolio, and for the purpose of marketing or advertising our services on or offline.
(b) All work supplied by TAOS is believed to constitute original work, and is prepared in good faith that it does not infringe the rights of any other party. TAOS cannot provide an absolute guarantee that any specific works do not infringe upon existing third-party rights, inadvertently, by coincidence or otherwise.
(c) TAOS is unable to guarantee that any work supplied to the Client is suitable for any particular purpose and would strongly recommend that the Client conduct relevant research prior to the approval of any prepared work.
(d) All preliminary work and materials produced by TAOS for the purposes of developing any work remain the sole property of TAOS (excluding and incorporated materials supplied by the Client). Any unauthorised usage of materials produced by TAOS will be actively pursued through legal channels.
(e) By approving any final work whether verbally or in writing, the Client assumes the responsibility for the subsequent usage of the chosen work. TAOS retains the right to re-use any original material that does not form part of any final approved work.
(f) The Client agrees that they may not claim to be the designer or showcase TAOS’s work in their portfolio and claim it to be their own.
(g) TAOS cannot take responsibility for any copyright or privacy infringements caused by materials submitted by the Client and may refuse use of any such material unless proof of permission is provided.
(h) Any design, copyrighting, drawing, illustration, concept or code created for the Client by TAOS, is licensed to the client on a one-time only basis and may not be modified, re-used or re-distributed in any way or form without the express written consent of TAOS. In the event of multiple proposed designs being submitted to you the client for selection, the one design selected is deemed by TAOS as fulfilling the contract. All other designs remain the property of TAOS.
(a) Until full payment has been received by TAOS the title to all products shall remain vested in TAOS and shall not pass to the client.
(a) TAOS warrants that if any defect in any workmanship of the services provided by TAOS becomes apparent and is reported to TAOS within 28 days of the date of delivery (time being of the essence) then TAOS will either (at TAOS’s sole discretion) replace or remedy the workmanship.
(b) The conditions applicable to the warranty given by clause are:
- the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
- failure on the part of the Client to properly maintain any Goods; or
- failure on the part of the Client to properly maintain
- failure on the part of the Client to follow any instructions or guidelines provided by TAOS; or
- any use of any Goods otherwise than for any application specified on a quote or order form; or
- the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
- fair wear and tear, any accident or act of God.
(c) the warranty shall cease and TAOS shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without TAOS’s consent.
(d) in respect of all claims TAOS shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
(e) All website projects delivered by TAOS are covered by a 28 day warranty period. Details found at https://www.taoscreative.com.au/terms-and-conditions/#handover-warranty-and-disclaimer
12. CLIENT DISCLAIMER
(a) The Client hereby disclaims any right to rescind, or cancel any contract with TAOS or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by TAOS and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgement.
(a) We will promptly notify each other in writing of any dispute in connection with our Agreement.
(b) Upon the written notification of a dispute, the client and TAOS shall use our best endeavours to resolve the dispute in good faith, and expeditiously.
(c) If the dispute has still not been resolved within 10 Business Days, the client and TAOS will use our best endeavours in good faith to within a further 5 Business Days agree upon an alternative dispute resolution process (such as mediation, arbitration, conciliation, or expert determination) to resolve the dispute, and shall in good faith implement that alternative dispute resolution process.
(d) Neither the client nor TAOS may commence legal proceedings against the other until the client and TAOS have complied with the above dispute clauses.
(a) 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.
(b) TAOS 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 TAOS of these terms and conditions.
(c) In the event of any breach of this contract by TAOS the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
(d) 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 TAOS.
(e) TAOS may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
(f) TAOS 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 TAOS updates this page.
(g) Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
(h) The failure by TAOS to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect TAOS‘s right to subsequently enforce that provision.
15. GOVERNING LAW
(a) Our Agreement is governed by and to be construed according to the law of New South Wales.
(b) You and We irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales.
In this agreement:
(a) A reference to “this agreement ” means these terms and conditions (including any schedule) together with a Purchase Order or Quote (if any);
(b) Headings and bold type are for convenience only and do not affect the interpretation of these terms;
(c) The singular includes the plural and the plural includes the singular;
(d) Words of any gender include all genders;
(e) Other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning, unless the context clearly requires otherwise;
(f) An expression importing a person includes any company, partnership, joint venture, association, corporation or other body corporate and any government agency as well as an individual;
(g) A reference to any legislation includes all delegated legislation made under it, and amendments, consolidations, replacements or re-enactments of any of them;
(h) A reference to a party to a document includes that party’s successors and permitted assignees;
(i) A promise on the part of 2 or more persons binds them jointly and severally;
(j) No provision of this agreement will be construed adversely to a party because that party was responsible for the preparation of this agreement or that provision; and
(k) Specifying anything in this agreement after the words “include ” or “for example ” or similar expressions does not limit what else is included.
TAOS, TAOS Creative or TAOS Digital shall mean TAOS Digital Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of TAOS Digital Pty Ltd.
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 TAOS to the Client.
Guarantor means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
Goods shall mean Goods supplied by TAOS 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 TAOS to the Client.
Moral Rights are defined in section 189 of the Copyright Act 1968 (Cth), and includes any similar rights in any jurisdiction outside Australia.
Project means, in relation to any work that we do for you:
(a) the project described in a Purchase Order;
(b) if there is no Purchase Order, the project described in a Quote;
(c) if there is no Quote, then the project described in the Specifications; or
(d) if there are no Specifications, then the work that you have asked us to do.
Project Intellectual Property means designs, artwork, software and materials provided to you in the course of the Project, and any other Intellectual Property Rights created in the course of the Project, but does not include:
(a) any Open Source Content Management System and other third parties;
(b) the Website Tools (except to the extent that we have modified them); or
(c) Client Content.
Price shall mean the price payable for the Goods as agreed between TAOS and the Client in accordance with clause 3 of this contract.
Professional Rates means the fees set out for an individual project or ongoing rates for service.
Quote means a quote, estimate or proposal that we provide to you in respect of any work that you have asked us to do.
Schedule of Fees means the professional services rates agreed to for an individual project or ongoing rates for service.
SEO means Search Engine Optimisation – the art and science of increasing the visibility of web pages in searches using search engines on the web.
Services means all Services supplied by TAOS to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
Social Media means web based tools such as Facebook, LinkedIn, Twitter…
Support means the supply of paid support services to assist in the management; maintenance; training for; and repair of a TAOS supplied/built/maintained solution.
Website means the website that we develop for you.
18. PRODUCT AND SERVICE SPECIFIC TERMS AND CONDITIONS
(a) Additional terms and conditions relevant to specific products and services are to be read and agreed to in conjunction with these terms and conditions.
(b) All additional terms and conditions can be found on the website https://www.taoscreative.com.au/terms-and-conditions/
19. CUSTOMER AGREES
(a) The Customer has read and understood these terms and agrees to be bound by same.