Terms and Conditions
Important this page contains Stitch Communications’ standard terms and conditions governing the provision of services to you ‘the Client’ as identified on a Project Estimate. Please read this agreement carefully as these terms and conditions, together with the information in each Project Estimate, will form a legally binding agreement between you and Stitch Communications.
Stitch Communications (ABN 79 308 786 911) and the Client identified in the Project Estimate agree that the following terms and conditions will apply to the Services to be performed by Stitch Communications under this Agreement.
1. Services
1. Stitch Communications will provide the Services to the Client.
2. It is understood and agreed that the Services may include advice and recommendations, but all decisions in connection with the implementation of such advice and recommendations will be the responsibility of the Client.
2. Scope of Services
1. Stitch Communications will make commercially reasonable efforts to adhere to the Client's brand and content direction. If the Client's feedback for a Project departs in a significant manner (as determined by Stitch Communications) from the Client's original scope of Services, Stitch Communications reserves the right to charge additional fees for time and materials for such Client Alterations at the rates specified in the Project Estimate, and if no rates are specified then at Stitch Communications’ then current rates.
3. Term
1. This Agreement will commence on the earlier of the date the Client signs and returns a copy of the Project Estimate to Stitch Communications and the date of the commencement of the Services. This Agreement will expire on the completion of the Services, unless terminated earlier in accordance with this Agreement.
4. Payment of invoices
1. In consideration of Stitch Communications performing the Services the Client must:
a) pay to Stitch Communications the Fees; and
b) reimburse Stitch Communications (at Stitch Communications’ actual cost) for any Allowance.
2. Stitch Communications will issue an invoice (or invoices) in respect of the Services and the Client must pay each invoice within 28 days of the date of each invoice.
3. Stitch Communications may issue a deposit invoice or progress payment in respect of the Services and the Client must pay each deposit invoice within 14 days of the date of each invoice. In the case of a deposit invoice the project will not start until the project deposit has been received.
4. Without limiting its other rights or remedies, Stitch Communications has the right to suspend or terminate the Services, if payment is not received on time.
5. Intellectual Property
1. Stitch Communications may contribute Background Material as part of the Services. The Intellectual Property in Background Material remains vested in Stitch Communications. Stitch Communications grants to the Client a non-exclusive licence, to use the Intellectual Property in the Background Material for the sole purpose of using the Project in the ordinary course of the Client's business.
2. Subject to clause 5.1 and the Client paying the Fees and any Allowances and Committing to related projects in their entirety, the Intellectual Property rights in the Project will vest in the Client.
3. The Client grants to Stitch Communications the right to include, at Stitch Communications’ discretion, the Client's name and details of the Project (including a copy of the Project) as part of Stitch Communications’ portfolio of work for the purpose of promoting Stitch Communications.
6. Client Intellectual Property
1. If the Client contributes Client Material to Stitch Communications in connection with the Services, the Client grants to Stitch Communications a royalty-free, non-exclusive and perpetual licence to use, reproduce, disclose, modify and adapt the Client Material for the purpose of providing the Services.
2. The Client warrants that the provision of Client Material to Stitch Communications, and that Stitch Communications’ permitted use of Client Material (including incorporation of the Client Materials into the Project), will not infringe the Intellectual Property rights of any person, or infringe any other Laws or a person's rights under any Law.
7. Trade Marks
1. The Client acknowledges and agrees that:
a) it is the Client's responsibility to undertake, or have undertaken on its behalf, appropriate Trade Mark infringement and clearance searches to ensure that the Project and any Trade Mark(s) featured in the Project, and the Client's use of the Project will not infringe another person's rights;
b) Stitch Communications provides no assurance or representation whatsoever that the Project and any Trade Mark(s) incorporated within the Project will be capable of registration as a Trade Mark in Australia under the Trade Marks Act 1995 or in any overseas jurisdiction;
c) Stitch Communications provides no warranty, assurance or representation whatsoever that the Project or any Trade Mark(s) incorporated within the Project will not infringe the rights of any existing Trade Mark (whether registered or unregistered anywhere in the world); and
d) use of the Project by the Client is at the Client's sole risk.
8. Warranties and Liability
1. Stitch Communications will perform the Services with due care and skill. Stitch Communications disclaims all other warranties, either express or implied, including without limitation warranties of merchantability and fitness for a particular purpose.
2. Stitch Communications does not guarantee "match-print" or "match-product" colour fidelity and cannot prevent slight colour variations throughout an order. The Client also acknowledges and agrees that there may be unavoidable differences between colours as they appear on a particular computer model (depending upon calibration) and the actual colour in printed form. Therefore, Stitch Communications does not guarantee the final printed products will match earlier preview colours.
3. To the maximum extent permitted by law, Stitch Communications excludes for itself and its officers, employees, agents and contractors, all liability for all claims, expenses, losses, damages and costs made against or incurred or suffered by the Client directly or indirectly (including without limitation lost costs and profits) arising out of:
a) the Client's use of the Project; and
b) Stitch Communications’ negligence or the negligence of Stitch Communications’ officers, employees, agents or contractors.
4. If Stitch Communications breaches any express provision of this Agreement or a condition or warranty implied under any law which cannot be lawfully modified or excluded by this Agreement, then Stitch Communications’ liability to the Client will, to the extent permitted by law, be limited at Stitch Communications’ option to supplying the Services again, or paying for their resupply.
5. The Project and all stationary and other materials featuring the Project, as set out in a Project Estimate, will be printed as they appear during the final approval step. It is the Client's sole responsibility and the Client must satisfy itself, that all stationary and other materials are formatted correctly, do not contain spelling or grammatical errors and comply with all relevant laws before advising Stitch Communications of its final acceptance.
6. Stitch Communications’ liability to the Client for loss or damage of any kind (including loss or damage caused by negligence) is reduced to the extent that the Client caused or contributed to that loss or damage.
9. Termination
1. If any of the following things happen, Stitch Communications may give the Client a written notice terminating this Agreement, with immediate effect:
a) the Client breaches one of its obligations under this Agreement, and then fails to rectify the breach within 14 days of it receiving a notice from the Client identifying the breach;
b) one of the Client's warranties in this Agreement is or becomes untrue;
c) the Client becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;
d) the Client, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
e) the Client, being a natural person, dies; or
f) the Client ceases or threatens to cease conducting its business in the normal manner.
2. If this Agreement is terminated by Stitch Communications under clause 9.1 then Stitch Communications will stop performing the Services and may, in addition to terminating this Agreement:
a) retain any Fees and Allowances paid;
b) be regarded as discharged from any further obligations under this Agreement;
c) pursue any additional or alternative remedies provided by law;
d) the Client must pay Stitch Communications the Fees and any Allowances that are, on the date of termination, due and payable under this Agreement; and
e) the Client must indemnify Stitch Communications in relation to its unavoidable and unrecoverable costs directly arising from the termination.
3. Either party may terminate this Agreement on notice by giving the other party one month's notice in writing.
4. If this Agreement is terminated by the Client under clause 9.3:
a) Stitch Communications will stop performing the Services at the date termination has effect;
b) the Client must pay Stitch Communications the Fees for the Services performed, and Allowances incurred (or if not incurred are unavoidable), up to the date the termination has effect; and
c) the Client must indemnify Stitch Communications in relation to its unavoidable and unrecoverable costs directly arising from the termination.
10. Miscellaneous
1. Variation: This Agreement may only be varied by written agreement of the parties.
2. Governing Law: This Agreement is governed by the laws of, and the parties irrevocably submit to the non-exclusive jurisdiction of, the courts of the A.C.T.
3. Entire Agreement: This Agreement sets out the entire agreement between the parties in relation to the subject matter and supersedes any previous correspondence, agreement, arrangement or understanding.
4. Client's right to enter into this Agreement: The Client warrants it is authorised to enter into this Agreement and to grant the rights contemplated by this Agreement.
5. Severability: If a clause(s) of this Agreement is held to be invalid or otherwise unenforceable then that clause will be deemed to be severed without affecting the enforceability of the remainder of this Agreement.
Digital and Website Hosting Terms and Conditions
These are the Standard Terms And Conditions of Supply of Stitch Communications for Digital, Website hosting and other services offered from time to time by Stitch Communications ("the Service"). These terms apply to you as a user of the Service ("Client" or "you"). Please read these terms and conditions carefully. It is a condition of your use of the Service that you comply with these terms and conditions.
1. Terms and Amendment Procedure
1. These are the terms upon which we agree to provide the Service to the Client. The agreement made between us with these terms commences on the date your order for Services was accepted by Stitch Communications.
2. Please look out for any amendments to these Terms and Conditions that Stitch Communications ("we") might make in the future. Future terms and conditions will be communicated by electronic mail to hosting clients of Stitch Communications.
3. We may vary these terms, the amount we charge for any Service, or the terms of the operation of the Service, at any time by general notice via email to all Clients. The changes will become effective upon publication of the email. Where we vary the prices for Services, we will give at least 14 days notice of the change by the same means, and the new prices will apply at the end of that period.
4. If you use the Service after that publication, your use will constitute an acceptance of the amended terms.
5. These terms constitute the agreement in its entirety and supersede prior agreements.
6. We may from time to time run promotions and make special offers of limited time duration ("Promotions"). All Promotions are offered subject to their terms and may be withdrawn or altered at Stitch Communications’ discretion. The terms of a promotion will override these terms to the extent of any inconsistency.
5. Service
1. We will assign the Client a method for electronic identification and authentication, such as but not limited to a username and password. Selection of methods shall be entirely at Stitch Communications’ discretion. The Client agrees to abide by any methods selected by Stitch Communications including but not limited to username and password, certificates. Identification and authentication methods will provide the client access to subscribed Stitch Communications’ services. Stitch Communications will provide the client with guidelines for acceptable client software (as in client-server software). In some cases this may involve a recommendation for client installed software, an exclusion of a particular type and or version of software, or software provided directly by Stitch Communications. Unless the privilege is granted by Stitch Communications, individual identification and authentication methods are for individual use only and are not to be shared with others or in a group.
2. Unscheduled maintenance may need to be performed. If unscheduled maintenance requires the service to be off-line for more than 30 minutes, we will notify Clients via email after the maintenance has been completed.
3. In contracting with Stitch Communications for the Services, the Client obtains no rights to the hardware and other infrastructure and facilities used by Stitch Communications to deliver the Service.
4. In the absence of any additional written agreement, these terms (as varied from time to time) will apply to any further Services you acquire from Stitch Communications.
6. Payment
1. You must pay in advance for the Service as notified to you by Stitch Communications in accordance with the prices in force for Services from time to time.
2. You must pay all Service time charges, minimum charges and other amounts incurred by you or any designated users or incurred as a result of any use of your assigned identification and authentication method(s) whether authorised by you or not.
3. Prices are inclusive of any government taxes or charges unless otherwise noted, and exclusive of any registration or delegation charges imposed by domain name authorities.
4. In addition, you must provide and pay for:
a) the installation and use of telephone lines and all other equipment needed to access the Service; and
b) all government taxes, duties and levies (if any) imposed on either you or us in respect of the Services or any other service or goods supplied.
5. Billing period is on an annual cycle beginning when you register. Acceptable methods for payment at this time are bank transfer of funds or credit card direct debit.
7. Warranties and Liabilities
1. We do not warrant that:
a) the Services provided under this agreement will be uninterrupted or error free;
b) the Services will meet your requirements, other than as expressly set out in this agreement or
c) the Services will be free from external intruders (hackers) or other persons having unauthorised access to the services or systems of Stitch Communications.
2. Except as expressly provided to the contrary in this agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this agreement, are excluded. Where any statute implies any term into this agreement and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. However, our liability for any breach of the term will, if permitted by that statute, be limited, at our option, to the resupply of the services again; or payment of the cost of having the services supplied again.
3. Except under clause 4.2, Stitch Communications. will not be liable to the Client for:
a) any loss or damage in respect of the provision of the Services,
b) any costs, claims, loss or damage of any kind resulting from the fraudulent, negligent or otherwise unlawful behaviour of the Client,
c) any costs, claims loss or damage arising from any information, data or other material provided to Stitch Communications by or on behalf of the Client.
4. You warrant that:
a) at the time of entering into this agreement you are not relying on any representation made by us which has not been stated expressly in this agreement, or on any descriptions or specifications contained in any other document, including any catalogues or publicity material which we have produced;
b) you will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by you onto, or downloaded by you from, the Server does not contain any computer virus and will not, in any way, corrupt the data or systems of any person;
c) you will keep secure any passwords used to upload data to the Server and
d) you hold and will continue to hold the copyright in the Client Data or that you are licensed and will continue to be licensed to use the Client Data.
e) You accept responsibility for all information and material you issue over any Service, and indemnify us and hold us harmless against any liability in relation thereto. In particular you undertake that you shall not publish or issue any information that is illegal or defamatory. You also acknowledge that we do not vet or approve any information or material available through the Service and that we do not accept any liability. To the full extent permitted by law you access and use such information and material at your own risk.
f) You agree to abide by our Acceptable Use Policy and you agree that its terms form part of this agreement between you and Stitch Communications.
g) You are solely responsible for dealing with persons who access the Client Data, and must not refer complaints or inquiries in relation to such data to us.
h) Except as provided in clause 4.2, we are not liable to you or any other person for:
1. any cost, loss or liability (including loss of profit or other consequential damage) arising from our supply or failure or delay in supplying the Service;
2. the content, context or confidentiality of any communications made using the Service;
3. loss or damage caused by third party software applications forming part of the Service.
5. You indemnify us against all costs, expenses, loss or liability that we may suffer (directly or indirectly) resulting from:
a) your breach of these terms,
b) your use or misuse of the Service and
c) the use or misuse of the Service by any person using your account,
d) publication of defamatory, offensive or otherwise unlawful material on any website forming part of your Service.
5. Miscellaneous
1. The Client grants to Stitch Communications a license to use and reproduce all Client Data in order to fulfil its obligations under this agreement. In this agreement "Client Data" means all information, data, text, logos, images, audio, movie clips and/or content in any form that forms part of the Client's web sites or emails.
2. Stitch Communications retains full ownership and/or exercises all rights over software written or customised by Stitch Communications in fulfilment of obligations under this agreement. Stitch Communications grants to the Client temporary use of Stitch Communications software limited strictly to software necessary for fulfilment of this agreement and at the sole discretion of Stitch Communications.
3. A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.
4. The law in force in the Australian Capital Territory governs this agreement and the transactions contemplated by this agreement.
5. You may not resell Services or assign your rights and obligations under this agreement without our prior written consent.
Definitions and Interpretation
In this Agreement:
Allowance means any travel, accommodation or other out-of-pocket expense to be incurred by Stitch Communications associated with the performance of the Services, including, but not limited to, any such allowances as specified in a Project Estimate.
Background Material means any Material owned by, or licensed by a third party to Stitch Communications and used by Stitch Communications for the purpose of providing the Services.
Concepts mean any preliminary ideas, proof of concepts and samples that may be provided by Stitch Communications as part of the Services.
Client Alterations means additional Services that may be required to be provided by Stitch Communications in circumstances contemplated by clause 2.,
Client Material means any Material provided to Stitch Communications by the Client (or at the Client's direction) in connection with the Services.
Services means the services set out in a Project Estimate to be provided by Stitch Communications, from time to time and includes the creation of design concepts, advertising creative and website development.
Project means the final Project created for the Client by Stitch Communications under this Agreement including any new or revised Trade Marks but does not include any Concept revisions created by Stitch Communications as part of the Services which were not accepted or chosen by the Client.
Fees mean the fees set out in the Project Estimate for the Services and includes any additional charges for time and materials for Client Alterations.
GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property means any copyright (including any neighbouring rights), Trade Marks (whether registered or unregistered), trade secrets, Project, drawings, patents, secret processes, business or domain names, or other similar proprietary rights and also includes any rights to the registration of those rights, whether created, formed or arising before or after the date of this Agreement in Australia or elsewhere.
Laws means any applicable Commonwealth, State, Territory or local government statute, regulation, by-law, ordinance, proclamation or subordinate legislation in force from time to time, and includes the common law and equity and any applicable industry codes of conduct.
Material includes documents, reports, agreements (including draft agreements), data, information, software, tools and methodologies, fonts, computer files, Project, graphics, logos, artwork, know-how, templates or other material of any sort and in any form.
Project Estimate means a quote from Stitch Communications to the Client for the provision of Services in accordance with the terms and conditions of this Agreement.
Trade Mark means a 'sign' as defined under section 6 of the Trade Marks Act 1995.