TERMS AND CONDITIONS

These terms and conditions (Terms & Conditions) shall govern the provision of all goods and/or services by Flaming Kettle ABN (43562127053). The meaning of capitalised words is given at the end of these Terms & Conditions.

 

TERMS OF AGREEMENT

1.1.        An Agreement in respect of any Work or proposed Work shall constitute the entire agreement between Flaming Kettle and the Client in respect of such Work or proposed Work and shall supersede any prior written or oral agreements, arrangements or understanding between the parties relating to such Work or proposed Work.

1.2.        In the event of any inconsistency in an Agreement between these Terms & Conditions and a relevant Proposal, the terms of the Proposal shall prevail to the extent of the inconsistency.

1.3.        In the event of any inconsistency between these Terms & Conditions and any terms of trade or ordering customarily adopted by the Client (including the terms of any order form used by the Client) these Terms & Conditions shall prevail.

1.4.        Any amendment to any part of these Terms & Conditions, a Proposal or a Credit Application must be made in writing.


  1. PRICE

2.1.        All quoted prices are in Australian dollars and unless otherwise stated in writing, prices for Work or proposed Work contained in any Proposal or Work Instructions are exclusive of GST.

2.2.        Prices for Work or proposed Work contained in any Proposal or Work Instructions shall be taken to be an estimate unless they are stated to be a quotation.

2.3.        In the event of any increase in the cost of relevant goods or services supplied by third parties after acceptance of a quotation by the Client Flaming Kettle may pass that increase on to the Client.

2.4.        Prices for Work or proposed Work do not include labour costs and other costs and expenses incurred by Flaming Kettle as a result of:

(a) Variations; or

(b) progress delays for reasons not attributable to Flaming Kettle.

Unless otherwise agreed in writing, such costs and expenses will be charged to Clients at Flaming Kettle’s then prevailing prices and/or hourly rates in relation to the relevant Work and invoiced at Flaming Kettle’s discretion.

2.5.        Where a Work Instruction has been given verbally, Flaming Kettle will use its best endeavours to produce Work Product in accordance with that instruction. However, Flaming Kettle shall not be responsible for any changes required by the Client to such Work Product and such changes shall be deemed to be Variations and chargeable as such.

2.6.         Payment outside of a contract on a month by month structure will be subject to change.


  1. TERMS OF PAYMENT

3.1.        Unless otherwise agreed in writing in a relevant Proposal or Work Instruction, Flaming Kettle may issue invoices to the Client:

(a) monthly;

(b) upon the completion of a relevant item of Work Product

3.2.        All payments shall be made in Australian Dollars (AUD) and by bank transfer to the chosen account of Flaming Kettle.

3.3.         Client will pay the invoice within 14 Business Days of the invoice date.

3.4.         Flaming Kettle reserves the right to employ the services of a debt collector in the event that any Fees remain unpaid 30 days after they were due. Flaming Kettle reserves the right to recover any costs associated with recovering this debt.


  1. LATE PAYMENT

4.1.         If the Client fails to make any payment due to the Flaming Kettle on the due date then Flaming Kettle shall not be liable for any consequential Work delays and, without prejudice to any other right or remedy available to Flaming KettleFlaming Kettle shall be entitled to:

(a) terminate any Work by giving written notice to the Client provided that the Client fails to make the due payment within 7 Business Days after receiving written notice from Flaming Kettle requiring such payment to be made; or

(b) suspend any Work, resuming upon receipt of cleared funds amounting to all amounts due by Flaming Kettle.


  1. SERVICES

5.1         Where the Work involve SEO, the Client understands and acknowledges the following:

  • the times for websites to appear on search engine listings vary and Flaming Kettle can thus not guarantee that the Client’s website will appear immediately on the designated search engines or that its position will change immediately from that which it held prior to the Work being performed;
  • Flaming Kettle cannot control the search engines and cannot provide any guarantee that any of the designated search engines will not change their policies or functionality in such a way that will have a detrimental effect on the ranking of the Client’s website following the completion of the Work and Flaming Kettle reserves the right to make changes to the Work as a result of the same;
  • Flaming Kettle accepts no responsibility for any detrimental effect on the Client’s website’s search engine rankings which results from any activity of the Client or any third party including, but not limited to, alterations to the Client’s website;
  • Flaming Kettle makes no guarantee that the Work will result in the Client’s website appearing in the top 10 search results on the designated search engines, shall not be responsible for URLs dropped or excluded by a search engine for any reason, and does not guarantee the Work performed will procure a minimum number of views, position or frequency in searches on relevant words or otherwise, a certain volume of traffic, number of clicks, registrations, purchases or that any other specific result will be achieved.

5.2         Where the Work involve Google AdWords Management, the Client understands and acknowledges the following:

(a) Flaming Kettle will set up online advertising campaigns, and deliver Google paid search traffic to the Client’s website. If paid search traffic cannot be delivered to the website in question due to matters outside Flaming Kettle’s control including the editorial policies of the search engines regarding the acceptance of advertiser web properties, then Flaming Kettle will notify the Client of the situation in writing. Flaming Kettle is not to be held liable in this situation.

(b) Costs associated with media and clicks generated from running this service may be charged directly to Flaming Kettle by search engines. The Client authorises Flaming Kettle to utilise the reimbursed ad spend budget to the search engines for this purpose, subject to the budget agreed from time to time.

(c) All Google AdWords accounts set up by Flaming Kettle are the property of Flaming Kettle, and will not be provided to the Client upon cancellation of their Google AdWords service.

(d) The Clients must comply with the search engine guidelines for Google AdWords Campaigns, which can be found at https://support.google.com/adwordspolicy.

5.3         Where the Work involve Website Design, the Client understands and acknowledges the following:

(a) Website design services are provided as per the Agreement with Flaming Kettle. An approximate timing schedule is provided at the time of the Website Design Agreement. Failure to provide content or other items within the specified time will delay the setup of the website.

(b) If the Client discontinues the development of the website at any stage prior to completion, the Client is liable to pay a subsidised amount of up to 50% of the original agreed cost. Further, if the Client discontinues the development of the website at any stage prior to completion, the Client is responsible for any fees associated with the completion of the website.

(c) After the launch of a website, the Client is responsible for backing up their website on a regular basis. In the event that the Clients website goes down Flaming Kettle are not responsible for bringing the website back online.

 

  1. TITLE AND POSSESSION,

6.1.        Ownership of and title in Work Product remains with Flaming Kettle until Flaming Kettle receives payment of all amounts due in respect of that Work Product (notwithstanding any earlier delivery to, or possession by, the Client of such Work Product).

6.2.        Unless otherwise specified in writing in a relevant Proposal or Work Instruction, or unless Flaming Kettle has agreed to grant credit terms to a relevant Client, Flaming Kettle may retain possession of any Work Product until it has received payment in full for such Work Product.


  1. TIME AND QUANTITIES FOR DELIVERY

7.1.        Delivery of Work Product shall be made in accordance with any relevant provision in any Proposal or Work Instruction or, if there is no such provision, within a reasonable time.

7.2.        Flaming Kettle shall not be responsible for delivery delays resulting from Variations or payment delays by the Client.


  1. CLAIMS

8.1.        Any claim by the Client relating to the quality, quantity or any other aspect of any Work Product must (subject to any contrary right given to a consumer by the Australian Consumer Law) be made in writing within 7 days of collection of the Work Product by, or actual delivery of the Work Product to, the Client.

8.2.        Any claim by the Client relating to the amount of any invoice or part thereof must be made in writing within 14 days of the invoice date.


  1. INTELLECTUAL PROPERTY

9.1.        The Client warrants that no text or imagery supplied by the Client to Flaming Kettle for the purposes of Work or proposed Work will breach any law (written or unwritten) or infringe any intellectual property right of any third party or result in Flaming Kettle otherwise becoming liable to any third party. Without limiting such warranty, Flaming Kettle may at its absolute discretion refuse to set up, print or deliver any matter which in its opinion may expose Flaming Kettle or any of its employees or agents to any action, claim, demand, or proceeding whatsoever.

9.2.        Where the Client has informed Flaming Kettle of the intended use of Work Product, the Client warrants the accuracy of such information.

9.3.        Flaming Kettle will not, in the creation or production of Work Product for the Client, knowingly infringe any other person’s intellectual property rights. However, Flaming Kettle does not warrant that anything that it utilizes in the creation or production of Work Product for a client, or embodied in the Work Product created or produced for a Client, does not infringe any other person’s intellectual property rights.

9.4.        Upon receipt by Flaming Kettle of payment in full for any Work Product Flaming Kettle shall, upon reasonable request by the Client, enter into any written assignment, or other acknowledgment of the Client’s ownership, of copyright in such Work Product sought by the Client (provided that the Client must pay Flaming Kettle’s legal costs, if any, of seeking advice on such assignment or acknowledgment).

9.5.        Where more than one concept, design or other option has been presented to the Client, options other than that selected by the Client as the final Work Product shall remain the property of Flaming Kettle unless otherwise agreed in writing. Fees may apply to granting of further usage rights in respect of such concepts and designs.

9.6.        If Work involves photographs being created by Flaming Kettle on behalf of the Client, then the Client will own full usage rights for such photographs upon receipt of payment in full for the Work Product in which the photographs were used. If Work involves photographs being commissioned from third parties, then usage rights for such photographs shall be governed by the terms under which those photographs are supplied by the third parties.

9.7. If     Work involves images sourced from image libraries, then use of those images will be subject to the terms of those image libraries. If Flaming Kettle informs the Client of the source of such images the Client shall be deemed to be aware of such terms and must comply with them.

9.8.        Notwithstanding any other provision in these Terms & Conditions, Author Materials used by Flaming Kettle or its suppliers in creation of Work Product shall remain the sole and exclusive property of Flaming Kettle or the relevant supplier(s).

9.9.        Unless otherwise agreed in writing, the Client grants to Flaming Kettle standard authorship acknowledgement and permission to use its Work Product to promote its services. In relation to digital presentations and web-based systems or sites designed or developed by Flaming Kettle, the authorship acknowledgement includes hyperlink(s) to Flaming Kettle’s designated website.


  1. MATERIALS SUPPLIED BY CLIENTS

10.1.      All materials (logos, images, text or other material) supplied by the Client must be of a quality and to the specifications required by Flaming Kettle. Additional costs apply for any additional Work required to be performed to attain such quality or specifications.

10.2.      Flaming Kettle and the Client must agree on deadlines for delivery of materials to be supplied by the Client. The Client will be responsible for all costs incurred by Flaming Kettle in the loss of production time due to such deadlines not being met by the Client or due to the materials supplied not being of a quality or to the specifications required by Flaming Kettle.

10.3.      Flaming Kettle accepts no responsibility for imperfect work caused by defects in or the unsuitability of materials supplied by the Client.

10.4.      All materials supplied to Flaming Kettle by or on behalf of the Client (including goods in transit) shall remain at the Client’s risk and Flaming Kettle accepts no liability whatsoever for loss of or damage to such materials.

10.5.      Where property or materials supplied by the Client are left with Flaming Kettle after completion of relevant Work, Flaming Kettle shall be permitted to dispose of them at the expiration of 60 days following the date of completion of such Work and to apply the proceeds, if any, to cover storage costs and payment of the balance to the Client.


  1. WARRANTIES AND LIMITS OF LIABILITY

11.1.      Subject to clause 11.3 and to the maximum extent permissible by law, Flaming Kettle excludes:

(a) all conditions, warranties, duties and rights implied by statute relating to the supply of any goods and services under or in respect of an Agreement or otherwise; and

(b) all liability to the Client for any acts or omissions of Flaming Kettle in tort (including negligence), contract or otherwise resulting in costs, losses, liabilities or damage suffered by the Client.

11.2.     Flaming Kettle gives no representation, warranty or guarantee whatsoever as to the success or effectiveness of, or the results that may be achieved by Work Product, including, but not limited to, any branding, marketing, advertising material or web-based solutions that Flaming Kettle develops for the Client. The Client acknowledges that it is responsible for the content of all Work Product and ensuring that the Work Product and any solutions developed by Flaming Kettle are adequate and appropriate for its needs.

11.3.      In the event that the supply of goods and/or services to the Client is a supply of goods or services to a consumer as defined in the Australian Consumer Law, nothing contained in these Terms & Conditions excludes, restricts or modifies in relation to such supply of goods and/or services the consumer guarantees provided therein provided that to the extent that the Australian Consumer Law permits Flaming Kettle to limit its liability for a breach of a consumer guarantee, then Flaming Kettle’s liability for such breach will be limited to:

(a) in the case of the supply of goods:

(i) the replacement of the goods or the supply of equivalent goods;

(ii) the repair of the goods;

(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; and/or

(iv) the payment of the cost of having the goods repaired; and

(b) in the case of the supply of services:

(i) the supplying of the services again; or

(ii) the payment of the cost having the services supplied again.

11.4.      The exclusions and releases in these Terms & Conditions extend, to the maximum extent permissible by law, to loss of profits or anticipated proceeds from sales or marketing or any other indirect or consequential damage and to economic loss and even if Flaming Kettle knows such loss or damage is possible or foreseeable.


  1. INDEMNITY

The Client shall indemnify and hold Flaming Kettle harmless from and against, all costs, losses, charges, expenses, liabilities, damages, fees and disbursements (including all reasonable legal costs) paid or incurred by Flaming Kettle in respect of or incidental to:

(a) any claim, action, demand or proceeding by any third party in connection with Work undertaken or Work Product created or produced for the Client, including without limitation any alleged infringement of intellectual property rights arising from such Work or Work Product; and

(b) the recovery of amounts owed to Flaming Kettle by the Client. This indemnity survives termination of this Agreement.


  1. FORCE MAJEURE

Work may be suspended or cancelled by Flaming Kettle in the event of any strike, lockout, trade dispute, fire, tempest, breakdown, riot, theft, crime, civic disturbances, war, legislation, Act of God, the inability of Flaming Kettle to procure necessary materials or articles or any other cause beyond the control of Flaming Kettle and no responsibility will be attached to Pixel for any delay, loss or damage occasioned thereby.

  1. GOVERNING LAW

This Agreement is governed by the laws of Western Australia. The Client submits to the nonexclusive jurisdiction of the courts of Western Australia and any courts which may hear appeals from those courts in respect of any proceedings in connection with this Agreement.


  1. DEFINITIONS and INTERPRETATION

15.1.      In these Terms & Conditions:

Agreement” means, in respect of any Work or proposed Work:

(a) these Terms & Conditions; and

(b) any applicable Credit Application; and

(c) either (i) any applicable Proposal; or (ii) any applicable Work Instructions.

“Australian Consumer Law” means, as the context requires, the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) or as adopted in Western Australia by the Fair Trading Act 2010 (WA).

“Authors Materials” means trade secrets, know-how, methodologies, intellectual property, programming code, templates, processes, systems and digital working-files related to Work undertaken by Flaming Kettle.

 “Client” means:

(a) where a Proposal has been accepted in writing, the person or entity named as the Client I the written acceptance; or

(b) where a Proposal has been impliedly accepted, the person or entity to whom the Proposal was addressed; or

                Flaming Kettle means Flaming Kettle, a subsidiary of Pixel Pie ABN (43562127053) trading as Pixel Pie.

Proposal” means any document or documents provided by Flaming Kettle to the Client in respect to proposed Work concerning either or both of:

(a) the scope; and

(b) the price

of the proposed Work and either expressly or impliedly accepted by the Client, including any amendments thereto made in writing.

SEO” means search engine optimisation services

Variations” means changes to Work Product or proposed Work Product that result from:

(a) directions which are not included in the relevant Proposal or Work Instructions or

(b) changes made (after acceptance of a Proposal by a Client or receipt of Work Instructions by Flaming Kettle) to project specifications, creative briefs, approved designs, and/or text, content or instructions provided by the Client; or

(c) assumptions, requirements or preferences not specifically detailed in any Proposal or Work Instructions; or

(d) poorly prepared content in any specifications, roughs, layouts or samples, give to Flaming Kettle; or

(e) omissions, oversights, changes or errors by the Client.

Work” means any work undertaken by Flaming Kettle for the Client including but not limited to any step in the production of designs, creative concepts, images, written works, digital artwork, digital files, programming code, printed items and/or manufactured items.

Work Instruction” means a direction given to Flaming Kettle to undertake Work for the Client other than by means of provision and acceptance of a Proposal.

Work Product” means finished designs, creative concepts, images, written works, digital artwork digital files, programming code, printed items and/or manufactured items created or produced by Flaming Kettle for a Client (but, for the avoidance of doubt, does not include drafts, interim work rejected concepts and similar work product not intended to be delivered to the Client).

15.2.      Whenever in these Terms & Conditions the term “in writing” is used in respect of:

(a) an agreement, it means by document signed by Flaming Kettle and the Client, or by exchange of letter, fax or email or by such other means as are agreed by the parties or

(b) notice, it means written notice given by means of letter, fax or email.

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