Terms & Conditions
These Conditions of Contract set out below apply to all orders placed by the Applicant or any person or company (“the Customer”) with Divado (ABN 47 151 636 232), each and all of which are referred to as “Divado” and to all contracts for the purchase of Goods and/or Services from Divado Creative Services.
Subject to the provisions set out below in these Conditions of Contract, we draw to your attention the following key conditions upon which Divado’s goods and/or services are provided:
· In the case of the provision of digital services it is your responsibility to check the proofs provided by Divado to you before launch or ensure that the instructions, details and information provided for launch is accurate.
· Unless otherwise agreed in writing, Divado requires payment of its charges before providing any goods and/or services.
· Divado does not guarantee the outcome of any marketing campaign of which the distribution of your materials forms part.
· Divado will not be liable or responsible for any loss or damage to your materials. As with any delivery or common carrier, risk of loss or damage remains with you and you must insure your materials.
· You are responsible for and must indemnify Divado in respect of, any claim, loss or damage, arising out of or relating to, the content of your materials which you give Divado to publish and/or distribute. The content of your materials must comply with all applicable laws. For example, product safety laws, copyright laws, laws prohibiting misleading advertising etc.
Where used in these Conditions of Contract:
“Goods” means the goods to be provided by Divado as may be referred to and provided for in any accepted order or quotation.
“GST” means a goods and services tax imposed under the GST Law.
“GST Amount” means the amount of GST payable in respect of a Taxable Supply calculated by applying the appropriate rate of GST in accordance with the GST Law.
“GST Law” has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999, or, if the Act does not apply for any reason, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia, and any regulation made under the Act.
“Laws” means legislation, regulations, ordinances, codes, or standards.
“Materials” refers to any advertising, promotional or printed material, data, data files, customer details, phone numbers, lists, product and/or other information, material or goods provided by or on behalf of the Customer to Divado for purposes of the Goods and/or Services.
“Personal Information” means information or an opinion about an identified individual, or an individual who is reasonably identifiable, whether the information or opinion is true or not, and whether the information or opinion is recorded in a material form or not.
“Pre-Print Materials” means any logos, images, copyrighted text and/or other data, files, information and intellectual property supplied by or on behalf the Customer to Divado for incorporation into any printed materials.
“Privacy Laws” refers to the Privacy Act 1988 (Cth), the Australian Privacy Principles contained therein, the Spam Act 2003 (Cth), the Do Not Call Register Act 2006 (Cth) and subsequent amendments.
“Services” refers to the services to be provided by Divado as may be referred to and provided for in any accepted order or quotation and may include but not be limited to the supply of Goods, modifying, creating, publishing, launching or releasing services.
“SBC” refers to Small Business Contract under the Australian Consumer Law (Competition and Consumer Act 2010 (Cth), Sch 2).
1. Acceptance of orders & quotations
1.1 All orders for the provision of Goods and/or Services placed with Divado or quotations accepted by the Customer shall be subject to these Conditions of Contract.
1.2 Divado may at any time and from time to time alter these Conditions of Contract and such altered Conditions of Contract shall apply to all orders placed or quotations accepted after notification by Divado to the Customer of the relevant changes.
1.3 Divado is not bound by any variation to these Conditions of Contract unless recorded in writing and signed by a duly authorised officer of Divado. These Conditions of Contract shall apply notwithstanding any provisions to the contrary which may appear on any order form or other document issued by the Customer.
1.4 All quotations are valid only for a period of thirty (30) days and Divado may, in its discretion, refuse any purported acceptance by the Customer which occurs after that time.
1.5 The Customer acknowledges and agrees that it does not rely on any representation made (if any) by or on behalf of Divado in relation to the Goods and/or Services provided by Divado and relies entirely on its own enquiries and evaluations in relation to any such Goods and/or Services.
2. Performance of services and provision of goods
2.1 Divado shall not be responsible for any loss or damage caused by, any failure or delay to provide, the Goods and/or Services including where such failure or delay is wholly or partly due to any cause or circumstance whatsoever outside the reasonable control of Divado.
2.2 Title to the Goods remains with Divado until the Customer pays Divado the full amount owed by the Customer in respect of the Goods and all other amounts payable by the Customer to Divado. Until such time as full payment is received by Divado, the Customer holds all such Goods on bailment for Divado.
3. Digital services
This section 3 applies to digital service forming the whole or part of the Services provided by Divado.
3.1 Divado does not guarantee when delivery and/or launch shall take place and any delivery times or dates in any accepted order or quotation are estimates only. The specific days and times of the provision of Goods and/or Services during the period allocated for the Goods and/or Services shall be at the absolute discretion of Divado.
3.2 Divado will not be liable for any loss or damage caused by or contributed to by any delay, loss, omission or misplacement of Materials during its performance of the Services. For SBCs, the following exception applies to this clause: “except to the extent that such loss or damage was solely and directly caused by negligent act or omission of Divado”.
3.3 Where an order is cancelled more than seven (7) days prior to the proposed provision of Goods and/or Services a cancellation fee of 10% of the agreed or quoted price or the actual costs incurred by Divado at the time of cancellation, including the costs incurred as a direct result of the cancellation, which ever is the greater shall be payable by the Customer. This cancellation fee is not a penalty but is a genuine pre-estimate of damages incurred by Divado.
3.4 Where an order is cancelled less than seven (7) days prior to the proposed provision of Goods and/or Services a cancellation fee of 25% of the agreed or quoted price or the actual costs incurred by Divado at the time of cancellation, including the costs incurred as a direct result of the cancellation, which ever is the greater shall be payable by the Customer. This cancellation fee is not a penalty but is a genuine pre-estimate of damages incurred by Divado.
3.5 Divado reserves the right to refuse, suspend or terminate any provision of Goods and/or Service or future provision of Goods and/or Service at any time by oral or written notice without being liable for any loss or damage incurred by the Customer or any third party as a result if Divado has asked the Customer for further information, clarification and/or to take action (including remedying a breach of this Conditions of Contract) for Divado to provide the Goods and/or Services to the Customer and the Customer failed to do so within a reasonable time as specified by Divado. Should Divado exercise its right to refuse, suspend or terminate any provision of Goods and/or Service under this clause, the Customer will be liable to Divado for the actual cost incurred by Divado to date and any costs incurred as a direct result of exercising its right under this clause.
3.6 Nothing herein conveys to either party any right, title, interest in the other party’s pre-existing intellectual property. All intellectual property rights created by or arising out of the performance of the Services by Divado will vest in Divado (IP). Upon payment of fees due and owing in respect of the relevant Goods and/or Services, Divado grants to the Customer a non-transferable royalty free licence to use the IP for the purposes of enjoyment of the benefit of the Goods and/or Services.
3.7 In creating digital materials for the Customer Divado may submit to the Customer for approval, prior to publishing, distributing or issuing those digital materials in accordance with the Customer’s order or instructions, a draft of those digital materials (“Proof”). Where a Proof is provided by Divado, the Customer must promptly review, check and verify the design and content of the Proof. The Customer releases Divado from and against all liabilities, loss, damage, demands, claims, costs and expenses caused by any inaccuracy or other defect in the digital materials which were present in the Proof reviewed by the Customer. The Customer indemnifies Divado and its employees, agents and contractors against all liabilities, loss, damages, demands, claims, costs and expenses incurred by them as a result of the publication, distribution or issuing of the digital materials including but not limited to any reliance placed by any person on their contents.
4. Risk in customer materials
4.1 Notwithstanding delivery of Materials by the Customer to Divado, all risk in the Materials shall remain with the Customer and the Customer shall indemnify Divado against any loss or damage to the Materials. For SBCs, following exception applies to this clause: “which shall be reduced proportionately to the extent that the loss or damage is solely and directly caused by any negligent act or omission of Divado”. Without limiting the generality of the foregoing, Divado is not responsible for any loss of or damage to Materials which are delivered outside of the timeframes specified by Divado, and/ or, to a Divado delivery address which is not the address specified by Divado.
5. Payment terms, taxes and GST
5.1 Save for defined terms in this Conditions of Contract, capitalised expressions set out in this clause have the same meanings as those expressions in the GST Law.
5.2 Unless otherwise expressly indicated, all amounts relating to a Taxable Supply quoted by Divado or stated in this Conditions of Contract represent the Value of the Taxable Supply and do not include the GST Amount.
5.3 Where a Taxable Supply is made by Divado to the Customer, the Customer will pay to Divado the GST Amount applicable to that Taxable Supply in addition to any other amount payable under this Conditions of Contract in respect of that Taxable Supply (including but not limited to the Service Fee). Unless otherwise specified in writing by Divado, the Customer will pay the GST Amount concurrently with the payment of the earliest of any other amount payable in respect of the Taxable Supply.
5.4 Divado will provide the Customer with a Tax Invoice in a form which complies with the GST Law before any GST Amount is payable.
5.5 Any reference in this Conditions of Contract to a cost or expense which is to be reimbursed by the Customer to Divado excludes any amount in respect of GST forming part of the cost or expense when incurred by Divado for which Divado can claim an Input Tax Credit provided that nothing in this clause will prevent Divado from charging the GST Amount to the Customer in respect of a Taxable Supply for which the cost or expense is Consideration.
5.6 In calculating the Value of the Taxable Supply, Divado’s obligations are limited to those contained in this Conditions of Contract and the GST Law.
5.7 In the event of an increase in the costs of providing the Goods and/or Services caused by circumstances outside of the reasonable the control of Divado, including the imposition of a new direct or indirect tax or impost or levy, and other legislative changes Divado reserves the right to review and vary its pricing.
5.8 All prices, fees and charges set out in this Conditions of Contract, the accepted order or quote are exclusive of all indirect taxes (including but not limited to sales tax, goods and services tax and similar consumption and value-added taxes) and other governmental charges. Divado will separately itemise all such taxes and governmental charges in its invoices and the Customer will pay to Divado all such taxes and governmental charges at the same time as the prices, fees or charges to which they relate are payable.
5.9 Payment of the quoted price is required in the time specified in the accepted order or quotation or as otherwise specified in writing by Divado or if the time for payment is not so specified then the Customer will make payment within fifteen (15) days from the date of Divado.
5.10 Without limiting any other right available to it under these terms and conditions, Divado may increase its fees and charges from 1 January each calendar year, in line with the increase in the consumer price index (CPI All Groups, weighted average of eight capital cities) over the preceding 12 month period.
6. Warranties and indemnities
6.1 These Conditions of Contract do not exclude, restrict or modify the application of any provisions of any Commonwealth, State or Territorial Law which by law cannot be excluded, restricted or modified and should any of these conditions be held to so exclude, restrict or modify then those conditions shall be deemed to be severed from these Conditions of Contract.
6.2 To the extent permitted by law, all terms, conditions or warranties, including as to merchantability and fitness for purpose, relating to the Goods and/or Services supplied by Divado under these Conditions of Contract, whether expressed or implied by law, trade, custom, or otherwise are excluded.
6.3 To the extent permitted by law, Divado liability for any loss, damage or any other claim arising from or relating to the provision of the Goods and/or Services whether in contract, an indemnity, tort (including negligence) or otherwise, shall be limited at Divado discretion to one of the following:
(a) replacing the Goods or supplying the Services again; or
(b) payment of the cost of supplying the relevant Goods or Services in respect of which the loss or damage arose.
In no event will Divado have any liability or obligations of indemnity to the Customer or any other person for any additional loss or liability, including any indirect or consequential loss or damage, resulting from provision of the Goods, Services or otherwise by Divado, including without limitation liability for the costs of replacing any Materials, or in the event of non-delivery of Materials, liability for the production and printing costs of the Materials. Further, Divado’s total liability in all circumstances (including under any indemnity) is limited to the amount paid or payable by the Customer for the relevant Goods and/or Services under the applicable accepted order or quotation at the time of the claim.
6.4 The Customer will and does hereby indemnify Divado its servants and agents against all liability, claims, actions, proceedings, losses, damage, costs and expenses incurred by Divado arising out of or relating to any breach by the Customer of its obligations in these Conditions of Contract, any breach of warranty by the Customer, the content of the Materials and Digital Materials, and any negligent or wrongful or unlawful act or omission on the part of the Customer, its employees or agents.
7.1 Governing Law
The Customer agrees that these Conditions of Contract shall be construed according to the laws of New South Wales, and the parties submit to the jurisdiction of the courts of that state.
Divado may at its discretion sub-contract any or all of the provision of the Goods and/or Services.
(a) The Customer and Divado agree not to disclose information about the terms of this Conditions of Contract, any information (in whatever form) which is by its nature confidential, is designated as confidential or is known or ought to reasonably be known as confidential, including any Divado pricing information except:
(i) to its officers, employees, legal and professional advisors and auditors;
(ii) with the other party’s written consent;
(iii) in Divado’s circumstances, to its subcontractors and agents, on a need to know basis for Divado to provide the Goods and/or Services to the Customer; or
(iv) if the disclosure is necessary to comply with its obligations under an Australian law or regulation, as long as prior written notice of its intention to make that disclosure is given to the other party.
(b) Clause 7.3(a) does not apply to information which is lawfully obtained from a third party or is already known to the other party without any obligations of confidentiality or by way of breach of any obligation of confidentiality, is public knowledge, or is otherwise independently developed by a party without any reference to the other party’s confidential information, which is the subject of clause 7.3(a) above.
7.4 Dispute Resolution
(a) If there is a dispute in connection with these Conditions of Contract, accepted order or quotation, the parties will take the steps set out in this clause to seek to resolve the dispute before taking legal proceedings.
(b) If a party believes a dispute has arisen in connection with these Conditions of Contract, accepted order or quotation that party will give written notice to the other party, adequately identifying and providing details of the dispute.
(c) On receipt of a dispute notice the parties will use their best efforts to resolve the dispute without delay.
(d) This dispute resolution procedure does not prevent a party from applying to a court for urgent interlocutory relief.
7.5 Relationship of Parties
Nothing in these Conditions of Contract is intended to create any partnership, joint venture, agency or employment relationship between the parties.
If any provision of this these Conditions of Contract is held invalid, unenforceable or illegal for any reason, this Conditions of Contract will remain in full force apart from such provision, which will be deemed deleted.
A right created by this Conditions of Contract cannot be waived except in writing signed by the party entitled to that right. Failure or delay of a party in exercising a right under the Conditions of Contract does not waive the party’s rights, nor will a waiver (in whole or in part) by a party of a right operate as a subsequent waiver of the same right or of any other right of the party.
Neither party shall assign its rights or obligations under this Conditions of Contract without the prior written consent of the other party.
7.9 Force Majeure
If Divado is prevented by any circumstances beyond its reasonable control to perform some or all of its obligations under this Conditions of Contract, then Divado will be entitled to delay such performance while such circumstances continue. Such delay does not relieve the Customer of the obligation to pay the applicable fee or price when due. If delivery or performance is delayed under this clause by more than thirty (30) business days then either party is entitled to terminate the Condition of Contract (without liability except liability already accrued).
8. Consumer terms
8.1 In this clause 8, “ACL or Australian Consumer Law” means Australian Consumer Law, Schedule 2 of the Competition and Consumer Act 2010 (Cth).
8.2 The terms and conditions in this clause 8 only applies to Goods and/or Services provided by Divado Web Design to the Customer who is a “consumer” as defined in the ACL.
8.3 Any terms and conditions in this Conditions of Contract which are deemed to be in conflict with the terms of this clause 8 as applicable to the Customer (where the Customer is deemed to be a consumer under the ACL), will not be applicable to the extent necessary to give effect to the terms in this clause 8.
8.4 This clause 8.4 will be interpreted in the context of this Conditions of Contract as if any reference to: “our/us” were a reference to “Divado”; “your/you” were a reference to “Customer”; “contract” were a reference to “Conditions of Contract”; and “service” were a reference to “Service”.
Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:
1. a) to cancel your service contract with us; and
2. b) to a refund for the unused portion, or to compensation for its reduced value.
You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.
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