1. PROVISION OF SERVICES

1.1 GRINDSTONE CREATIVE Pty Ltd, mailing address: Suite 4 / 5 Villamanta Place, Geelong West, VIC 3218 – ABN 61 051 896 372 (“GRINDSTONE CREATIVE”) has agreed to provide you with the Services and Deliverables set out in your confirmed written or verbal acceptance of our proposal or quotation.

1. “Services” means the services you have engaged GRINDSTONE CREATIVE to perform as agreed in the proposal or quotation which may include, without limitation, the following services:
   1. graphic design;
   2. consulting;
   3. web hosting;
   4. digital development; and
   5. content services.
2. “Deliverables” means the output delivered by GRINDSTONE CREATIVE as a result of the Services.

1.2 These terms apply to any proposal or quotation you have accepted under clause 1.1.
1.3 These terms together with an accepted proposal or quotation form an agreement between you and GRINDSTONE CREATIVE (“Agreement”).
1.4 These terms cover the full range of Services that GRINDSTONE CREATIVE can provide to you. The specific Services GRINDSTONE CREATIVE are providing to you under this Agreement are set out in our quotation or proposal as updated or modified from time to time.
1.5 References in these terms and conditions to any particular Services applies to the extent that GRINDSTONE CREATIVE agreed to provide that Service to you.
1.6 Only those services specified will be provided by GRINDSTONE CREATIVE and any amendments, add ons or changes must be agreed in writing or verbally and may incur additional costs. We will endeavour to provide you with a quotation for additional costs in advance.
1.7 GRINDSTONE CREATIVE may engage subcontractors to provide the Services.

2. COSTS AND PAYMENTS

2.1 In consideration for GRINDSTONE CREATIVE agreeing to provide the Services, or Deliverables, you agree to pay all fees set out in our proposal or quotation. All fees are subject to change without notice. Any project disbursements such as delivery fees will be charged in addition.
2.2 The agreed fees are conditional on you supplying all information required for a project stage or completion deadline in a timely way. This includes but is not limited to data, copy, images, other file types or any other information requested by GRINDSTONE CREATIVE. GRINDSTONE CREATIVE reserves the right to revise the fees if that condition is not met.
2.3 GRINDSTONE CREATIVE reserves the right to charge additional urgency fees for turnaround within 3 working days.
2.4 If requested by GRINDSTONE CREATIVE as part of the proposal or quotation, a 30% deposit must be paid for all projects prior to GRINDSTONE CREATIVE commencing the Services. The deposit is non-refundable.
2.5 Work may be invoiced in stages, and all accounts must be paid within 30 days of invoice.
2.6 Print and production management is charged at 10% of the total print costs; liaison with an ISP, external hosting provider, domain registrant or any other third party may be charged at our standard hourly rate.
2.7 You must pay GRINDSTONE CREATIVE’S charges without any set off, counter claim or deduction unless agreed in writing.
2.8 You will remain liable for all fees during any period when Services have been discontinued or suspended due to a failure on your part to comply with these terms and conditions.

3. LIMITATION OF LIABILITY

3.1 To the extent permitted by law, all terms, conditions, warranties, undertakings, inducements and representations, whether express or implied, statutory or otherwise relating to the provision of services by GRINDSTONE CREATIVE not contained in these terms are excluded and GRINDSTONE CREATIVE will not accept liability for any loss or damage (including consequential loss or damage) however caused (whether by negligence or otherwise) which may be suffered or incurred or which may arise directly or indirectly with respect to the Services.
3.2 To the extent that GRINDSTONE CREATIVE is not entitled to exclude a warranty, condition or term then our liability for breach of that warranty, condition or term is limited to either the resupply of the Services or payment of the reasonable costs of having the Services resupplied.
3.3 If GRINDSTONE CREATIVE is found to be liable for any claims, losses, damages, costs or injuries arising out of the provision of the Services, the total liability is strictly limited to the fees already paid by you.
3.4 You acknowledge that any website or digital application developed as part of the Services cannot be guaranteed to be 100% error free in construction and/or 100% secure, and acknowledge that the existence of errors falling short of a complete failure of consideration in the site shall not constitute a reason to terminate this Agreement.

3.5 Any such errors or failures of a website or digital application developed as part of the Services and identified within 1 month post launch will be remedied by GRINDSTONE CREATIVE as part of the original costs except where the errors are caused by factors beyond our control. Issues identified by the client beyond 1 month may be rectified at the client’s expense unless covered by a separate formal maintenance or support agreement.

4. TIME FOR DELIVERY OF THE DELIVERABLES

4.1 You agree that deadlines, milestones and due dates outlined in the proposal or quotation are a guide only and GRINDSTONE CREATIVE will not be liable or responsible for delays in meeting said due dates.
4.2 You accept that due dates may be extended and impacted in the event any of the following occurs:

1. changes to scope of scope of works, requirements, or specifications;
2. non-adherence or delays in reviews, communications, feedback or answers to queries;
3. delays or issues caused by third parties; and
4. any assumptions made by GRINDSTONE CREATIVE at the time of project evaluation and agreement to undertake the project not holding true.

5. DELIVERY AND ACCEPTANCE OF THE DELIVERABLES

5.1 GRINDSTONE CREATIVE will deliver the Deliverables to you upon completion of the Services or as otherwise agreed.
5.2 Subject to clause 12, upon completion of the Services, any final Deliverables will be provided to you and a digital project will be pushed live. GRINDSTONE CREATIVE reserves the right to reclaim any final Deliverables or unpublish a digital project if any final payment owed by you is overdue or not made in accordance with our payment terms.
5.3 Delivery of files (if any) may be made by way of supply of printed copies, on a disk, via email or uploaded to a nominated host.
5.4 Following receipt of the Deliverables, user acceptance testing of the deliverables will be undertaken within 10 working days.
5.5 Feedback from user acceptance testing must be made by the Client in writing in a timely manner.
5.6 Upon completion of user acceptance testing, approval to deploy must be provided to GRINDSTONE CREATIVE in writing, upon which the project is then deemed as complete.

6. SUSPENSION OF SERVICES

6.1 GRINDSTONE CREATIVE reserves the right to suspend Services in any case where you fail to perform your obligations under this agreement. If payment for Services is not received within the terms of payment stipulated by us websites may be unpublished until payment is confirmed.
6.2 GRINDSTONE CREATIVE may from time to time and without notice or liability to you suspend any of the Services if the reason for doing so is an event beyond the reasonable control of GRINDSTONE CREATIVE.

7. TERMINATION

7.1 Either party may terminate this Agreement by written notice to the other party if the other party breaches this Agreement and fails to rectify the breach within 7 days of receiving written notice specifying the breach.
7.2 If the Agreement is terminated under the above clause, you remain liable for the total cost of the contract including all disbursements; unless otherwise agreed between the parties.

8. YOUR WARRANTIES AND UNDERTAKINGS

8.1 To ensure the efficient provision of the Services and Deliverables, you undertake and warrant that you will:

1. undertake any work required as specified in this document;
2. supply required information, assets, content and/or any materials necessary for successful delivery of the project;
3. provide GRINDSTONE CREATIVE with access to resources, including staff, necessary for the successful delivery of the project; and
4. answer queries relating to the project in a prompt and accurate manner.

8.2 You undertake that you are solely responsible for the content of your deliverables. GRINDSTONE CREATIVE is not responsible for proofreading any content unless specifically agreed
8.3 If you provide GRINDSTONE CREATIVE with goods, material, photographs, film, data or information to be used in any form, you hereby warrant that these do not infringe the rights of third parties and indemnify GRINDSTONE CREATIVE against any action taken against GRINDSTONE CREATIVE by any such third party.
8.4 Without limiting the generality of the foregoing, you undertake that any material provided:

1. does not infringe the copyright trademark, privacy or personal or proprietary rights of third parties;
2. is not defamatory of any person;
3. is not libelous, abusive, obscene material, disparage the products or services of any third party; and
4. does not constitute conduct that is in breach of the Competition and Consumer Act 2010 (Cth) or that gives rise to an action in passing off.

8.5 You must ensure that all statements purporting to be facts are true and correct and that no advice or instructions provided to GRINDSTONE CREATIVE will cause loss, damage or injury to them or any other person.
8.6 You are solely responsible for dealing with persons who access your data or webpage and warrant that you will not refer complaints or inquiries in relation to such data to us unless technical support in accordance with clause 9 is otherwise agreed by the parties.
8.7 You indemnify GRINDSTONE CREATIVE against all claims arising from GRINDSTONE CREATIVE’s use of any information or document supplied by you, or for any act or thing done on your instructions or with your approval.

9. TECHNICAL SUPPORT, CHANGES AND MAINTENANCE

9.1 Technical assistance is via GRINDSTONE CREATIVE’s online web support system at http://support.grindstone.com.au. Queries or site maintenance outside a maintenance agreement will be charged at our ‘priority’ hourly rate of $225 + GST. This time will be charged in 15 minute increments.
9.2 Technical assistance on-site will be offered and will be charged at our hourly rate. Transportation fees will also be charged on hourly rate where applicable, otherwise as agreed.
9.3 The cost to upload a content item to a website is $89.50 + GST per item unless otherwise quoted or included. This refers to an item which is loaded to a single page.

10. WEB HOSTING

10.1 If GRINDSTONE CREATIVE is providing you with web hosting services, GRINDSTONE CREATIVE does not guarantee an uninterrupted hosting service. All due care is taken to minimise any down time.
10.2 GRINDSTONE CREATIVE accepts no liability for any security breach that occurs while providing web hosting services to you. Where there is a security breach GRINDSTONE CREATIVE will endeavour, but cannot guarantee, to resolve the breach, secure and restore the site where possible. All work performed under this clause 10.2 is subject to additional fees and charged at our standard hourly rate or at our premium hourly rate for services outside standard business hours.
10.3 GRINDSTONE CREATIVE is not liable for delays or down time, breakdowns or data loss caused by Internet Service Providers (ISPs) or any third party organisations such as hosting providers, domain registrants etc.

11. CONFIDENTIALITY

11.1 Each party agrees not to disclose to any third party anything about this Agreement or its contents unless:

1. it has the prior written consent of the other party;
2. it is required to do so by law; or
3. a third party needs to know the information in order to perform this Agreement.

11.2 In this clause, “confidential information” means facts or knowledge that are not in the public domain, including, but not limited to, information relating to the general business operations of the party.
11.3 The parties agree that as part of the provision of the Services, either party (“the receiving party”) may have access to the other party’s (“the disclosing party”) confidential information.
11.4 The receiving party agrees to maintain the confidential information and prevent its unauthorised disclosure unless or until it is authorised in writing to disclose the information by the disclosing party.
11.5 The receiving party agrees that it must not make improper use of the disclosing party’s confidential information to gain directly or indirectly an advantage for itself or any other party, or cause detriment to the disclosing party.

12. INTELLECTUAL PROPERTY

12.1 Upon completion of the Services, GRINDSTONE CREATIVE will deliver the Deliverables to you in accordance with clause 5.3. Subject to this clause, you own the final product for use, reproduction and dissemination.
12.2 The ownership of all intellectual property in the Deliverables produced by GRINDSTONE CREATIVE remains with GRINDSTONE CREATIVE. In addition, GRINDSTONE CREATIVE retains all intellectual property rights in all draft materials, design copies, design elements working documents, executable files, methodology and rejected designs.
12.3 No intellectual property rights in the Deliverables will be licensed or assigned to you until final payment of any outstanding amounts is made.
12.4 Once final payment is made, GRINDSTONE CREATIVE will grant you a non-exclusive, non-assignable and non-sub-licensable licence in perpetuity to use, reproduce and disseminate final artwork for its intended purpose. This does not include executable files or individual design elements for use beyond the intended purpose.
12.5 If GRINDSTONE CREATIVE is required to use intellectual property owned by a third party as part of the Services (for example fonts), GRINDSTONE CREATIVE does not grant to you a licence to use, reproduce or disseminate that third party intellectual property unless otherwise stated in special conditions, and you will be responsible for obtaining all licences required to use the third party intellectual property.
12.6 If you engage GRINDSTONE CREATIVE to create a brand (for example, the right to sell registration of a trademark under the Trade Marks Act 1995 (Cth) and any copyright in logos or devices), GRINDSTONE CREATIVE will assign all intellectual property rights in that brand to you upon final payment.
12.7 GRINDSTONE CREATIVE retains all the right to use and reproduce the Deliverables for the purpose of advancing the profile of GRINDSTONE CREATIVE and to be recognised for artwork created by GRINDSTONE CREATIVE.
12.8 GRINDSTONE CREATIVE shall be free to reproduce, use, disclose, display exhibit, transmit, perform, create derivative works, and distribute any item unless specifically agreed otherwise. Further, GRINDSTONE CREATIVE shall be free to use any ideas, concepts, knowhow or techniques acquired in the development of the Deliverables or the construction of sites for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products and other items incorporating such information unless specifically agreed otherwise.
12.9 Any files, code, information, original artworks or graphics developed by GRINDSTONE CREATIVE or our contractors including HTML markup, Flash and multi-media including audio and video, still photography database design and development, data collection and web based administration are licensed to the client for use in their own single website. It/they cannot be copied, reused or resold without the written permission of GRINDSTONE CREATIVE.

13. DISPUTE RESOLUTION

13.1 The parties agree that if any dispute should arise under this agreement, attempts in good faith by both parties will be made to resolve the matter fairly before resorting to court procedures.

14. GENERAL

14.1 If any of these terms and conditions (or part of them) is void or unenforceable, it is taken to be removed and no longer forms part of the Agreement between us. The remaining terms and conditions remain in full force and effect.
14.2 This Agreement is governed by the laws of Victoria and the parties submit to the jurisdiction of that State.
14.3 Neither party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other party.
14.4 This Agreement constitutes the sole agreement for GRINDSTONE CREATIVE to deliver services to the client. It supersedes and revokes any other agreement implied or otherwise and forms the basis under which services or deliverables are provided.