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Terms of service.

Please read these Terms of Service carefully, as they contain important information regarding your legal rights and remedies.

These Terms of Service will apply to all services provided by The Produceur Pty Ltd ABN: 89 644 942 496 (‘TP’) and any person or organisation (‘Client’ or ‘you’) that requests the services of TP including via this website www.theproduceur.com (‘TP Site’). You agree that the terms and conditions contained in this document will, in all circumstances prevail over your terms and conditions of purchase (if any).

If the Client is a company or organisation, you warrant that the person providing TP with instructions or information has the ability and authority to enter into this agreement on behalf of the Client. TP and Client are sometimes referred to herein collectively as the ‘parties’ or individually as a ‘party.’

1. Services

1.1 The Produceur Services

TP may, as set out in more detail in the Scope of Work (once agreed) provide you with design, advertising, creative production, print production, web design and/or website hosting and maintenance services. The reference to ‘Services’ below will be taken to mean the services listed in the Scope of Work agreed between TP and you prior to commencement of the Services and any subsequent Variation (as defined below) . The terms ‘Project’, ‘Project Estimate’ ‘Timelines’ ‘Deliverables’ ‘Rounds of Amends’ ’Inclusions & Exclusions’ will be taken to have the meaning set out in the Scope of Work.

In order for TP to prepare the Scope of Work, you agree to provide TP with a brief (‘the Brief’) which will include all of the information requested by TP. In addition to the Brief you agree to provide TP with all information and materials requested by TP relevant to the Project. To the extent that a reasonable person would anticipate that information or material may be relevant to the preparation of a Scope of Work (for example, that your internet running speeds are slow, that you do not own the rights in materials that you propose to use in the Project, details of your hosting and domain providers, or any information that may affect the outcome of the Project that was not requested in the Brief), you will disclose that information or material to TP as soon as it is available to you (whether prior to or after completion of the Scope of Work).

TP may use sub-contractors to provide any Services, in its sole discretion, but will remain liable for the provision of the Services unless specifically stated below or in the Scope of Work.

1.2 Obligations of both parties

You agree to provide all content and material required to complete the Project including text, images and any other information as requested by TP, and in the format requested by TP. You warrant that the rights (including copyright) in all content and material provided by you are either wholly owned by the Client or have been fully cleared and licensed for use in the Project (see also the ‘Copyright’ section below). You indemnify TP for any loss or damage suffered by TP as a result of a breach of this warranty.

You agree to review stages of the Project, provide feedback and provide approvals in a timely manner in accordance with the timelines provided or any amended timelines agreed in writing.

TP will perform the Services in a professional and timely manner, but will not be responsible for missed launch dates or deadlines if materials are supplied late or Project stages have not been approved or signed off on-time.

1.3 Changes & Revisions

The Project Estimate set out in the Scope of Work is based on an estimated number of hours and hourly rate that is required to accomplish the Project to final delivery based on the Brief. If you change the Brief or requirements for the Project, for example, change an overall design, request additional rounds of amends, add extra pages to a website or add new functionality, TP will provide you with a revised Fee Estimate which will include details of the additional work required and any additional fee or charge that will be payable (‘Variation’). If you request that TP continue with the Project (whether verbally or in writing) after provision of a Variation, you will be deemed to have accepted the terms of the Variation and will be obliged to pay the revised fee as set out in the Variation.

2. Web Hosting & Maintenance

2.1 Hosting & Maintenance Platform

If you request website hosting or maintenance services you hereby acknowledge that TP is a reseller of website hosting and maintenance and that TP does not itself provide those services (other than as a reseller) although TP may integrate website hosting and maintenance services as part of the Services. The ‘Client Site’ means a website in relation to which TP has agreed to provide website hosting and maintenance services. TP maintains system backups via a third party that are intended to recover from system failure and which may be used for restoration of files to Client Sites.

2.2 Availability of Client Website

TP’s hosting partner (‘HP’) has agreed the following terms which TP will endeavour to ensure will apply to all Client Sites if applicable. Other than as set out in this provision, TP offers no warranty or guarantee relating to website hosting. HP has agreed that the Client Site shall be accessible to third parties via the Internet twenty-four (24) hours a day, seven (7) days a week, except for scheduled maintenance and required repairs, and except for any loss or interruption of Client Site services due to causes beyond the control of TP or HP or which are not reasonably foreseeable by TP or HP, including, but not limited to, interruption or failure of telecommunication or digital transmission links and Internet slow-downs or failures.

2.3 Additional Storage and Transfer

Client agrees that it will not exceed the bandwidth or storage space limits applicable to the purchased Services as set out in the Scope of Services. In the event that the Client Site exceeds the limits included in the Services, or should Client request or require increased limits, TP will automatically bill Client for any such upgrade in the level of Services, or the additional incremental storage required by Client’s use to be included in the Services, on a time and materials basis and in accordance with the fee schedule set forth in the plan that includes the appropriate storage amounts.

3. License and Proprietary Rights

3.1 Copyright

As between Client and TP, content provided to TP by you (‘Client Content’) shall remain the sole and exclusive property of Client. Client Content includes, all copyright, trade marks, patents, trade secrets, and any other proprietary rights. TP shall have the right to use the Client Content in order to provide the Services. If you want to include third party material (ie., material, the rights in which are not owned by you or TP) such as photographs or other images or footage, then TP may (if agreed in writing) acquire the right (‘Licence’) to use such material from the owner (’Licensor’), but you will be obliged to pay or reimburse all costs of acquiring the Licence , which will be invoiced separately. If TP is engaged to acquire a Licence you will comply with all Licence terms imposed by the Licensor.
On the date that TP has received payment in full for the Services, TP will assign to you all right, title and interest held by TP in the graphics and other visual elements that TP has created for you in relation to the Project. You will also own rights in the text content, photographs and other data you provided, except material the subject of a Licence.

3.2 Files

TP will provide you with a copy of your final files and you should store them really safely as TP is not required to keep them or provide any native source files that TP used in making them. Any working files required will be at a cost to the client, and never inclusive of the project fee.

3.3 Name

You grant TP the right to use Client’s name, trade name and/or trade mark(s) in connection with the marketing and promotion of TP’s business activities. TP reserves the right to display and link to your completed Project as part of its portfolio and to write about the Project on web sites, in magazine articles and in books about design. TP also reserves the right to mark on the Client Site that it has designed and developed your website, with a link to the TP Site.

4. Fees & Taxes

4.1 Payment

All fees shall be paid in Australian Dollars by way of a payment method acceptable to TP. Fees will be as set out in the Scope of Work or any Variation.

Unless stipulated, all fees are exclusive of GST. The Client will pay GST (as applicable) in addition to the fees.

Failure of Client to pay any fee that is due within thirty (30) days after the applicable due date shall be deemed a material breach of this agreement, justifying suspension of the performance of the Services by TP, and will be sufficient cause for immediate termination of this Agreement by TP. Any such suspension or termination does not relieve Client from paying past due fees plus interest at TPs bank base rate plus 2% and in the event of collection enforcement, Client shall be liable for any costs associated with such collection, including, but not limited to, legal costs, attorneys’ fees, court costs and collection agency fees.

TP will retain full ownership of all work including concepts and mockups until full payment is made.

4.2 Website Hosting Services

In the case of website hosting services the fees payable will depend upon the plan selected by the Client as displayed on the TP Site. All payments shall be automatically charged to the payment method provided by Client at the time of purchase (with such payments being charged in advance on a monthly or annual basis, as applicable). TP may, at its sole discretion, suspend or terminate website hosting services without notice if Client fails to provide payment for any period.

TP expressly reserves the right to change the fees charged for website hosting services with advance notice to the Client. If Client does not agree to any such pricing change, it may cancel the Services within thirty (30) days from the date of the notice; otherwise all such changes shall be effective with respect to Client’s account and Client agrees that TP is authorised to charge the increased fee on the next monthly or annual (as applicable) payment cycle.

4.3 Fee Instalments

All fees (other than website hosting fees) will be payable as follows:-

  • 50% non-refundable deposit prior to Project commencement (please note that the Services will not be started until the deposit is paid);
  • 25% when the Project is 75% complete; and
  • 25% when project is completed.

    The Project will be complete when TP has completed all of the tasks listed in the Scope of Work, regardless of whether the required information or materials have been supplied by the Client.

    When a delay is attributable to the Client and through no fault of TP, the Client must make full payment upon receipt of an invoice. After full payment has been made, TP is still responsible to complete the Project as soon as the required information or materials are supplied.

    4.4 Chargeback

    If Client initiates a chargeback with a credit card provider or similar in relation to any payment, Services will be immediately suspended without notice.

    Reestablishment of service following a chargeback or similar action will require sufficient explanation for the action and payment of the disputed charge and any TP’s bank dispute fee.

    5. Confidentiality

    Each party agrees that during the course of this Agreement, information that is confidential or proprietary may be disclosed to the other party, including, but not limited to, software, technical processes and formulas, source codes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, and marketing data (‘Confidential Information’). Confidential Information shall not include information that the receiving party can demonstrate

    (i) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving party;
    (ii) was known to the receiving party as of the time of its disclosure;
    (iii) is independently developed by the receiving party; or
    (iv) is subsequently learned from a third party not under a confidentiality obligation to the providing party. Except as provided for in this Agreement, each party shall not make any disclosure of the Confidential Information to anyone other than its employees who have a need to know in connection with the Project.

    Each party shall notify its employees of their confidentiality obligations with respect to the Confidential Information and shall require its employees to comply with these obligations. The confidentiality obligations of each party and its employees shall survive the expiration or termination of these terms of Service.

    6. Termination

    6.1 Termination of Web Hosting Services

    The term for which web hosting services will be provided shall be determined by either Client’s selection on the TP Site during the order process or by Client’s request to TP to change to a different term. The term shall begin upon the processing of Client’s order, or upon completion of requested changes by TP. Upon completion of the term, Client acknowledges and agrees that the term will renew automatically for successive terms of length equal to the prior term unless Client notifies TP in writing of the Client’s intent to not renew the Services.

    Either party may terminate the web hosting services on thirty (30) days notice in writing to the other party

    6.2 Termination of other Services

    Other than in relation to web hosting services, TP may terminate this agreement at any time and for any reason by providing written notice of termination to Client and refunding a pro rata portion of fees paid to Client for Website Services not yet rendered on the date of termination.

    Other than in relation to web hosting services, Client may terminate this agreement at any time and for any reason by providing written notice of termination to TP and paying all fees due and payable for Services rendered up to and including the date of termination. Client acknowledges that such fees may include fees payable to sub-contractors for work that has been commissioned by TP and for which TP is obliged to pay.

    7. Liability

    7.1. Warranties

    Subject to the Statutory Provisions:
    (a) TP warrants that the Services will be rendered with due care and skill; and (ii) that any product resulting from the Services will be reasonably fit for purpose; and (b) TP’s liability for breach of paragraph (a) or a condition or warranty, including the Statutory Provisions is limited to any one of the following, at the sole discretion of TP:

    (i) the supplying of the Services again; or
    (ii) the payment of the cost of having the services supplied again.

    PROVIDED THAT if the Client fails to notify TP of any defects in the work within 7 days of the completion of the Project, the Client is deemed to have accepted the Services and will pay for the Services in accordance with these Terms of Service.

    7.2 Australian Consumer Law

    The benefit to the Client under this warranty from TP is in addition to those benefits provided by any other law in relation to the Services.

    If the Client is a consumer as defined in section 3 of the Australian Consumer Law, TP provides that:

    Our Services come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to the replacement of the Services or supply of equivalent Services a replacement or refund for a major failure and to compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Services resupplied if the Services fail to be of an acceptable quality and the failure does not amount to a major failure.

    7.3. Limitations on Liability

    TP shall have no liability for any loss or damage suffered by the Client and no responsibility for errors or missed information in material created by TP once it has been signed off or approved by you. If you find errors or missed information after you have signed off or approved material and want TP to correct the material, you will pay all costs (at TPs hourly rate) including (without limitation) production costs and any sub-contractor costs necessary to make the correction. TP shall have no responsibility for and will not be liable for the success or failure of any sales, public relations, advertising or marketing campaign in relation to which TP’s services are engaged hereunder.

    TP shall have no liability with respect to TP’s obligations under this agreement or otherwise for consequential, exemplary, special, incidental, or punitive damages even if TP has been advised of the possibility of such damages. This limitation applies to all causes of action in the aggregate, including, without limitation, to breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts.

    Nothing contained in this clause shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of the Services of all or any of the provisions of the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 or any relevant State or Territory Statute which by law cannot be excluded, restricted or modified PROVIDED THAT to the extent that any such Statute permits TP to limit its liabilities to compensate or indemnify any person for breach of a condition or warranty thereby, then the respective liabilities of TP for such breach shall be limited to the re- supply of the Services or the costs of re-supplying the Services.

    Neither TP nor HP shall have any liability for unauthorized access to, or alteration, theft or destruction of, the Client Site or Clients data files, programs or information through accident, fraudulent means or devices.

    8 Miscellaneous

    8.1 Amendments

    TP may update these Terms of Service from time to time in its sole discretion; the current version may be found at www.theproduceur.com/terms. In the event of any material change, TP will provide written notice to the Client of such change. Client’s continued use of the Services following such updates constitutes Client’s acceptance of the same. If Client does not agree to the terms of any modification, it may terminate this Agreement in accordance with Section 5 (Termination).

    8.3. Force Majeure

    Except for the payment of fees by Client, if the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.

    8.4 Severability

    If any provision of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions.

    8.5 Jurisdiction
    The supply of services under these Terms of Service is governed by the laws of the State of New South Wales. The Parties agree to submit to the jurisdiction of the Courts of that State

    • Last updated: 14th September 2020

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    Operating remotely AEST ★ Privacy Policy + Terms

    © The Produceur 2024 ♡
    Creating for humans who dream big
    Operating remotely AEST
    ★​ Privacy Policy + Terms