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.’
1.1 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
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.
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.
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
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.