1.1 These Terms and Conditions apply to all goods and/or services from time to time provided by TGM Creative (“us/we/our”) to the purchaser of those goods and services (“you/your”).
1.2 All and any amendments to the Terms and Conditions contained herein must be provided in writing by you and signed by an authorised representative of TGM Creative prior to the acceptance of a job by us in accordance with clause 2.1 of these Terms and Conditions.
ORDERING AND ACCEPTANCE
2.1 Any quotation provided by us is not an offer and is incapable of acceptance. If you provide us with a request to perform a job in accordance with a quotation, we may accept such request and any such acceptance will form a binding contract incorporating the terms of the relevant quotation (except to the extent we advise otherwise) and these terms and conditions.
PRICE AND TIMEFRAMES
3.1 Any quotation provided is dependent on information provided by you to us. We reserve the right to charge more than the quoted amount for couriers, tolls or extra material required and also where the final differs from that anticipated (which by way of example only, maybe where you have not informed us of all relevant circumstances, there are delays outside of our control, or where your requirements change).
3.2 If we incur any costs (including, by way of example only, labour and printing costs) due to incorrect information that you have provided, or your failing to report any errors and proofs we provide to you for checking before we commence final printing, we will be entitled to include such costs in any invoice we issue.
3.3 If you require a job to be completed in the timeframe that we consider to be a quick-turnaround, we may charge a quick-turnaround rate of 20% on top of normal charges and/or any quoted amount. We will determine when and if this quick-turnaround rate applies in accordance with the specific requirements of each individual job. We will notify you if we determine the job will be subject to this quick-turnaround rate.
3.4 If we are unable to complete a job on the time due to circumstances out of our reasonable control, we will give you notice of the cause and likely time of the delay and, provided we complete the job within a reasonable time (taking into account the nature and extent of the relevant cause of the delay), we will deemed to have fully discharge our obligations to you.
SUSPENDED WORK ON YOUR INSTRUCTIONS
4.1 If you request that we cease work on a job, we will be entitled to immediately cease work on that job and issue an invoice for the full agreed fee and for any other costs/fees in accordance with these terms and conditions.
APPROVAL OF GOODS AND/OR SERVICES
5.1 You will be deemed to be satisfied with any goods and/or services that we supply to you unless you advise us in writing within 10 days (if clause 9.1 below applies), or a reasonable time (if clause 10.0 below does not apply), of us supplying the relevant goods and/or services.
5.2 If you advise us within the times contained in clause 5.1 or 10.1 (as applicable to you) that you are not satisfied with any goods and/or services that we have supplied to you, we will remedy the relevant goods and/or services (which you return to us at your expenses, if required) within a reasonable time on the basis of the job previously agreed between you and us. If you request that the goods and/or services be varied otherwise and in accordance with the job previously agreed between you and us, we may choose not to perform such work or we may submit a quotation for our costs to perform such work.
6.1 All fees must be paid prior to the supply of final artwork or on completion of the job, unless you apply for a credit account to be opened with us prior to our commencing work and we accept that application. We may accept or decline a credit account application at our sole option and, if we accept such application, we may cancel any credit account held with us at any time.
6.2 If you hold a credit account with us, we will issue you with invoices for our work (which may include monthly, interim invoices) and you must pay such invoices by the 20th day of the month following the date of the relevant invoice (each such date a “payment date”), time being of the essence.
6.3 If any invoice amount is not paid by the relevant payment date:
a. That part of the invoice amount that remains unpaid will attract interest at 16% per annum calculated daily from the relevant payment date until the invoice amount is paid in full;
b. You will pay us a $10.00 administration fee and reimburse any additional costs incurred by us including, by way of example only, any legal costs on a solicitor/client basis) in enforcing our rights in respect of payment;
c.We may cease work, and hold any work, on any job we may have agreed to perform for you (whether related to the relevant invoice or otherwise).
6.4 On payment of all then unpaid invoiced amounts, you will have the right to use the goods and/or services supplied by us to you for the purpose of your business (this does not include any goods and/or services that you have rejected). Your rights are personal to you and unless we agree in writing otherwise, incapable of being signed, licensed or otherwise, used for the benefit of any other party.
OWNERSHIP AND INTELLECTUAL PROPERTY
7.1 We retain full ownership of design concepts, artwork, proofs and materials we produce for you. Once a final concept is delivered to you and full payment is received by us, complete ownership rights to the concept transfers to you. Any unused concepts or materials remain the property of us. We retain the right, and you agree and acknowledge that we, may still use paid-for concepts in our promotional materials, marketing and advising and in our design portfolio. Unless you request otherwise, we retain the right to display a small byline claiming design credit on works we produce.
7.2 This granting of copyright does not extend to the use of designed proposals and concepts submitted to but not approved for the job quoted. Until final payment we retain ownership of all artworks, designs, logos, trademarks and website architecture. We reserve the rights to certain elements used to create your projects including RAW files, fonts, patterns, stock images, textures, colour pallets and other non-exclusive items.
7.3 We reserve the right to use stock images and the creation of designs if required. Costs of this will be outlined to you prior to the purchase if not included in the original quotes.
7.4 If you supply us with any drawings, sketches, designs or specifications, you warrant that our use of the same will not infringe the rights of any personal entity and you indemnify us for any costs, expenses, damages or liabilities incurred by us arising directly or indirectly from any breach of such warranty.
WEBSITE DESIGN CREDIT
8.1 You agree to allow us to place a small credit on printed material exhibition displays, advertisement and/or a graphic design of us on your website if we have designed your website. This will be in the form of small logo or line of text placed towards the bottom of the web page.
8.2 You also agree to allow us to place websites and other designs, along with a link to your website on our own website for promotional purposes.
CONSUMER GUARANTEES ACT 1993
9.1 If you are requiring any goods and/or services from us for the purposes of a business, or if you are holding yourselves out as acquiring any goods and/or services from us for the purchase of a business, you agree that the implied guarantees in the Consumer Guarantees Act 1993 will not apply to the relevant goods and/or services supplied by us to you.
10.1 We only support technologies for browsers and computer settings that are current at the time of development. We accept no responsibility if technology changes and the products or services provided by us to you is no longer accessible.
CONFIDENTIALITY & PRIVACY
11.1 We reserve the right to disclose to potential and existing customers of ours your finished work for marketing purposes unless otherwise specified to us by you in writing. We agree to protect your confidentiality and to ensure your business is protected from competitive or otherwise influences when disclosing any material produced on behalf of or for you to our prospective or existing customers.
11.2 All jobs completed by us are backed up either physically onto CD, USB or SD or electronically via cloud based providers (device type storage at our discretion) and are stored by us for future use by the client. We will take all reasonable care to ensure all backed up jobs are safely stored but we will not be liable for the loss of backed up jobs through natural disaster, fire, flood, theft, loss of cloud storage via computer virus, hacking or change in policy of the cloud storage provider. We recommend that you purchase an electronic copy of all completed jobs for future use.
11.3 You have the right to request from us a copy of the information about you retained by us (if any such information is retained) and the right to request us to correct any incorrect information about you held by us.
11.4 A search fee may be charged if you ask us to endeavour to locate and supply files and/ or information (which we have no obligation to keep, and which we may or may not in fact keep) after a job has been completed. This fee is payable even if we are unable to locate the file or information sought.
12.1 Our liability to you in respect of any goods and/or services is limited, so far as allowable by law, to the amount we have received from you for the relevant goods and/or services that are the direct cause of the proven liability.
13.1 No guarantee shall be given or implied that the goods and/or services supplied by us to you in accordance with your instructions or designed by us to those instructions are suitable for specific market requirements unless those are documented and/or form part of the original quotation.
13.2 You specifically acknowledge that graphic design, strategy, photography, illustration and marketing are all highly creative and subjective art forms. As such we endeavour to take every possible care with professional advice offered and any suggested creative concepts and/or their implementation, however we cannot be held responsible for variations between expectation and outcome.
14.2 If a dispute arises between us and you concerning this agreement, neither us nor you may start proceedings relating to the dispute without first complying with the provisions of this clause.
a. A party claiming that a dispute has arisen concerning these terms and conditions must give written notice to the other party specifying the matter in dispute;
b. After a party has given notice under clause a above, each party must nominate one person who will have authority to settle the dispute. The nominated persons must try in good faith to resolve the dispute within 10 working days;
c. If the dispute is not resolved under clause b above, then any party may at any time in the next two working days appoint a mediator to enable the parties to mediate and settle the dispute;
d. If the dispute is not resolved under clause c above within a further 20 working days after the appointment of a mediator, any party may then require the dispute to be referred to arbitration and may be determined in accordance with the Arbitration Act 1996.