Interesting By Default Pty Ltd

Terms and Conditions

Dear valued clients

 

1. Project Scope

All projects shall be completed in accordance with the Project Scope in the accompanying documents to these Terms and Conditions. Any services falling outside of the Project Scope may incur additional costs on a time and materials basis.

 

2. Completion of Project

Interesting By Default warrants completing the Project in accordance with these Terms and Conditions to the specifIcations agreed with the Client and the Project Scope. Interesting By Default will not charge more than the amount previously agreed unless the Client has varied the specifIcations and Project Scope since the agreement. Interesting By Default will not undertake changes to the specifications of the Project that would increase the cost, without prior written authorisation from the Client. In addition, where a Project falls outside the Project Scope, any additional costs will be notifIed and agreement required before commencement on the associated Project.

 

3. Supply of Materials

The Client will supply materials and information required for Interesting By Default to complete the Project in accordance with the agreed specifIcations and Project Scope. Such materials may include, but are not limited to, photographs, written-copy, logos, marketing content and other printed materials. Where the Client's failure to supply such materials leads to a delay in completion of the Project, Interesting By Default has the right to extend previously agreed deadlines and cost for the completion of the Project by a reasonable amount.

 

4. Limit of Quote

  1. Quotes in Australian Dollars (AUD) - All provided quotes in AUD are valid for 14 days from their issue date.
  2. Quotes in Other Currencies - All provided quotes in other currencies are valid for 14 days from their issue date.

Interesting By Default is not bound to honour quotes that have expired. Quotes are not legally binding until an acceptable timetable for the Project has been agreed by both parties.

 

5. Approval of Project

On completion of the Project, the Client will be notified and have the opportunity to review it. The Client should notify Interesting By Default, in writing, of any unsatisfactory points within 7 days of receipt of such notification. Any part of the Project that has not been reported in writing to Interesting By Default as unsatisfactory within the 7 day review period will be deemed to have been approved. Once approved, or deemed approved, the Project cannot subsequently be rejected, and the contract will be deemed to have been completed and the remaining balancing payment indicated in the clause below entitled “Payment” Fee will become due. The Contract will remain in effect until all obligations have been completed. For those projects that have payments terms spread out over the project lifetime and specifIed in the Project Scope and Delivery Schedule and have completion of milestones attached, such payments are required within 14 days from the issue date of completion of those milestones. Notwithstanding any of the above, where a project is delayed by the client, an invoice for services outstanding to date will be issued and is payable within 14 days from the issue date. All relevant payment details are available on all invoices. All payments in currencies other than Australian Dollars (AUD) must be paid by their due date. Where failure to do so, results in a lesser amount being due to Interesting By Default on account of exchange rate currency fluctuations, the amount will be re-calculated and adjusted so that Interesting By Default is not disadvantaged.

 

6. Rejected Project

If the Client rejects the Project within the 7 day review period, or will not approve subsequent work or actions performed by Interesting By Default to remedy any points reported by the Client as unsatisfactory, and Interesting By Default considers that the Client is unreasonable in their repeated rejection of the Project, the contract will be deemed to have expired and Interesting By Default can take any legal measures to recover both payment for the completed Project and reasonable expenses incurred in recovering payment.

 

7. Maintenance Grace Period

A one month warranty from the project completion date is given that covers all errors. Some minor changes are also covered at the discretion of Interesting By Default. Changes or Amendments to the Project at the request of the Client, Interesting By Default is committed to providing excellent customer service and encourages input from the Client during the project lifetime. Interesting By Default recognises however that Clients may request signifIcant changes. In this regard, the following applies:

  1. Design Changes - Design change requests after design is signed-off and signifIcant design changes that were not part of the initial brief and agreement and design changes requested after the design component of the budget has been exhausted are out of scope and may incur additional charges at the discretion of Interesting By Default.
  2. Functional Changes - Functional change requests that are not part of the initial Project Scope may incur additional charges at thediscretion of Interesting By Default.

 

8. Payments

Unless specifIcally noted in the Agreement attached to these Terms and Conditions, payment terms for services rendered by Interesting By Default are:

  1. 50% deposit on acceptance prior to commencement of Project and the 50% remaining balance on satisfactory completion of the Project, to be paid within 14 days from the issue date.

  2. Where a Project is defined as time and materials or ad-hoc work, it will be charged at our hourly rate (plus GST) specified in your Agreement. Work during weekends will always be charged at our standard hourly rate and invoiced fortnightly unless agreed otherwise.

 

9. Remedies for Overdue Payment

If payment has not been received by the due date, Interesting By Default has the right to suspend ongoing work for the Client, until such time that full payment of the outstanding balance has been received and Interesting By Default has the right to charge the Client a late payment fee. If full payment has still not been received 21 days after the due date, Interesting By Default has the right to replace, modify or remove the website/work produced and revoke the Client's licence of the Project until full payment has been received. By revoking the Client's licence of the Project or removing the website from the Internet or removing access to shared work and work produced, Interesting By Default does not remove the Client's obligation to pay any outstanding monies owing.

 

10. Administrative Privacy

All assets and material associated with a project are treated as confIdential and are not made available to anyone other than staff of Interesting By Default and contractors associated with the project and the Client. If the Client has any problems, they must notify Interesting By Default in writing with details of the problem(s).

 

11. Assets

All assets, including any intellectual property owned by the Client and created in relation to the project will be archived by Interesting By Default. Interesting By Default will use its best endeavours to retain these assets and make them available to the Client upon request.

 

12. Standards

Interesting By Default Pty Ltd aims to provide the highest standard of professional services and is focussed on the needs and concerns of our clients. If the Client is dissatisfied with the level of service provided, the Client should immediately contact Amanda Woo, on 0416 929 865 or by email to amandawoo@interestingbydefault.com to raise matters of concern.

If matters of concern are not raised within 14 days of the occurrence Interesting By Default Pty Ltd cannot be held responsible for fees incurred for services beyond the 14 day time frame.

 

13. Working Standards

It is anticipated that a reasonable working environment will be provided for our consultants, including suitable work space. In the event that such an environment cannot be provided, work may be undertaken in Interesting By Default Pty Ltd’s office at Interesting By Default Pty Ltd's sole election.

 

14. Restraint

You agree that you will not solicit or entice or engage an employee of Interesting By Default Pty Ltd to perform any work for you in any manner unless Interesting By Default Pty Ltd's prior written approval has been obtained and a recruitment fee equal to 50% of the market rate annual salary is paid.

You agree that a recruitment fee of 50% of the market rate annual salary will be paid to Interesting By Default Pty Ltd should you directly or indirectly employ or engage the services of a Interesting By Default Pty Ltd employee within 12 months following their resignation from Interesting By Default Pty Ltd. For a period of 12 months following the cancellation of our services you agree you will not hire, use or engage any person previously referred to you by Interesting By Default Pty Ltd without paying the one off referral fee of 50% of their market salary.

 

15. Cancellation Fee and Minimum Hours

The minimum engagement time for any Consulting visit is 4 hours. If for any reason an appointment is cancelled with less than 24 hours notice, a cancellation fee equal to the minimum charge of 4 hours work will be payable.

 

16. Privacy

Interesting By Default Pty Ltd must comply with the National Privacy Principles contained in the Privacy Act 1988.  Interesting By Default Pty Ltd collects personal information for the purpose of providing its services.

 

17. Indemnity

The Client irrevocably indemnifies Interesting By Default Pty Ltd and each of its officers, employees, agents and advisers (each an Indemnified Party), and must keep Interesting By Default Pty Ltd and each Indemnified Party indemnified against any and all liability, damages, claims and loss directly or indirectly arising from, and all costs, charges and expenses arising in connection with:

(a) the Agreement, the work to be performed under the Agreement (Work)  or any matter or activity referred to or contemplated by the Agreement;

(b) any breach or failure by the Client to observe any of the terms and conditions of the Agreement;

(c) any claim that Interesting By Default Pty Ltd has liability for under any law in relation to the Work; or

(d) any review or investigation undertaken by any regulatory authority as a result of an alleged or actual failure to comply with the conditions and requirements of any law or regulation.

This indemnity will not apply to the extent that such liability and loss are determined by a court of competent jurisdiction (where all appeals have been exhausted) to have been the direct result of Interesting By Default Pty Ltd's or an Indemnified Party's gross negligence or wilful misconduct. The reference to costs and expenses includes, but is not limited to, a reference to legal costs and expenses on a solicitor and own client basis.

Any approval or consent given by Interesting By Default Pty Ltd does not waive or prejudice the right of an Indemnified Party to the indemnity in these terms and conditions and such rights survive the expiry or termination of the Agreement. The Client agrees that Interesting By Default Pty Ltd holds the benefit of this indemnity on trust for itself and all other Indemnified Parties.

Interesting By Default Pty Ltd disclaims all responsibility, whether to the Client, any related body corporate of the Client or third parties, for all claims arising out of advice given by Interesting By Default Pty Ltd based upon information provided to Interesting By Default Pty Ltd by the Client or third parties which is or becomes misleading, inaccurate or incomplete. Neither Interesting By Default Pty Ltd nor any Indemnified Party shall have any liability to the Client, any related body corporate of the Client or to third parties in connection with this Agreement except for liability that is finally judicially determined (after all appeals have been exhausted) to have directly resulted from Interesting By Default Pty Ltd's or an Indemnified Party's gross negligence or wilful misconduct.

If for any reason the above indemnities are unavailable at law or are otherwise unavailable or insufficient to hold Interesting By Default Pty Ltd or any Indemnified Party harmless against any losses which that party is stated to be indemnified for, the respective proportional contribution of the Client and Interesting By Default Pty Ltd / the Indemnified Party in relation to the relevant loss will be as agreed, or failing agreement, as determined by a court of competent jurisdiction having regard to the participation or involvement of the Client and Interesting By Default Pty Ltd / the Indemnified Party in the act complained of. In no event will Interesting By Default Pty Ltd / the Indemnified Party be required to contribute to losses which in aggregate exceed the fees paid to Interesting By Default Pty Ltd in the 3 month period preceding the claim under the Agreement.

 

18. Conduct of proceedings

Where any legal or other proceedings arise and the Client confirms in writing that Interesting By Default Pty Ltd / the Indemnified Party is indemnified pursuant to these terms and conditions, then the Client is entitled to defend or institute legal or other proceedings at the Client's cost, in the name of Interesting By Default Pty Ltd / the Indemnified Party and conduct those proceedings under the management and control of the Client (with reasonable consultation with Interesting By Default Pty Ltd / the Indemnified Party), provided that neither the Client nor Interesting By Default Pty Ltd  has the power to settle, compromise, consent to early judgment in or otherwise seek to terminate any action, suit, proceeding, investigation or claim in respect of which indemnification has or may be sought under these terms and conditions without the prior written consent of the other, which must not be unreasonably withheld, and such settlement, compromise, consent or termination shall include a release of Interesting By Default Pty Ltd / the Indemnified Party from any liabilities arising out of such action, suit, proceeding, investigation or claim.

 

19. Limitation of Liability

This provision does not exclude, restrict or modify the application of any provision of the Australian Consumer Law (whether applied as law of the Commonwealth or any State or Territory of Australia). Subject to this, where our total fees do not exceed $5,000 (exclusive of GST and disbursements) in relation to a particular service, our liability:

  • for any failure to comply with any consumer guarantee in respect of the supply of our services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption is limited, at our sole discretion, to:

    • the resupply of the services again; or

    • the payment of the cost of having the services supplied again; and

  • for any loss or damage suffered as a result of our engagement which otherwise arises, whether in tort (including negligence), contract or otherwise, must not exceed a total of 1 times the total fees received by us in relation to the matter to which the liability arises (exclusive of GST and disbursements).

In consideration for Interesting By Default Pty Ltd entering into this Agreement, you agree to the maximum extent permitted by law:

  • to release Interesting By Default Pty Ltd and each other Interesting By Default Pty Ltd entity from all claims arising in connection with your matter to the extent our liability in respect of those claims exceeds the above limits; and

  • to the extent that any loss or damage suffered by you is attributable to fault, negligence or lack of care on your part or on the part of any person for whom you are responsible, Interesting By Default Pty Ltd and each Interesting By Default Pty Ltd entity is not liable (in tort, including negligence, contract or otherwise) for the loss or damage, (each a Release).

Interesting By Default Pty Ltd enters into this Agreement as agent for each Interesting By Default Pty Ltd entity (as well as in its own capacity) and, despite the fact that each other Interesting By Default Pty Ltd entity is not a party to the Agreement, Interesting By Default Pty Ltd may enforce each Release as agent for, and for the benefit of, each other Interesting By Default Pty Ltd entity.

Last updated: April 1, 2015

If you need more information regarding our Terms and Conditions, please contact us at info@interestingbydefault.com.