In this Agreement, the following words and phrases shall have the following meanings:
Gyrate: means Gyrate Pty Ltd (ACN 121 449 214)
Brand/Branding: is an overall general term used to describe many components of a business' look and feel, essence or influence. The word 'Brand' is the coming together, and roll-out of a recognisable and consistent look. A brand can consist (but not be limited to) a logo, colour palette, fonts, textures, photography, tone of copy and language used to communicate etc. A logo can be part of a brand - please see Logo definition;
Brand Guidelines: is defined as any type of document that contain rules and defines levels of consistency for a brand. The contents may contain guidelines on how to use the following correctly: logo, colour, fonts, sizes, copy tone, photography, imagery, elements etc. It is a document that is passed to suppliers, and internal staff to ensure a level of presentation that is centre point representative of the brand.
Brief: defined as adequate written information, provided by the Client to the Creative, to enable Gyrate to proceed with the the Creative services. Essential information must be provided by the Client including, but not limited to, chosen size, specifications, the scope of work, deadline, timeframe, copy, graphics or instructions. A project can be started before the completed Brief has been delivered - on the provision that when Gyrate requests details, they are delivered, in writing, within Gyrate's requested timeframe. If these requirements (Brief detail) have not been met, or if Gyrate is not satisfied that the Client has not provided enough detail, Gyrate can suspend the Creative Services until the Client's responsibilities of the Brief details are met. If jobs are on a Short Time-Frame or are approaching a deadline and the completed Brief details are withheld (affecting quality and output of the Creative/Advertising Services), the Client is responsible for any delay and associated expenses. It is the Client's responsibility to deliver the details required for completion. Being the 'last in the production line' of a job, it is not Gyrate's responsibility, if a deadline is missed or work is delayed or late;
Brief detail: details and specifics that the Client provides at brief stage. It is beneficial to your project that as much detail as possible is provided in helping the designer get as close to Clients requirements as possible;
Brief interpretation & thought path: is defined as Art Directors, Designers or Writers thoughts on how to deconstruct and approach a Client's brief. The brief interpretation is based on the Creative's imagination, creativity, practicality, budget, trend defiance, longevity and many other contributing factors surrounding the project. Creatives and clients are sometimes going to think very differently about the same problem, as the Creative will have thoughts from a strategic perspective rather than an emotional one. Interpretation is a very big part of design, is part of the process and needs to be paid for;
Brief - Open Brief/Freedom Brief: is defined as a Client leaving an 'open scope' - where the creativity is left up to the Designer / Art Director to solve. Basic specs and a general brief is expected, however all creativity, execution, delivery and thought path is left to the designer. In this scenario The Client would prefer to be guided by the Creative, and so this is an organic process of design;
Brief - Limited Brief: is defined as the Client having providing very minimal details. The Client engages in Gyrate to solve and execute the project given vague detail.
Brief - Client Managed Brief: is defined as the Client providing most, or the majority of the specifications, specifics and having a strong sense of how the project should look and its outcome. The Client may have a set of guidelines, or the job may be quite specific that the project is driven predominately by the Client and its outcome;
Brief - Creative Fulfillment: is defined as the completion of all works to the specifications provided within the initial brief be that an Open, Limited or a Client Managed Brief. The fulfillment of each brief is measured against the criteria (if any) detailed by the Client in the initial brief. Those aspects not originally covered by the brief including the evolution of draft designs submitted will incur a surcharge unless a provision for changes has been allowed for. Gyrate takes no responsibility for any part of the design not specifically outlined within the brief;
Changes: means any amendment(s) made after the initial first (1st) draft;
Claims: means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise);
Client: means the name of the entity described in item 2 of Schedule 1 of the quote agreement;
Commencement Date: means the date described in item 3 of Schedule 1 of the quote agreement;
Completion Date: means the date described in item 4 of Schedule 1 of the quote agreement;
Design: means the creation, thought, process and execution behind a series of the Graphic Design Services including graphics, layouts, typography - to 'create a piece of material';
Creative/Advertising Services: means the services as described in item 5 of Schedule 1 of the quote agreement;
Confidential Information: includes any information marked as confidential and any information received or developed by Gyrate during the term of this Agreement, which is not publicly available and relates to processes, equipment and techniques used by the Client in the course of the Client's business including all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans;
Gyrate's Personnel: means any person(s) that Gyrate designates to perform the Services on Gyrate's behalf;
Facilities: means working space, computer equipment, access to the Internet and the Client's computer network, telecommunications system etc, and shall include not only access to such resources but also use of them to the extent required by Gyrate in order to perform the Creative/Advertising Services;
Fee(s): means the amount or rates described in item 6 of Schedule 1 of the quote agreement;
Final Artwork PDF: is defined as the file that is delivered to the Client as final. This file has been flattened, exported, or compressed in size to create a flat version. This file is different to the Working File - See Copyright section for ownership details;
GST Law: means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Intellectual Property: includes trade marks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former;
Information: includes information whether of a technical, commercial or any other nature provided directly or indirectly in oral, electronic or documentary form or by way of models, biological or chemical materials or other tangible form or by demonstrations and whether before, on or after the date of this Agreement;
Large Advertising or Graphic Design Services: means any work undertaken by Gyrate exceeding the value of $800;
Logo: is defined as a mark, stamp, 'lock-up' or 'holding device' containing a business name and graphic. A logo is used in marketing to visualise and define a business. A logo is part of 'branding', however the two words are very different. Please see Brand definition;
Losses: means all losses including financial losses, damages, legal costs and other expenses of any nature;
Ongoing clients: are Clients that have an ongoing relationship with Gyrate in the sense that they are on an ongoing hourly rate, rather than a 'quote per job' basis;
Packaging: in a design sense is the 'branded' outer shell of a product. Can be in the form of a box, tube, cylinder, bottle, case etc to house a product. Packaging in a full sense of design is labelling the outer form with branding;
Parties: means Gyrate and the Client, and Party shall mean either one of them;
Rate(s): means the Fee chargeable for a particular time period spent in performing the Creative/Advertising Services and as set out in the Specification;
Related Body Corporate: has the meaning given in section 50 of the Corporations Act 2001 (Cth);
Round(s) of Changes: is defined as any set of changes/amends/deviations to the brief emailed to Gyrate by the Client to amend any aspect of the advertising, collateral or design after the first draft (initial PDF of design) has been submitted to the Client;
Stationary: in a design sense is the collective of (but not limited to) branded business card, letterhead, comps slip, envelope, etc. Stationary is defined as the branded pieces needed within an internal office environment;
Substantial Changes / Substantial Round or Amend: means any amendments made after the initial draft exceeding 10 minutes of drafting by Gyrate;
Third Parties: means the engagement of a Third Party (Human Resource) Talent – being a design freelancer, copywriter, web developer or web builder. When a Third Party is engaged as project support or specific Talent to a project – the Third Parties will contract with and bill the client directly - (unless otherwise noted in the Quote Agreement) and otherwise as described in the schedule. Gyrate accepts no liability for the engagement of Third Parties and makes no recommendation regarding Third Party's work or their relationship with Clients. Third parties – are to engage with the Client using their own terms and conditions. Third Parties are only engaged on a project to fulfill areas that Gyrate cannot undertake;
Time-Sheets/Payment and Delivery of Invoice: Creative/Advertising is based on time spent over an hourly rate. A time sheet is kept for each job and reflected on the invoice. Time is clocked and noted on 15 minute intervals. Invoices are delivered to the client. All invoices generated under Gyrate's terms of business are 7 days on date of invoice. Any issues with regards to invoices or invoice delivery should be emailed to firstname.lastname@example.org
Working files: are defined as 'designers files' used to make Client's Final Artwork PDF. Working files are created by such design programs as Indesign, Illustrator, Photoshop (5.1). Working files in the case if Indesign (when collected) consists of a primary file, a related images folder and a fonts folder. Working files can also be defined as 'layered files' or 'editable files' Working files are different to Final Artwork PDF. Please refer to definition of this.
In this Agreement unless the context otherwise requires:
(a) words importing any gender include every gender;
(b) words importing the singular number include the plural number and vice versa;
(c) words importing persons include firms, companies and corporations and vice versa;
(d) reference to number clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this Agreement;
(e) reference in any Schedule to this Agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
(f) any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
(g) the headings to the clauses and schedules of this Agreement are not to affect the interpretation;
(h) any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or bylaw made under that enactment; and
(i) the word "including" (and related forms including "includes") shall be understood as meaning "including without limitation".
3. GRAPHIC DESIGN SERVICES
(a) Gyrate shall provide the Graphic Design Services as the Parties may agree, to the Client in consideration for the Client paying the Fee to Gyrate Pty Ltd, subject to the provisions of this Agreement.
(b) Gyrate and the Client shall agree the time and place for the performance of the Graphic Design Services subject to the availability of Gyrate.
(c) Gyrate shall start providing the Graphic Design Services on the Commencement Date.
(d) The Graphic Design Services shall be provided until Gyrate has completed them, or by the dates agreed by the Parties, or by the Completion Date.
(e) Gyrate shall use reasonable endeavors to complete the Graphic Design Services, including the provision of data, material or reports by the Completion Date or the dates as agreed to by the Parties.
(f) The Graphic Design Services shall be performed by such employees or agents that Gyrate may choose as most appropriate to carry out the Graphic Design Services as agreed, from time to time by the Parties.
(g) The Client acknowledges and agrees that time is not of the essence for.
(i) Any dates or times when Graphic Design Services are due to be performed.
(ii) The length of time that any Graphic Design Service will take to perform as stated in this Agreement or as agreed to by the Parties.
(a) Gyrate Pty Ltd will provide, upon request from the Client, a quote outlining the scope and cost of the Creative/Advertising Service. The quote itself does not constitute a binding agreement between the parties. The quote will remain valid for a period of thirty (30) days from the date of issue.
(b) The quote provided is based on the Client's (written) information and provisions at the initial briefing stage.
(c) If amendments to the brief are realised at a later date, Gyrate reserves the right to alter the quote to cover additional time costs or external costs not originally factored into the quote.
(d) The quote does not include any additional Third Party resources or additional Third Party costs that may be required to complete the project if these were not known at the briefing stage.
(e) If Third Party resources are required during the course of the project, the Client will be contacted and advised of the extra costs associated. Any Third Party resource in a separate expense and a separate quote will be provided by the Third Party.
(f) Resources and items that may be included in the Fee(s) include (though not limited to), image library rights and purchasing; font rights and purchasing; courier charges; printed proof costs; scans; hosting fees; research material.
(g) The Client is responsible for engaging and Third Party and for the payment of any invoice issued to the Client by a Third Party.
(h) The Client and the Third Party will be deemed to have a relationship outside the scope of this Agreement. Gyrate will not form part of the relationship and will not be liable for any changes the Client seeks to the work or service provided by the Third Party.
5. CLIENT ACCEPTANCE / ENGAGEMENT INTO SERVICE
Where at any stage of performing the Creative/Advertising Services Gyrate requires the approval or acceptance of the Client, the following will apply:
(a) Gyrate shall indicate in writing to the Client that a stage has been reached in the performance of the Creative/Advertising Services requiring the approval, acceptance or payment from the Client ("Approval Notice");
(b) If the Client does not notify Gyrate of any matters concerning the quality or content of the Creative/Advertising Services provided to that stage within 3 days (3) days of receiving the Approval Notice, then the Client will be deemed to have approved the performance of the Graphic Design Service up to that stage; and
(c) Where Gyrate has completed performing the Creative/Advertising Services, the Client will be deemed to have accepted or approved them within five (5) days of Gyrate.
(i) Notifying the Client that the Graphic Design Services had been completed;
(ii) Supplying any final report to the Client; or
(iii) Sending an invoice to the Client.
6. APPROVAL PROCESS
During the performance of the Creative/Advertising Service the following Approval Process will be followed:
(a) The first stage will consist of a brief being put together by the client. This involves consultation with the Client to identify the scope of the work required;
(b) The second stage will consist of a quote being given to the Client outlining the costs associated with the brief requirements in clause 5(a);
(c) The third stage will consist of quote acceptance as well as quote signoff by the Client. For Large Creative/Advertising Services Gyrate reserves the right to demand an upfront payment of 50% of the final cost;
(d) The fourth step will consist of Gyrate preparing the work as required in the initial brief;
(e) The fifth step will consist of Gyrate and Client making any amendments. Substantial amendments outside the scope of the initial brief will incur extra costs.
(f) The sixth step will consist of the final sign off.
(g) The seventh step will consist of delivery of the artwork to the Client.
(h) The Final step is payment to Gyrate, in accordance with clause 6(i) hereof.
(a) In consideration of the provision of Creative/Advertising Services in accordance with this Agreement, the Client will pay Gyrate the Fee(s).
(b) The Client acknowledges that the Fee(s) shall be inclusive of any GST that may be charged by Gyrate.
(c) Gyrate shall provide the Client with a tax invoice in accordance with the GST Law in relation to remuneration payable under this clause, and payment is required to be made by the Client to Gyrate within seven (7) days following receipt of Gyrate's invoice.
(d) The invoice in paragraph 6(c) will include the following details:
(i) Date of Creative/Advertising Services;
(ii) Name of the Client;
(iii) Description of the Creative/Advertising Service provided;
(iv) Time allocated per task; and
(v) Gyrate's ABN.
(e) The Client agrees to pay:
(i) 50% non-refundable deposit of the quoted amount to commence the design project;
(ii) 25% is due at the completion of the fifth stage as outlined in paragraph 5(e);
(iii) 25% is due at the final sign off stage and prior to delivery of the final artwork.
(f) If the Client does not make payment by the date stated in an invoice or as otherwise provided for in the Agreement, Gyrate has the discretion to:
(i) To require the Client to pay a late fee as outlined in Schedule 1;
(ii) To require the Client to pay, in advance, for any Creative/Advertising Services (or part of the Creative/Advertising Services) which have not yet been performed;
(iii) Cease performance of any further Creative/Advertising Services (or any part of the Creative/Advertising Services).
(g) When making a payment the Client will quote relevant reference numbers and the invoice number.
(h) Any account outstanding for more than sixty (60) days renders the Client liable to meet in full Gyrate's debt recovery, legal costs and/or commissions and internal accounting charges (recovery fees), and such recovery fees will be added to the buyers account and form part of the principal debt.
(i) No final artwork or files will be delivered until final invoices are paid in full. Payment by cheque will entail waiting for clearance before supply of files.
8. CLIENTS OBLIGATIONS / RESPONSIBILITIES
(a) During the performance of the Creative/Advertising Service the Client will:
(i) Co-operate with Gyrate as Gyrate reasonably requires;
(ii) Provide the information and documentation that Gyrate reasonably requires;
(iii) Make available to Gyrate such facilities as Gyrate reasonably requires;
(iv) Ensure that the Client's staff and agents co-operate with and assist Gyrate;
(v) Communicate with Gyrate through Gyrate's preferred method of communication, that being via email, namely email@example.com.
(b) The Client will not charge for Gyrate's use of the facilities made available by the client.
(c) If the Client does not provide the facilities that Gyrate reasonably requires (and within the time period) to perform the Creative/Advertising Services, any additional costs and expenses which are reasonably incurred by Gyrate will be paid by the Client.
(d) The Client is responsible for all content proofing which includes spelling mistakes and errors. Gyrate will not be held liable or responsible for errors published or printed once a final proof has been approved and signed off by the Client.
(e) By means of final approval and final sign off the Client acknowledges they have checked the project as well as any details relating to their business and confirm all details are correct.
(f) Ensure that all communications in relation to the Creative/Advertising Services, and any amendments to the Creative/Advertising Services and/or the Brief, are provided, in writing, are clear, concise and effectively communicate the Client's instructions. Any delay caused by ambiguous instructions will be solely the fault of the Client.
(g) The Client agrees to behave through all communication in a professional, courteous and respectful manner towards Gyrate. Any actions towards Gyrate deemed to be disrespectful, unprofessional, abusive, bullying or verbal/written cruelty on the part of the Client may result in termination of this Agreement and the deposit will serve as a cancellation fee, along with pro-rata payment based upon the time spent if it exceeds 50% of the quoted work.
(h) Publication and/or release of work performed on behalf of the Client by Gyrate may not take place before cleared funds have been received, or proof of remittance has been received by Gyrate by email to firstname.lastname@example.org
9. USE OF THIRD PARTIES
(a) Gyrate is permitted to use other persons to provide some or all of the Creative/Advertising Services
(b) Any fees associated with the use of Third Parties will be directly invoiced to the Client. The Client is liable to pay the Third Party directly.
(c) Gyrate will not be liable for work undertaken by any Third Party.
10. WARRANTIES / LIABILITY & INDEMNITY
(a) Gyrate warrants that it will use reasonable care and skill in performing the Creative/Advertising Service.
(b) If Gyrate performs the Creative/Advertising Services (or any part of the Creative/Advertising Service) negligently or in breach of this Agreement, then if requested by the Client, Gyrate will re-perform the relevant part of the Creative/Advertising Services. The Client's request must be made within seven days (7) of the Completion Date.
(c) Gyrate provides no warranty that any result or objective can or will be achieved or attained at all or by the Completion Date or any other date, whether stated in this Agreement or elsewhere.
(d) The Client shall indemnify and hold harmless Gyrate from and against all Claims and Losses arising from loss, damage, liability, injury to Gyrate, its employees and Third Parties, infringement of Third Party intellectual property, or Third Party losses by reason of or arising out of any information supplied to the Client by Gyrate, it employees or consultants, or supplied to Gyrate by the Client within or without the scope of this Agreement.
(e) Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.
(f) The Client will be held liable for any errors in the artwork after they have given final sign off / final approval.
(g) The Client guarantees that any text, graphics, photos, trademarks, or other aspects provided by the Client to Gyrate for inclusion in the artwork is owned by the Client and/or the Client has permission to use those elements.
(a) Notwithstanding anything in this Agreement to the contrary, either Party may terminate this Agreement by notice in writing to the other if the Party is notified of a breach against the terms of this Agreement and fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of seven (7) days notice of the breach being given in writing by the notifying Party to the other Party.
(b) Notwithstanding anything in this Agreement to the contrary the Client may terminate this Agreement at any time by notice in writing to Gyrate, Gyrate is guilty of any dishonesty, serious misconduct or serious neglect of duty, or in connection with the provision of the Creative/Advertising Services.
(c) Notwithstanding anything in this Agreement to the contrary, Gyrate may terminate Creative/Advertising Services if the Client fails to make payment of invoices.
(d) Notwithstanding anything in this Agreement to the contrary, either Party may terminate this Agreement upon the happening of any of the following events:
(i) The giving of at least seven (7) days written notice by one Party to the other Party of the intention to terminate this Agreement;
(ii) If the Client enters into a deed of arrangement or an order if made for it to be wound up;
(iii) If an administrator, receiver or receiver/manager or a liquidator is appointed to the Client pursuant to the Corporations Act 2001 (Cth); or
(iv) If the Client would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).
(e) On termination of this Agreement, the Client will pay for all Graphic Design Services provided up to the date of termination, and for all expenditure falling due for payment after the date of termination from commitments reasonably and necessarily incurred by Gyrate for the performance of the Creative/Advertising Services prior to the date of termination. An invoice will be issued and payment is to be made within fourteen (14) days from the date of issue.
12. CLIENT RESPONSE TIME & PROJECT DURATION
(a) The Client must respond to Gyrate within two (2) days to each draft/request for information. If the Client fails to respond within four (4) days Gyrate may consider this Agreement terminated. At such time Gyrate will have no further obligations to the Client, and the Client must pay all fees and expenses associated with the work performed.
(b) If the Client requests work to be completed within a shorter timeframe than what was originally agreed Gyrate is eligible to charge an extra 20% onto of Gyrate's hourly rate.
13. DESIGN / WORKING OR CONSTRUCTION FILES AND UNUSED CONCEPT FILES
(a) Working files, construction files and unused concepts include, (but are not limited to) Indesign, Illustrator, Photoshop - remain the property of Gyrate's. See section 18 for details on Copyright.
(b) In the event of Termination, prior to the completion of the Graphic Design Services, the Client, upon proper payment of all outstanding Fee(s) for work undertaken, may request the release of the collected working files.
(c) Gyrate will charge, and the Client will pay Gyrate's release fee for these files.
14. EXTRA WORK
(a) This is defined as any work involving additions to the list of items defined in the Project Proposal / Brief or changes to all pieces of finished artwork after sign off or payment by an authorised representative of the Client.
(b) Should additional design not initially quoted for be requested during the design process, a progress payment will be payable prior to further works being carried out. Otherwise, all additional costs will be added to the final invoice, payable prior to delivery of design files.
15. APPROVAL OF FINAL ARTWORK
While Gyrate will take all care to avoid errors, Gyrate accepts no responsibility for typographical errors, spelling mistakes, or incorrect information on any project committed to print or production. The Client is to proof read and approve all final copies before the production of artwork. The email verification of the Client or their representative/s will be conclusive as to the final approval of all artwork prior to the release for printing, implementation or installation. No refunds or reprints are given after a final approval design has gone to print due to oversights by the Client's proof reading.
16. SHORT TIME FRAME / FAST TURN AROUND JOBS
If the Creative/Advertising Services are required by the Client in a short time-frame, in the opinion of Gyrate, then Gyrate will impose a Short Time-Frame Fee of 20% of the Fee(s) to undertake the work in the short time-frame. Gyrate will advise the Client prior to undertaking the works if they are considered Short Time-Frame. The payment of the Short Time-Frame Fee is payable on the final invoice.
17. MEETING / CONSULTATION FEE
Face-to-face briefings / meetings and ongoing catchup meets with Clients regarding projects will be charged at an hourly rate or otherwise stipulated (caped rate). Travel time is not included in this fee unless otherwise stipulated to the client. Travel time may be included in a meeting / consultation fee due to Clients remote locality. (Remote access is defined as outside: Sydney CBD 30km radius, Newcastle CBD 30km radius, Bowral CBD 20km radius.) When visiting a Client onsite at office of business or on neutral territory - any major road tolls associated with location of the meeting will be billed to the Client.
18. COLOUR VARIATION IN PRINT
With all physical external printing there may be some colour variation from what is viewed on a digital display or desk top printer, to what the final print production is. All external printers are different and will read colour slightly different with a 15% variance. There will be no reprints at the expense of Gyrate once final approval has been provided by the Client. It is recommended by Gyrate that all new jobs require a printed proof or colour sample provided. If deadline is tight or short time frame project, this is at the risk of the Client if time has not been allowed for this. It is recommended where possible for Client to supply CMYK, or Pantone breakdowns where by designer / printer has a universal standard to follow if colour replication is an issue.
19. COLOUR VARIATION IN DIGITAL
All colour computer digital display monitors vary slightly and this is due to many factors. It is recommended where possible for Client to supply RGB, or Pantone breakdowns where by designer has a universal standard to follow.
(a) Copyright of the final PDF artwork remains with Gyrate until final payment is received.
(b) The Client receives copyright of the final PDF artwork once final payment is made and received by Gyrate.
(c) After final payment Gyrate still possesses the right to showcase the works completed for the Client in a portfolio scenario marketing sense for graphic design
(d) Gyrate retains the intellectual property / rights to the project always. Gyrate retains full ownership over all concept and working files (Indesign, Photoshop, Illustrator files) that have been used to produce the finished and final art.
(e) Client maintains copyright privilege over Client provided graphics and visual elements once paid.
(f) Release fee is required if Client wishes to have working files. Simple files $30 release fee / Complex files - cost will be determined on case by case.
21. RESENDING FILES OR RE-REQUESTING FILES
If a client misplaces or accidentally deletes the files delivered to them by Gyrate, Gyrate reserves the right to charge a fee of $50 (plus GST if applicable) for the resending of files. Artwork on DVD or USB Drive - If any client artwork is required on CD/DVD, an administration fee of $50 plus courier/postage will be payable by the Client.
22. WEBSITE DESIGN COMPATIBILITY
The website will be fully functional with all browsers (Internet Explorer, Firefox, Google Chrome and Safari) on its day of release, some variations between browsers occur but these are marginal. Gyrate and any Third Party Work is not responsible for the working of the website into the future as technology advances. Every precaution will be taken at the time of building so that the website will remain functional within our control. It is important to note that websites are not built for mobile devices and tablets as standard, this must be discussed during the preliminary design phase as requires more work.
23. WEBSITE DESIGN CREDIT
Site by Gyrate.
24. WEBSITE DESIGN POST-COMPLETION ALTERATIONS
Upon completion of the Graphic Design Services, Gyrate is not responsible for any Third Party Work including, but not limited to, website development or maintenance.
Gyrate will treat all Client information as private and confidential and will not disclose the Client's confidential affairs to other clients or the public. All files, materials and emails will be kept secure and backed up.
26. RATE CHANGE
All Client's are billed by an hourly rate. This hourly rate is subject to change if the following occurs over time: Workload and design duties are intensified, design turn around is hastened continually, Higher creativity (art direction) talents are required, Increase to client / business expenses.
(a) Force Majeure
Neither Party shall have any liability under or be deemed to be in breach of the Agreement for any delays or failures of this Agreement which results from circumstances beyond the reasonable control of that Party. The Party affected by such circumstances will promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so. If circumstances continue or a continuous period of more than six (6) months, either Party may terminate this Agreement by written notice to the other Party.
This Agreement may only be amended in writing signed by duly authorised representatives of the Parties.
(c) Entire Agreement
(i) This Agreement contains the whole agreement between the Parties in respect of the subject matter of Agreement and supersedes and replaces any prior written or oral agreements, representations or understanding between them relating to such subject matter.
(ii) The Parties confirm that they have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
(i) No failure or delay by Gyrate in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power of privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
(ii) The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
(i) This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.
(ii) Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party's behalf.
(f) Further assurance
Each Party to this Agreement will at the request and expense of the other Party execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
If any provisions of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstance of or the validity or enforcement of this Agreement.
A notice or other communication connected with this Agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addresses as set out in this Agreement, or sent by email.
(i) Law and jurisdiction
This Agreement takes effect, is governed by, and shall be construed in accordance with the laws from time to time in force in the state of New South Wales, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of New South Wales.
(j) Acknowledgement of terms and conditions
In signing this Agreement the Client understands their obligations and responsibility contained within this Agreement and the Client agrees to be bound by all the terms and conditions contains within this Agreement.
(k) Portfolio of work
Gyrate retains the right to reproduce, publish and display the Client's project within a portfolio for Gyrate's website, graphic design competitions, portfolio and other media or exhibits for the purpose of recognition of creative excellence or professional advancement.
(l) Safe storage
The Client is responsible for the safe storage of all files after final delivery. Gyrate will treat all Client information as private and confidential and will not disclose the Client's confidential affairs to other clients or the public. All files, materials and emails will be kept secure and backed up.