1. Provision of Services
1.1 Diop Design. Mailing address PO Box 145, Erskineville, NSW 2043 ABN 96 445 184 685, will provide you with the services set out in your confirmed Purchase Order. Only those services mentioned will be provided by DIOP DESIGN and any amendments, add ons or schedule changes must be agreed to in writing. This and the following clauses are the General terms and conditions on which those services are supplied and together with the Purchase Order and Fee Schedule form the total agreement between us.
2. Costs and Payments
2.1 You must pay all charges as set out in the Purchase Order. As prices quoted on Diop Design material may change at any time without notice, please check the price on your Purchase Order before confirmation.
2.2 You will remain liable for all fees during any period when Services have been discontinued or suspended due to a failure on your part to comply with these terms and conditions
2.3 You will be invoiced as agreed in your purchase order. All accounts are payable before delivery of final artwork or uploading of final files to live sites.
2.4 You are liable to pay overdue interest at 5 % /week on any amounts not paid within 7 days of invoice. All intellectual property rights remain with Diop Design until payment.
2.5 You must pay DIOP DESIGN's charges without any set off, counter claim or deduction unless same is agreed in writing between us.
2.6 Diop Design reserves the right to prioritize early paying clients and to charge urgency fees for turnaround within 3 working days. (VIP status)
2.7 Agreed Costing is conditional on your supplying data required for a Website Stage or completion deadline agreed within 10 working days of confirmation of Order. Diop Design reserves the right to revise costings if that condition is not met in line with charges applying at the relevant time.
2.8 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. Delivery being :Supply of final artwork digital files to printer, on disk, via email or uploaded to nominated ISP.
2.9 Printer or ISP Liason is charged at our current rate per hour.
3. Limitation of Liability
3.1 All terms conditions, warranties, undertakings inducements and representations, whether express or implied, statutory or otherwise relating to the provision of services by DIOP DESIGN not contained in the Agreement are excluded and DIOP DESIGN WILL NOT ACCEPT LIABILITY FOR ANY LOSS OR DAMAGE (INCLUDING CONSEQUENTIAL LOSS OR DAMAGE) HOWEVER CAUSED (WHETHER BY NEGLIGENCE OR OTHERWISE) WHICH MAY BE SUFFERED OR INCURRED OR WHICH MAY ARISE DIRECTLY OR INDIRECTLY with respect to the service.
3.2 Where any applicable legislation implies any term, condition or warranty into the Agreement or in respect of DIOP DESIGNÈs relationship with you, or otherwise gives you a particular remedy against DIOP DESIGN and the legislation or any other legislation renders void or prohibits provisions excluding or modifying the application of, exercise of, or liability under such implied term, condition, warranty or remedy will be deemed to be included in the Agreement or as the case may require apply to the relationship between DIOP DESIGN and you. However, DIOP DESIGNÈs liability for any such breach of such implied term, condition or warranty or under such remedy, will be limited, at DIOP DESIGN's option, in any one or more of the ways permitted in that legislation, including, where so permitted if the breach relates to Services the supplying of those services again or the payment of the cost of having those Services supplied again.
3.3 You acknowledge that web sites cannot be guaranteed to be 100% error free in construction and acknowledge that the existence of errors falling short of a complete failure of consideration in the site shall not constitute a reason to terminate this agreement.
4. Suspension of Services
4.1 DIOP DESIGN reserves the right to suspend services in any case where you fail to perform your obligations under this agreement. If payment for services is not received within the terms of payment stipulated by us websites may be taken down until payment is confirmed.
4.2 DIOP DESIGN may from time to time and without notice or liability to you suspend any of the services if the reason for doing same is an event beyond the reasonable control of DIOP DESIGN.
5. Termination
5.1 DIOP DESIGN may discontinue services if an amount payable to Diop Design is overdue or take down a website permanently in any case where an amount payable is overdue by more than 7 days. In any such event, you remain liable for the total cost of the contract including all disbursements; unless otherwise agreed between the parties.
6. Contents of Web Pages and Undertakings
6.1 You will be solely responsible for the content of your Web Page/undertakings. Diop Design is not responsible for proofreading any content unless specifically agreed.
6.2 Diop Design makes no representations to you concerning the content or functionality of your Web Site. This is your responsibility to ensure that it meets your requirements.
6.3 If you provide DIOP DESIGN with goods, material, photographs, film, data or information to be used in any form, you hereby warrant that these do not infringe the rights of third parties and indemnify DIOP DESIGN against any action taken against DIOP DESIGN by any such third party.
6.4 Without limiting the generality of the foregoing, you agree not to infringe the copyright trademark, privacy or personal or proprietary rights of third parties, supply libelous, abusive, obscene material or disparage the products or services of any third party.
6.5 DIOP DESIGN for its part hereby undertakes not to knowingly infringe the rights of third parties in activities conducted on your behalf.
6.6 You are solely responsible for dealing with persons who access your data or webpage and warrant that you will not refer complaints or inquiries in relation to such data to us.
7. Technical Support, Changes and Maintenance
7.1 Technical assistance via telephone or email will be offered Extensive queries taking more than 15 minutes to deal with or site maintenance will be charged at hourly rates. See particulars of hourly rates in our Fee Schedule.
8.1 If you choose to organise your web hosting arrangements yourself, final exported sites will be uploaded to your preferred host company or supplied on disk to you at the cost set out in the Fee Schedule section on our web page. Construction files of the site can be supplied on request at the Fees set out in the Fee Schedule.
8.2 Please note that Diop Design accepts no responsibility for delays or down time, breakdowns or data loss caused by Internet Service Providers (ISPs)
9. Dispute Resolution
9.1 The parties agree that if any dispute should arise under this agreement, attempts in good faith by both parties will be made to resolve the matter fairly before resorting to court procedures. In doing so, each party agrees to use its best endeavours to:
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Clearly communicate in writing the background facts leading to or causing the dispute
- Set out clearly what action is required to settle the dispute
- Select a way of resolving the dispute and explain why that way of resolving the dispute can be said to be a fair resolution
- Discuss specific means of avoiding such disputes in the future
9.2 Attempts to resolve the dispute must follow the following procedure:
b) The person to whom the complaint is addressed will reply in writing within 10 business days to each issue in dispute setting out its perspective on the issue and the outcome desired.
c) If the dispute is not resolved in accordance with this exchange of written issues and outcomes, then the complainant will raise the matter with a neutral professional adviser or Alternative Dispute Resolution (ADR) provider listed in a relevant publication of the Department of Workplace Relations and Small Business or similar government department within 10 business days.
d) If the dispute is not resolved in accordance with such reference, the matter shall be referred to a single agreed arbitrator within 10 business days; whose decision shall be final.
e) In the case of disagreement on the appointment of a single arbitrator, then the parties shall be entitled to nominate one independent arbitrator with 7 days of disagreement and a coin will be tossed by an independent person to decide which will act as arbitrator of the dispute.
f) Action taken to settle the dispute at each stage must be undertaken promptly and the parties shall equally share the costs associated with the this dispute settlement procedure.
10. Intellectual Property
10.2 Diop Design retains the Copyright in and the right to use all artwork created in advancing the profile of Diop Design and to be recognized for artwork created by Diop Design.
10.3 Diop Design shall be free to reproduce, use, disclose display exhibit, transmit, perform, create derivative works, and distribute any item from your Web Page unless specifically agreed otherwise. Further, Diop Design shall be free to use any ideas concepts know-how or techniques acquired in construction of sites for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products and other items incorporating such information unless specifically agreed otherwise.
11. General
11.2 Written communications between us may take the form of letters, formal documents, faxes or emails.
11.3 Diop Design may require a personal guarantee from the Director of a company in cases where files/artwork is required before payment.