Terms & Condition

GRAPHIC DESIGN TERMS & CONDITIONS

Below are Digimall Pty Ltd (throughout this document will be referred to as Digimall) standard terms and conditions. It is vital that you (The Client) please take time to read through thoroughly and ensure you fully understand these terms and conditions and their implications before you commence any project with DIGIMALL. Please also note that from time to time DIGIMALL may need to alter these terms and conditions without notice. Please contact us if you do not understand any of the terms and conditions in this document.

Commencement of work

Agreement to work with, and submission of a design brief and payment of deposit to DIGIMALL constitutes agreement to these terms and conditions.

Payment Terms

“The Client” agrees to pay a 50% deposit of the quoted amount to commence any design project, with the balance payable prior to delivery. Once research, resources allocated or design work has commenced on a project, this deposit is non-refundable. In the case of a change of mind by “The Client” this deposit is non-refundable. DIGIMALL endeavours to provide design services that meet and exceed a client’s needs and expectations, but in the event of a “change of mind” (after a project has commenced) by “The Client”, the initial 50% deposit is forfeited, plus a prorata payment based upon the time spent.

If the work time exceeds 4 calendar weeks in duration, “The Client”agrees to a progress payment of 50% of the balance per month until the conclusion of the project, with any outstanding amount payable in full upon delivery.

All printing accounts must be settled in full prior to the release of the files to the printer. Accounts which are not paid COD will incur a late administration fee of $20 + GST. Accounts which remain outstanding for 14 days after the date of invoice will incur an additional late payment fee equivalent to 5% of the project costs for each week payment is outstanding. If you are having difficulty paying your invoice, please get in touch as soon as you are aware of the issue, so we can discuss a solution that works for your company.

Design samples

“The Client”also agrees to allow DIGIMALL to showcase any/all work created in the course of a project as part of DIGIMALL portfolio. DIGIMALL acknowledges the confidential nature of projects and agrees to only display project work once product/site has been publicly launched/commences.

Force Majeure

DIGIMALL shall not be liable for any failure or delay in supply or delivery of products/services where such failure or delay is wholly or partly due to any cause or circumstances whatsoever outside the reasonable control of DIGIMALL. Including but not limited to war, natural disasters, strikes, lockouts, industrial disputes or unrest, government restrictions or transport delays, fire, power outages, failure attributable to hosting suppliers, breakdown of plant, theft, vandalism, riots, civil commotions, accidents of any kind or act of terrorism.

Fees for service

It is agreed that the fee for service shall be the cost estimates provided via email, unless work undertaken exceeds work outlined. If work undertaken exceeds the items specified in the quote, “The Client” agrees to pay appropriate fees for the excess work, outside the scope of the original agreement. Where ever possible the client will be notified of increases in the scope of the project.

Excess work

This is defined as any work involving additions to the list of items defined in the Estimate of Services or changes to all pieces of finished artwork after sign off by an authorised representative of “The Client”. From time to time “The Client” will require extra design requirements during a project, or extra files upon completion of a project. The client will be informed that the alterations or changes requested fall outside the scope of the original estimate. If the client wishes these alterations to be made they must agree in writing, and a fee of $150 (plus GST if applicable) per hour will be payable.

Should additional design not initially quoted for be requested during the design process, a progress payment will be payable prior to further work being carried out. Otherwise, all additional costs will be added to the final invoice, payable prior to delivery of design files.

Publication and/or release of work performed on behalf of the client by “DIGIMALL” may not take place before cleared funds have been received.

Any booking fees, delivery fees, design commencement fees, or progress payments are non-refundable once work has commenced if the contract is terminated by the client, after work has commenced.

Liability & Litigation

It is agreed that all work and materials provided for “The Client”by “DIGIMALL” will be free and clear of all liens and encumbrances and may be lawfully used by “The Client” without infringing upon the rights of others including, and without limiting the generality of the foregoing, any copyright trade secret patent or trade mark rights of any third party.

It is agreed that “DIGIMALL” indemnify and hold “The Client” harmless from and against all claims for injury or death to persons or damage to property (including cost of litigation and legal fees) caused by, arising from or incidental to the services to be performed during the performance of the work outlined, except any such claims which are caused by the negligence of “The Client” or its employees, and it is agreed that we shall notify “The Client” in writing of full details of any such claim.

Under no circumstances shall DIGIMALL be liable to “The Client” for an indirect or consequential loss suffered by “The Client” relying on the information included in the supplies prepared by DIGIMALL including (without limitation) loss of profit, loss of contracts or pure economic loss. Any liability is strictly limited to the direct losses associated with remedial costs of the supplies only, not to include claims for delays, out of sequence working, non productive overtime, award of costs, etc. Liability to any third party for any reason is specifically excluded unless separately agreed in writing.

Approval of Final Artwork

While DIGIMALL takes all care to avoid errors, DIGIMALL accepts no responsibility for typographical errors, spelling mistakes, or incorrect information on any project committed to print or production. It is the “Client” responsibility to proof read and approve all final copy before the production of artwork. The email verification of the Client’s representative shall be conclusive as to the approval of all artwork prior to their release for printing, implementation or installation. No refunds or reprints are given after a final approved design has gone to print due oversights by “The Client’s” proof reading.

Print Returns And Refunds

It is agreed that the DIGIMALL is not responsible or held liable for any errors contained in the final product after the final product has been approved by the client, (approval may be given in writing), committed to print or posted in view of the public. DIGIMALL will not be held responsible for and changes or amendment made after approval. It is the sole responsibility of the client to notify DIGIMALL of any such errors during the revision cycle and before the final files have been generated.

In the event of a need to reprint due to errors in content, the client must inform DIGIMALL within 3 days of product acceptance, and must return the product (at the cost of the client) within 10 days of acceptance for assessment.

As with all print projects, payment for re-printed project MUST be prepaid.

Print – Colour Variations

With all printing there may be some colour variations from what you have seen on screen to what the final product looks like and previous orders. This is due to the nature of CMYK printing and bulk-run printing system. There will be no reprints at the expense of DIGIMALL.

Copyright

DIGIMALL retains full ownership of design concepts and materials it produces. Unused concepts remain the property of DIGIMALL. DIGIMALL may still use paid-for concepts in its promotional materials and in its design portfolio. Unless the client requests otherwise, DIGIMALL Studio retains the right to display a small byline claiming design credit on works it produces, except for corporate stationery.

This granting of copyright does not extend to the use of design proposals and concepts submitted to but not approved for the work outlined. DIGIMALL reserve the rights to certain elements used to create your projects including RAW files, fonts, patterns, stock images, textures, colour palettes and other non exclusive items.

DIGIMALL reserve the right to use stock images in the creation of designs if required. Costs of this will be outlined to the client prior to purchase if not included in the proposal quote.

Other than for the promotional use of DIGIMALL all services provided shall be for the exclusive use of the client’s said purposes only. Designs may not be used for other promotional items, website or printed materials without permission. Upon payment of all invoices, reproduction rights for all approved final designs created by DIGIMALL shall be outlined in the Project Proposal. For additional usage, price will be assessed as needed.

In accordance with the Australian Copyright Act (1968), ‘licensing of copyright is subject to a mutual agreement made between client and designer’. Copyright will remain property of DIGIMALL till such time an agreement is in place. As part of DIGIMALL terms of business, the copyright licence is belong DIGIMALL. reserve the right to use all artwork produced, concepts produced in the course of the project (including those concepts not selected) and revisions for the purposes of promoting DIGIMALL in print or digital media portfolios, social media and blogs, except where the client has specifically requested in writing otherwise.

Goodwill

This proposal assumes goodwill from both DIGIMALL and “The Client” regarding:

• What can reasonably be achieved in a given time frame
• Making best use of resources to achieve the most effective outcomes

Resending Uploading Files

If a client losed or accidentally deletes the files delivered by DIGIMALL at the completion of the project, DIGIMALL can reupload to Drop Box, for a fee of $50 per request (plus GST). Providing the request from the “Client” has been made within 2 years from the date of completion.

Artwork on DVD or USB Drive

If any client artwork is required on CD/DVD, an administration fee of approximately – $50 plus courier/ postage will be payable.

Website design credit

“The Client” agrees to allow “DIGIMALL Graphic Design” to place a small credit on printed material exhibition displays, advertisements and/or a DIGIMALL Graphic on the “Client” website. This will be in the form of a small logo or line of text placed towards the bottom of the page.

“The Client” also agrees to allow “DIGIMALL Graphic Design Studio” to place websites and other designs, along with a link to the client’s site on “DIGIMALL Graphic Design Studio’s” own website for self promotional purposes.

International Work

Some of DIGIMALL clients come from outside Australia. Being a niche market we are global specialists in the field of feminine graphic and web design and as such create work across the world, using contemporary communication methods such as Skype, Drop Box, Hightail, email and chat, along with the more traditional devices such as telephone.

Termination policy

From time to time circumstances beyond the control of either party may result in the need for project cancellation. In the event of the client cancelling a project after a project has commenced, the advance payment (deposit) will be forfeited in lieu of compensation to DIGIMALL. This is to cover design and administration time spent, resources purchased and allocated, research time and administration costs. If the project is more than 50% completed (this is determined by DIGIMALL and the client by negotiation) a prorata payment is payable for time spent up until cancellation notice, at an hourly rate of $150 per hour plus GST.

If a project is cancelled by DIGIMALL, due to unforseen circumstances, the deposit will be refunded in full to the client in a timely manner.

In the event of cancellation of the project by the client, ownership of all copyrights and the original artwork and disks shall be returned and retained by the DIGIMALL.

Website design post- completion alterations

Once web design is complete,”DIGIMALL” will provide the customer with the opportunity to review the resulting work. “DIGIMALL” will make one set of minor changes at no extra cost within 14 days of the start of the review period. Minor changes include small textual changes and small adjustments to placement of items on the page. It does not include changes to images, colour schemes or any navigation features. Any minor changes can be notified to “DIGIMALL” by e-mail and confirmed by post. ”DIGIMALL” will consider that the client has accepted the original draft, if no notification of changes is received in writing from the customer, within 14 days of the start of the review period. An hourly fee after this time for tweak and amendments is payable of $150 per hour plus GST if applicable.

Confidentiality

It is agreed that employees of “DIGIMALL” shall not at any time either during the continuance of the work outlined or thereafter, except in the course of their duties, divulge any of the confidential affairs of “The Client” or any of its clients or associated companies to anyone whatsoever without the previous consent in writing of “The Client”.

Late payments & Default

Accounts which are not paid within 15 days will incur a late administration fee of $20 + GST. Accounts which remain outstanding for 30 days after the date of invoice will incur an additional late payment fee equivalent to 5% of the project costs for each week payment is outstanding.

An account shall be considered in default if it remains unpaid for 30 days from the date of invoice or “the client” has stated expressly that they do not intend to pay an invoice by “DIGIMALL”, unless prior arrangements have been made. “DIGIMALL” shall at it’s sole discretion suspend any and all services provided to the client by “DIGIMALL” or it’s subsidiaries (including but not limited to hosting, websites designed files, concepts, artwork, and email) and employ debt collection measures until the total outstanding balance has been fully paid. This includes any and all unpaid accounts due for services ordered, including, but not limited to design, hosting, domain registration, search engine submission, maintenance, sub-contractors, printers, photographers and libraries plus bank interest calculated daily for each day payment is overdue.

Suspension of such services does not relieve the client of it’s obligation to pay the due amount. Files on external servers, such as hosted e-commerce solutions will be removed and held until payment is made or for 30 days until the client has paid for their invoices in full.

“The Client” whose account is in default agree to pay “DIGIMALL” reasonable legal expenses and third party collection agency fees in the enforcement of these Terms and Conditions.

“DIGIMALL” retains all copyright for work performed.

“DIGIMALL” accepts no liability or responsibility for loss of income or damage to the client for work removed from third party servers, as a result of non-payment and “The Client” will not take legal action for any situation arising from invoice disputes or removal of the disputed work in such cases

Amendments to these Terms and Conditions

All and any amendments to the terms and conditions outlined in this submission must be provided in writing by “The Client”and signed by an authorised representative of “DIGIMALL” prior to the commencement of work outlined in this submission.

Freelance contractors and confidentiality

All contractors employed by “DIGIMALL” are held to a strict confidentiality and nondisclosure agreement. Contractors of “DIGIMALL” are also bound by a strictly enforced non-solicitation agreement for a period of 36 months after the conclusion of their work with “DIGIMALL”. If this was to be breached by the contractor “DIGIMALL” will take swift and reparatory measures to ensure “The Client” is made aware that the contractor in question is no longer a representative of “DIGIMALL” and acting independently.

Furthermore the unlawful contractor will be prosecuted through legal channels to the full extent of the law in such cases.

“DIGIMALL” aim for complete security of our clients and if we select contractors it is based upon previous work, references, and global checks with previous employers, as well as compliance with strict “DIGIMALL” guidelines of professional behaviour and ethics.

Disclaimer

Graphic design, strategy, photography, TVC, illustration and marketing are all highly creative and subjective art forms. As such DIGIMALL take every possible care with professional advice offered and any suggested creative concepts and/or their implementation, however DIGIMALL cannot be held responsible for variations between expectation and outcome.

Disclaimer

All information contained in this website is intended for general information purposes only. The information is provided by DIGIMALL. We try to keep the information up-to-date and ensure that it is correct, however, we make no warranties of any kind concerning the accuracy, completeness, suitability, reliability, or availability of the information contained in this website, or any products, services, links, or graphics that may be found on this website. Use this information at your own risk. DIGIMALL will not be held liable for any loss or damage, or loss of data from your use of this website, or in connection with this website. This includes indirect or consequential loss or damage. DIGIMALL has no control over websites that are linked to on this website.

Those third party websites are under the control of their owners, and DIGIMALL will not be held liable for your use of those websites. By linking to these sites, we are not endorsing or recommending any information or views expressed in the content on those sites.

PRINTING TERMS & CONDITIONS

1. Definitions In these Terms of Trade:
   1. “Account” means the Customer’s account with the Vendor.
   2. “Customer” means the person or entity making the application or any person acting with ostensible authority on behalf of the customer.
   3. “Goods” means goods supplied by the Vendor to the Customer at any time.
   4. “Guarantor” means any party executing a Guarantee of the Customer’s Account with the Vendor.
   5. “Order” or “Orders” means the order or orders of the Customer to the Vendor to supply Goods and Services.
   6. “Services” means services supplied by the Vendor to the Customer at any time.
   7. “Vendor” means the DIGIMALL.
2. Orders
   1. Orders will be on such forms as the Vendor may require from time to time.
3. Acceptance
   1. Each Order shall constitute acceptance by the Customer of these Terms and Conditions of Trade.
4. Price variation
   1. Price estimates are based on the Vendor’s current costs of production and, unless otherwise agreed, are subject to amendment on or at any time after acceptance, where such amendment is required in order to meet any rise or fall in such costs.
5. Preliminary work
   1. All work carried out, whether experimentally or otherwise, at customer’s request shall be chargeable.
6. Copy
   1. Where any additional work of whatever nature is necessary as a result of copy supplied by a customer not being clear and/or legible, the Vendor shall be entitled to make additional charges on a time and materials basis to cover such additional work.
7. Proofs
   1. Proofs of all work may be submitted for customer’s approval and the Vendor shall incur no liability for any errors not corrected by the customer in proofs so submitted. Additional charges shall be made for any additional proofs that are required as a result of alterations required by the customer. When style, type or layout is left to the Vendor’s discretion, any subsequent changes to such style, type or layout required by the customer shall be subject to additional charges on a time and materials basis.
8. Copyright
   1. Unless negotiated and agreed in writing, the copyright of general artwork, commissioned artwork and illustrations and anything else whatsoever prepared, developed or created by the Vendor shall vest in and belong to the Vendor. The Vendor may use any artwork or printing produced by itself for the purposes of promoting itself and/or DIGIMALL. The customer shall be responsible for obtaining all necessary authorities and consents to reproduce pictures, artwork, photographs, copyright text and/or any other reproducible materials (”Materials”) prior to instructing the Vendor to reproduce the same. The customer shall indemnify and hold the Vendor and its agents and representatives harmless against all claims, demands, actions, costs, expenses (including but not limited to legal costs and disbursements), losses and damages arising from or suffered or incurred by reason of any claim (including but not limited to the defence of such claim) that the reproduction of the Materials by the Vendor infringes the intellectual property or other rights of any third party or misuses the confidential information of a third party.
   2. All design, text, illustrations, graphics, photographs, diagrams, drawings, logos and the selection and arrangement thereof, and all source code and all other material content of any Website owned, controlled or operated by DIGIMALL and DIGIMALL Buying Guide and DIGIMALL Marketing Collateral are the intellectual property of DIGIMALL or its content providers and as between DIGIMALL and the customer all intellectual property rights (including all copyright) arising out of or connected with such content shall belong to DIGIMALL. No reproduction of any part is allowed without written permission.
9. Delivery and payment
   1. Turnaround is measured in Working Days. For orders made on a Guaranteed Turnaround service (being orders guaranteed to be ready within a certain period (the “Guaranteed Period”)), delivery (as more particularly described in paragraph 9(b) below) will be made no later than 5pm on the last Working Day of the Guaranteed Period. Should the Vendor fail to deliver within the Guaranteed Period (see also paragraph 10 Variations in quantity), a service ‘credit’ will be awarded up to the value of the order in question (redeemable against future orders within 6 months of issue of the Credit in question) (the “Credit”). The customer will still be obliged to pay in full for the order in respect of which delivery was late, including any of the sums charged specifically for the provision of the Guaranteed Turnaround Service (”the Premium Charges”). Where the late delivery is as the result of the action or inaction of a third party, such as a carrier, the Vendor, at their absolute discretion, may elect to extend the Turnaround by one Working Day and the customer shall not be awarded a Credit during this time. In addition:
   2. These services rely on the customer not delaying the progress of the order in any way (which delays include but are not limited to the customer not returning proofs by the time specified by the Vendor or failing to make payment by the time such payment is due) (a “Customer Delay”). In the event of a Customer Delay the customer shall not be awarded a Credit and the customer shall still be obliged to pay the Premium Charges but the Vendor shall not be bound to deliver within the Guaranteed Period.
   3. Delivery of work by the Vendor shall be deemed to take place upon collection of the work by the customer (where the customer is obliged to collect the work) or (where the Vendor is obliged to deliver the work) actual delivery of the work to the customer by the Vendor. Where the customer is obliged to collect the work, customer’s failure to collect the work on the day on which the Vendor is contractually obliged to have it ready for collection shall be classed as a Customer Delay. Where the Vendor is obliged to deliver the work to the customer but the customer provides the Vendor with incomplete or incorrect delivery information or is not available to accept delivery, then provided that the Vendor has used reasonable endeavours to deliver the work to the customer, a failed delivery shall be classed as a Customer Delay.
   4. Unless otherwise specified the price quoted is for collection of the work from the Vendor or the DIGIMALL. A charge may be made to cover any extra costs involved for delivery to a different address.
   5. Should expedited delivery be agreed the Vendor shall be entitled to make additional charges on a time and materials basis to cover any overtime or any other additional costs involved, including without limitation, the cost of couriers or special delivery post.
   6. Should work be suspended at the request of or delayed through any default of the customer for a period of 30 days or more the Vendor shall then be entitled to payment for work already carried out, materials specially ordered and other additional costs including storage.
   7. Risk of loss or damage to work completed by the Vendor shall pass to the customer on delivery. Notwithstanding delivery and the passing of risk in the work to the customer, ownership of and title to the work shall not pass to the customer and shall be retained by the Vendor until the Vendor has received payment in full in respect of the work.
   8. In the unlikely event that the Vendor deems it necessary to re-print work, the Guaranteed Period shall recommence from the time of the Vendor’s confirmation to the customer of its agreement to reprint the work.
   9. Unless otherwise specified, payment for all Goods and Services shall be made no later than:

      (i) on completion for non account Customers;

      (ii) the 20th day of the month following invoice for account Customers.

   10. The Vendor may, at its sole discretion, require payment of a deposit by the Customer prior to processing any Order.
   11. An administration fee may be charged on all overdue amounts in addition to any other charges pursuant to this clause.
   12. Interest will accrue on all amounts overdue at the rate of 2.5% per month and will be calculated on a day by day basis until payment is made in full.
   13. All costs of or incurred by the Vendor as a result of a default by the Customer including but not limited to administration charges, debt collection costs and legal costs as between solicitor and client shall be payable by the Customer.
   14. If the Customer defaults in any payment or commits any act of bankruptcy or any act which would render it liable to be wound up or if a resolution is passed or proceedings are filed for the winding up of the Customer or if a receiver is appointed for all or any assets of the Customer, the Vendor may cancel any Order without prejudice to any other rights it may have and payment for all completed Orders shall immediately become due.
10. Liability
    1. The Vendor’s liability to the Customer shall be limited to the value of the Order supplied.
11. Claims
    1. Advice of damage, delay or partial loss of goods in transit or of non-delivery must be given in writing to the Vendor and the carrier within three clear days of delivery (or, in the case of non-delivery within 28 days of despatch of the goods) and any claim in respect thereof must be made in writing to the Vendor and the carrier within seven clear days of delivery (or, in the case of non-delivery, within 42 days of despatch). All other claims must be made in writing to the Vendor within 28 days of delivery. The Vendor shall not be liable in respect of any claim unless the aforementioned requirements have been complied with except in any particular case where the customer proves that (i) it was not possible to comply with the requirements and (ii) advice (where required) was given and the claim made as soon as reasonably possible.Customer’s property

    The customer’s property and all property supplied to the Vendor by or on behalf of the customer shall while it is in the possession of the Vendor or in transit to or from the customer be deemed to be at the customer’s risk unless otherwise agreed and the customer should insure such property accordingly. Where a customer fails to collect work within 20 working days from notification to the customer of completion of the work, the Vendor shall be entitled, at its discretion, to either store the work until actual delivery or collection is made and charge the customer for the costs (including insurance) of storage or to destroy such work (provided that the customer shall nevertheless remain liable for payment in respect of the relevant order).

12. Materials supplied by the customer
    1. The Vendor may reject any paper, plates or other materials supplied or specified by the customer which it considers to be unsuitable. Additional cost incurred if materials are found to be unsuitable during production may be charged except that if the whole or any part of such additional cost could have been avoided but for unreasonable delay by the Vendor in ascertaining the unsuitability of the materials then that amount shall not be charged to the customer.The Vendor shall have no liability in respect of any work being of less than reasonably satisfactory quality as a result of defects in or the unsuitability of materials supplied or specified by the customer.The Vendor shall assume that quantities of materials supplied shall be adequate to cover normal spoilage accordingly if the quantities of materials supplied are not sufficient to cover normal spoilage (”an Insufficient Supply”) then the Vendor shall have no liability for any shortfall in quantity to the extent that such shortfall arises as a result of such Insufficient Supply.
13. Customer’s property
    1. 1. The customer’s property and all property supplied to the Vendor by or on behalf of the customer shall while it is in the possession of the Vendor or in transit to or from the customer be deemed to be at the customer’s risk unless otherwise agreed and the customer should insure such property accordingly. Where a customer fails to collect work within 20 working days from notification to the customer of completion of the work, the Vendor shall be entitled, at its discretion, to either store the work until actual delivery or collection is made and charge the customer for the costs (including insurance) of storage or to destroy such work (provided that the customer shall nevertheless remain liable for payment in respect of the relevant order).
    2. Illegal matter
       1. The Vendor shall not be required to print any matter which in its opinion is or may be of an illegal or libellous nature or an infringement of the proprietary or other rights or any third party. Without prejudice to paragraph 7 above, the customer shall indemnify and hold the Vendor harmless against all claims, demands, costs, expenses (including but not limited to legal costs and disbursements), losses and damages arising from or suffered or incurred by reason of the work it is required to produce pursuant to a customer order being or alleged to be defamatory.
    3. Taxes and Duties
       1. Unless expressly included in any quotation given by the Vendor, Goods and Services Tax and other taxes and duties assessed or levies in connection with the supply of the Goods and Services to the Customer are not included in the price and shall be the responsibility of the Customer or, where the payment of such taxes or duties is the responsibility of the Vendor at law, the price shall be increased by the amount of such taxes or duties.

    4. Payment Allocation

       The Vendor may in its discretion allocate any payment received from the Customer towards any invoice that the Vendor determines and may do so at the time of receipt or at any time afterwards. On any default by the Customer the Vendor may reallocate any payments previously received and allocated. In the absence of any payment allocation by the Vendor, payment shall be deemed to be allocated in such manner as preserves the maximum value of the Vendor’s purchase money security interest in the products.

    5. Errors or Omissions

       Clerical errors or omissions, whether in computation or otherwise in the quotation, acknowledgement or invoice shall be subject to correction.

    6. Risk

       From the time of dispatch to the Customer by the Vendor, risk in all Goods supplied shall pass to the Customer and any loss, damage or deterioration to the Goods shall be borne by the Customer. The Customer shall notwithstanding any loss, damage or deterioration to the Goods remain liable to pay for the Goods.
14. Ownership/General Lien
    1. The Vendor shall retain ownership of all Goods supplied until it receives payment in full of all amounts owing by the Customer for all Orders.
    2. If any of the Goods are incorporated in or used as material for other goods before payment is made ownership in the whole of the other goods shall be and remain with the Vendor until payment is made. The Vendor shall have a right to stop and retrieve the Goods in transit whether or not ownership has passed.
    3. Ownership Until payment is made by the Customer, the Customer agrees to:
    4. enable the Goods to be readily identifiable as the property of the Vendor;
    5. hold the Goods as trustee for the Vendor and will deal with the Goods as agent for and on behalf of the Vendor (but will not hold the Customer out as an agent to any third parties);
    6. if the Goods are resold, the proceeds of resale will belong to the Vendor and the Customer shall keep the proceeds of sale in a separate account for which separate records are kept.
15. Merger with Other Goods
    1. If the Goods are attached, fixed or incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party, title in the products and services shall remain with the Vendor until the Customer has made payment for all Goods and where those Goods are mixed with other property so as to be part of or constituent of any new goods title to those new goods shall be deemed to be assigned to the Vendor as security for the full satisfaction by the Customer of the full amount owing by the Customer to the Vendor
16. Export Prohibition
    1. The Goods provided pursuant to these Terms and Conditions of Trade are sold for use in Australia only and are not to be exported elsewhere, directly or indirectly, without prior agreement of the Vendor.
    2. In the event that the Vendor consents to the export of the Goods the Customer is responsible for all costs and compliance with any export regulations in force within the country for which the Goods are destined.
17. Recovery of Goods
    1. In the event of non payment or if payment of the Customer’s Account is overdue the Vendor shall be entitled without prejudice to any right it has at law or in equity to enter the place where the Goods are stored whether at the Customer’s premises or property or the premises or property of a third party for the purpose of recovering and taking possession of the Goods supplied.
    2. The Customer warrants to the Vendor that where the Goods are stored on the premises or property of a third party the Customer is acting as agent for the third party and has the full authority of the third party to authorise entry on to the premises or property of the third party for the purpose of recovering the Goods supplied without releasing the Customer from liability.
    3. The Vendor will not be responsible for any damage reasonably caused in the course of removal of Goods supplied either in the possession of the Customer or a third party and the Customer indemnifies the Vendor to the full extent in respect of damage caused in the course of removal from the property of a third party.
    4. The Vendor may resell the Goods and apply the proceeds towards payment of the Customer’s outstanding Account with the Vendor. Any shortfall will remain the liability of the Customer. The Customer indemnifies the Vendor for all costs and expenses including legal costs as between solicitor and client which the Vendor may incur in recovering the Goods and any monies owed to it
18. Warranties
    1. Unless otherwise specified, the Vendor gives no warranty express or implied as to the quality, description or fitness for any particular purpose of the Goods and Services.
    2. Where applicable, manufacturer’s warranties will attach to the Goods.
    3. Where the Consumer Guarantees Act 1993 applies the Customer shall have all the rights and remedies provided under this Act but no others. The Customer warrants to the Vendor that any Goods and Services supplied by the Vendor under any order with the Vendor are being acquired by the Customer for the purpose of its business and the Consumer Guarantees Act 1993 does not apply to the supply of those Goods and Services
19. Compliance
    1. The Customer shall be solely responsible for obtaining any necessary permits under and for compliance with all legislation, regulations, bylaws or rules having the force of law in connection with the installation operation and provision of the Goods and Services.
20. Cancellation
    1. The Customer shall not be entitled to cancel an Order other than as allowed pursuant to these Terms and Conditions of Trade.
21. Returns
    1. The Customer shall not be entitled to return Goods or cancel an Order other than as allowed pursuant to these Terms and Conditions of Trade.
22. Security Interest
    1. The Customer gives the Vendor a Security Interest in all of the Customer’s present and after acquired property that the Vendor has performed services on or to or in which goods or materials supplied or financed by the Vendor have been attached or incorporated.
23. Authority to Sell Goods and Services Supplied
    1. Not withstanding that title in all Goods and Services is retained by the Vendor, the Customer is authorised to sell the Goods and Services in the ordinary course of business provided that the authority may be removed by written notice if the Vendor considers the credit of the Customer to be unsatisfactory or if the Customer is in default in the performance of its obligations to the Vendor and shall be deemed automatically revoked if the Customer commits any act of bankruptcy or any act which would render it liable to be wound up or if a resolution is passed or proceedings are filed for the winding up of the Customer or a receiver is appointed for all or any assets of the Customer.
24. Security
    1. Without prejudice to such other rights as the Vendor may have pursuant to these Terms and Conditions of Trade, the Vendor reserves the right to request from the Customer such security as the Vendor may from time to time think desirable to secure to the Vendor all sums due to the Vendor and may refuse to supply further Goods and Services to the Customer until such security is given.
25. Liability

    The Vendor’s liability to the Customer shall be limited to the value of the Order supplied.

    1. Except as otherwise provided above the Vendor shall not be liable for any loss or damage of any kind whatsoever, arising from the supply of Goods and Services by the Vendor to the Customer including consequential loss whether suffered or incurred by the Customer or another person and whether in contract or tort (including negligence) or otherwise and irrespective of whether such loss or damage arises directly or indirectly from Goods and Services provided by the Vendor to the Customer.
    2. The Customer shall indemnify the Vendor against all claims and loss of any kind whatsoever however caused or arising and without limiting the generality of the foregoing of this clause whether caused or arising as a result of the negligence of the Vendor or otherwise, brought by any person in connection with any matter, act, omission, or error by the Vendor its agents or employees in connection with the Goods and Services.
26. Suitability of Goods and Services
    1. The Customer must satisfy itself that the Goods and Services as ordered are fit and suitable for the purpose for which they are required. The Vendor makes no warranties or representation and expressly negates any implied or expressed condition that the Goods and Services will be suitable for a particular purpose or use for which the Customer may use them. The Customer accepts all risk and responsibility for consequences arising from the use of the Goods and Services whether singularly or in combination with other Goods and Services.
27. Dimensions and Specifications
    1. Dimensions and specifications contained or referred to in any Order, catalogues, brochure or other publications maintained or issued by the Vendor are estimates only.
    2. Unless otherwise expressly agreed in writing, it is not a condition of these Terms and Conditions of Trade or any Order that the Goods and Services will correspond precisely with such dimensions and specifications and customary tolerances or in the absence of customary tolerances, reasonable tolerances shall be allowed.
28. Electronic Images and/or Files
    1. It is the customers responsibility to retain a copy of any electronic image or file supplied by the customer to the Vendor. The Vendor is not responsible for accidental damage to any electronic material supplied and such material is held at the customer’s risk. The Vendor may charge for any additional translating, editing or programming needed to utilise customer supplied files or images and such charges shall be in addition to the quoted price. Subject to clause 16 the customer’s own electronic records shall remain the property of the customer.
29. Personal Guarantee of Company Directors or Trustees
    1. If the Customer is a Company or Trust, the Director(s) or Trustee(s) signing this contract, in consideration for the Vendor agreeing to supply Goods and Services and grant credit to the Customer at their request, also sign this contract in their personal capacity and jointly and severally personally guarantee as principal debtors to the Vendor the payment of any and all moneys now or hereafter owed by the Customer to the Vendor and indemnify the Vendor against non payment by the Customer. Any personal liability of a signatory hereto shall not exclude the customer in any way whatsoever from the liabilities and obligations contained in these Terms and Conditions of Trade. The signatories and the Customer shall be jointly and severally liable under these Terms and Conditions of Trade and for payment of all sums due hereunder.
30. Assignment
    1. The Customer shall not assign all or any of its rights or obligations under this contract without the written consent of the Vendor.
    2. The Vendor is entitled at any time to assign to any other party all or any part of a debt which is owing to the Vendor.
    3. The Vendor may also assign or subcontract any part of the work which is to be performed under any contract.
    4. In respect of any assignment by the Vendor pursuant to this clause, the Assignee shall be entitled to the full rights of the Vendor.
31. Disputes
    1. In the event of any dispute arising between the Vendor and the Customer, such dispute shall in the first instance be referred to mediation for resolution.
    2. In the event that resolution by mediation is not achieved to the satisfaction of both parties within 30 days of referral to mediation, either party may then take legal action to resolve the dispute.
    3. Nothing in this clause prevents the Vendor from taking legal action to enforce payment of any debt due, nor where required to seek interlocutory or injunctive relief.
32. Notices
    1. All notices required or committed under these Terms of Trade are to be served as provided in sections 353, 359, 360 and 361 of the Property Law Act 2007 and section 387 of the Companies Act 1993, or by facsimile, in which case notice is deemed to be given the day after sending
33. Validity
    1. If any provision of this contract shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
34. Changes of General Terms and Conditions
    1. The Vendor may at any time refuse an order by the Customer or decline to approve any application by the Customer for any reason whatsoever.
    2. The existence of an account by the Customer with the Vendor does not automatically entitle the Customer to credit in the future.
    3. Failure by the Vendor to enforce any of the terms and conditions contained in these Terms and Conditions of Trade shall not be deemed to be a waiver of any of the rights or obligations the Vendor has under these Terms and Conditions of Trade.
    4. The Vendor may from time to time by written notice to the Customer amend, add to or repeal the trading conditions covered by this Agreement or may substitute any fresh trading conditions and such amendment, addition or substitute trading conditions shall be binding on the Customer fourteen days after the date of delivery of the notice.
35. Force Majeure
    1. Neither the Vendor nor the Customer will be liable to the other for any breach of this Agreement by any extraordinary occurrences which are beyond the reasonable control of the party in question.
36. Entire Agreement
    1. These Terms and Conditions of Trade constitute the entire agreement and supersede and extinguish all prior agreements and understandings between the Vendor and the Customer.
37. Other Agreements
    1. If there is inconsistency between these Terms and Conditions of Trade and any order submitted by the Customer or any other arrangement between the Vendor and Customer, these Terms and Conditions of Trade prevail unless otherwise agreed in writing by the parties.
38. Governing Law
    1. These Terms and Conditions of Trade will be interpreted in accordance with and governed by the laws of Australia and the Australia Courts will have exclusive jurisdiction over any dispute in relation to the Goods and Services.

WEBSITE / SOCIAL MEDIA TERMS & CONDITIONS

The following terms and conditions apply to all website development/design and social media services provided by DIGIMALLL to the Client.

1. Acceptance

   It is not necessary for any Client to have signed an acceptance of these terms and conditions for them to apply. If a Client accepts a quote, Quotation/Invoice or any agreement then the Client will be deemed to have satisfied themselves as to the terms applying and have accepted these terms and conditions in full.

   Please read these terms and conditions carefully. Any purchase or use of our services implies that you have read and accepted our terms and conditions.

2. Charges

   Charges for services to be provided by DIGIMALL are defined in the project quotation that the Client receives via e-mail. Quotations are valid for a period of 30 days. DIGIMALL reserves the right to alter or decline to provide a quotation after expiry of the 30 days.

   Unless agreed otherwise with the Client, all website design services require an advance payment of a minimum of thirty three (33) percent of the project quotation total before the work is supplied to the Client for review. A second charge of thirty three (33) percent is required after the development stage, with the remaining thirty three (33) percent of the project quotation total due upon completion of the work, prior to upload to the server or release of materials.

   Payment for services is due by cheque or bank transfer. Cheques should be made payable to DIGIMALL Pty Ltd and sent to DIGIMALL, 328 Magill Rd, Kensington Park SA 5068. Bank details will be made available on invoices.

3. Client Review

   DIGIMALL will provide the Client with an opportunity to review the appearance and content of the website during the design phase and once the overall website development is completed. At the completion of the project, such materials will be deemed to be accepted and approved unless the Client notifies DIGIMALL otherwise within ten (10) days of the date the materials are made available to the Client.

4. Turnaround Time and Content Control

   DIGIMALL will install and publicly post or supply the Client’s website by the date specified in the project proposal, or at date agreed with Client upon DIGIMALL receiving initial payment, unless a delay is specifically requested by the Client and agreed by DIGIMALL.

   In return, the Client agrees to delegate a single individual as a primary contact to aid DIGIMALL with progressing the commission in a satisfactory and expedient manner.

   During the project, DIGIMALL will require the Client to provide website content; text, images, movies and sound files

5. Failure to provide required website content:

   DIGIMALL is a small business, to remain efficient we must ensure that work we have programmed is carried out at the scheduled time. On occasions we may have to reject offers for other work and enquiries to ensure that your work is completed at the time arranged

   This is why we ask that you provide all the required information in advance. On any occasion where progress cannot be made with your website because we have not been given the required information in the agreed time frame, and we are delayed as result, we reserve the right to impose a surcharge of up to 25%. If your project involves Search Engine Optimisation we need the text content for your site in advance so that the SEO can be planned and completed efficiently.

   If you agree to provide us with the required information and subsequently fail to do within one week of project commencement we reserve the right to close the project and the balance remaining becomes payable immediately. Simply put, all the above condition says is do not give us the go ahead to start until you are ready to do so.

   NOTE: Text content should be delivered as a Microsoft Word, email (or similar) document with the pages in the supplied document representing the content of the relevant pages on your website. These pages should have the same titles as the agreed website pages. Contact us if you need clarification on this.

   Using our content management system you are able to keep your content up to date your self.

6. Payment

   Invoices will be provided by DIGIMALL upon completion but before publishing the live website. Invoices are normally sent via email; however, the Client may choose to receive hard copy invoices. Invoices are due upon receipt. Accounts that remain unpaid thirty (30) days after the date of the invoice will be assessed a service charge in the amount of the higher of one and one-half percent (1.5%) or $100 per month of the total amount due.

7. Additional Expenses

   Client agrees to reimburse DIGIMALL for any additional expenses necessary for the completion of the work. Examples would be purchase of special fonts, stock photography etc.

8. Web Browsers

   DIGIMALL makes every effort to ensure websites are designed to be viewed by the majority of visitors. Websites are designed to work with the most popular current browsers (e.g. Firefox, Internet Explorer 8 & 9, Google Chrome, etc.). Client agrees that DIGIMALL cannot guarantee correct functionality with all browser software across different operating systems.

   DIGIMALL cannot accept responsibility for web pages which do not display acceptably in new versions of browsers released after the website have been designed and handed over to the Client. As such, DIGIMALL reserves the right to quote for any work involved in changing the website design or website code for it to work with updated browser software.

9. Default

   Accounts unpaid thirty (30) days after the date of invoice will be considered in default. If the Client in default maintains any information or files on DIGIMALL’s Web space, DIGIMALL will, at its discretion, remove all such material from its web space. DIGIMALL is not responsible for any loss of data incurred due to the removal of the service. Removal of such material does not relieve the Client of the obligation to pay any outstanding charges assessed to the Client’s account. Cheques returned for insufficient funds will be assessed a return charge of $100 and the Client’s account will immediately be considered to be in default until full payment is received. Clients with accounts in default agree to pay DIGIMALL reasonable expenses, including legal fees and costs for collection by third-party agencies, incurred by DIGIMALL in enforcing these Terms and Conditions.

10. Termination

    Termination of services by the Client must be requested in a written notice and will be effective on receipt of such notice. E-mail or telephone requests for termination of services will not be honoured until and unless confirmed in writing. The Client will be invoiced for work completed to the date of first notice of cancellation for payment in full within thirty (30) days.

11. Indemnity

    All DIGIMALL services may be used for lawful purposes only. You agree to indemnify and hold DIGIMALL harmless from any claims resulting from your use of our service that damages you or any other party.

12. Copyright

    The Client retains the copyright to data, files and graphic logos provided by the Client, and grants DIGIMALL the rights to publish and use such material. The Client must obtain permission and rights to use any information or files that are copyrighted by a third party. The Client is further responsible for granting DIGIMALL permission and rights for use of the same and agrees to indemnify and hold harmless DIGIMALL from any and all claims resulting from the Client’s negligence or inability to obtain proper copyright permissions. A contract for website design and/or placement shall be regarded as a guarantee by the Client to DIGIMALL that all such permissions and authorities have been obtained. Evidence of permissions and authorities may be requested.

13. Standard Media Delivery

    Unless otherwise specified in the project quotation, this Agreement assumes that any text will be provided by the Client in electronic format (ASCII text files delivered on floppy disk or via e-mail or FTP) and that all photographs and other graphics will be provided physically in high quality print suitable for scanning or electronically in .gif, .jpeg, .png or .tiff format. Although every reasonable attempt shall be made by DIGIMALL to return to the Client any images or printed material provided for use in creation of the Client’s website, such return cannot be guaranteed.

14. Design Credit

    A link to DIGIMALL will appear in either small type or by a small graphic at the bottom of the Client’s website. If a graphic is used, it will be designed to fit in with the overall site design. If a client requests that the design credit be removed, a nominal fee of 10% of the total development charges will be applied. When total development charges are less than $2000, a fixed fee of $1000 will be applied. The Client also agrees that the website developed for the Client may be presented in DIGIMALL’s portfolio.

15. Access Requirements

    If the Client’s website is to be installed on a third-party server, DIGIMALL must be granted temporary read/write access to the Client’s storage directories which must be accessible via FTP. Depending on the specific nature of the project, other resources might also need to be configured on the server.

16. Post-Placement Alterations

    DIGIMALL cannot accept responsibility for any alterations caused by a third party occurring to the Client’s pages once installed. Such alterations include, but are not limited to additions, modifications or deletions.

17. Domain Names

    DIGIMALL may purchase domain names on behalf of the Client. Payment and renewal of those domain names is the responsibility of the Client. The loss, cancellation or otherwise of the domain brought about by non or late payment is not the responsibility of DIGIMALL. The Client should keep a record of the due dates for payment to ensure that payment is received in good time.

18. General

    These Terms and Conditions supersede all previous representations, understandings or agreements. The Client’s signature below or payment of an advance fee constitutes agreement to and acceptance of these Terms and Conditions. Payment online is an acceptance of our terms and conditions.

19. Social Media Management

    Social Media Marketing and Management is defined as helping a client to promote their products or services through social media channels. DIGIMALL will honour the components of your chosen social media package, providing an agreement to a minimum 3 months contract is served and monthly payments are received in advance. In the event that payment is not received on time, we regret that further work will be halted until this is rectified.

20. Governing Law

    This Agreement shall be governed by Australia Law.

21. Liability

    DIGIMALL hereby excludes itself, its Employees and or Agents from all and any liability from:

    • Loss or damage caused by any inaccuracy;
    • Loss or damage caused by omission;
    • Loss or damage caused by delay or error, whether the result of negligence or other cause in the production of the web site;
    • Loss or damage to clients’ artwork/photos, supplied for the site. Immaterial whether the loss or damage results from negligence or otherwise.

    The entire liability of DIGIMALL to the Client in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the charges paid for the Services under this Agreement in respect of which the breach has arisen.

22. Severability

    In the event any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired and the Agreement shall not be void for this reason alone. Such invalid, illegal or unenforceable provision shall be replaced by a mutually acceptable valid, legal and enforceable provision, which comes closest to the intention of the parties underlying the invalid.