FLEX THE CORTEX
TERMS AND CONDITIONS
Below are Flex the Cortex’s (will be referred to as FTC) terms and conditions. It is important that you (the client) take the time to read this document thoroughly and ensure you understand these terms and conditions before you commence any project with FTC.
Commencement of work
Agreement to work with and payment of a deposit (if applicable) to FTC constitutes agreement to these terms and conditions.
“The Client” agrees to pay a 50% deposit of the quoted amount to commence any project, with the balance payable prior to delivery.
Once research, resources allocated or design work has commenced on a project, this deposit is non-refundable. In the case of a change of mind by “The Client,” this deposit is non-refundable. FTC endeavours to provide content and creative services that meet and exceed a client’s needs and expectations, but in the event of a “change of mind” (after a project has commenced) by “The Client”, the initial 50% deposit is forfeited.
If at any time during the creative process, “the client” fails to respond to FTC communication, relating to the project, for longer than 2 calendar weeks, it will be at FTC’s discretion to cancel the project and the initial 50% deposit be forfeited.
“The Client” agrees to allow FTC to showcase any/all work created in the course of a project as part of the FTC portfolio. FTC acknowledges the confidential nature of projects and agrees to only display project work once product/service has been publicly launched.
FTC will first send an email to “The Client” requesting approval to do so. Under no circumstances, FTC will publish content without “The Client’s” consent.
FTC shall not be liable for any failure or delay in supply or delivery of products/services where such failure or delay is wholly or partly due to any cause or circumstances whatsoever outside the reasonable control of FTC. Including but not limited to war, natural disasters, strikes, lockouts, industrial disputes or unrest, government restrictions or transport delays, fire, power outages, failure attributable to hosting suppliers, breakdown of plant, theft, vandalism, riots, civil commotions, accidents of any kind or act of terrorism.
Scope of Work
FTC may make any changes to the Scope of Work, design, materials or functionality of the deliverables or provision of the Services:
(a) which are required to comply with any applicable legal or regulatory requirements;
(b) are required or advisable to prevent the services and/or deliverables infringing third party rights, including Intellectual Property Rights; or
(c) which in Flex the Cortex Design’s reasonable opinion, do not materially affect the quality or performance of the Services.
If at any time “The Client” wishes to make any alterations to all or any part of the services including the Scope of Work, and/or Customer Materials and/or data then “The Client” will provide FTC with full written specifications of such alterations and with such further information as FTC may require.
FTC will either decline to undertake such alterations or will submit to “The Client” a quotation for such alterations specifying what changes (if any) will be required to the services including fees and the deliverables.
Upon receipt of such quotation “The Client” will either:
(a) accept such quotation, in which case the services will be deemed to be amended accordingly; or (b) withdraw the proposed alterations in which case the agreement will continue in force unchanged.
Customer Materials (Content & Images)
Where FTC is supplied with Customer Materials or is requested to use specific material by the Customer when undertaking the Services:
(a) FTC will not be liable for any delay in or inability to perform the Services or for any additional costs incurred in the performance of the Services or for any defect or error in the Services or Deliverables or errors in or additional costs associated with their delivery to the extent that such delay, inability, costs, defect or error were caused by defects in or unsuitability of the Customer Materials or specified materials, or the Customer’s failure to supply the Customer Materials to FTC in the manner (including regarding format and method of delivery) directed by FTC, if being noted and agreed that FTC may not be able to identify defects in the Customer Materials or specified materials, or the unsuitable nature of the Customer Materials or specified materials until production has commenced, and where additional costs are incurred by FTC such costs shall be recoverable from the Customer;
(b) FTC may reject any of the Customer Materials or specified materials which in its opinion are unsuitable;
(c) FTC may, if the Customer Materials or specified materials are found to be unsuitable during production or have been supplied to FTC otherwise than in the manner (including regarding format and method of delivery) directed by FTC, charge the additional production costs incurred by FTC to the Customer after notifying, where possible, the Customer in writing of the unsuitability of the Customer Materials or specified materials; and
(d) FTC accepts no responsibility for imperfect work caused by defects in or unsuitability of the Customer Materials or specified materials.
Legal Authorization for Publications
The Customer is responsible for obtaining, at its own cost, all necessary consents, clearances, and authorisations which may be required by all applicable law and any regulatory and other authorities or commercial providers in respect of its receipt of the Services and use of the Deliverables. In particular, the Customer agrees that it, and not FTC, is responsible for ensuring the use of the Customer’s own and any third party photographs, images, sounds and text in the Deliverables does not infringe third party Intellectual Property Rights, whether those third party materials are sourced by the Customer or by FTC on the Customer’s behalf.
This is defined as any work involving additions to the list of items defined in the Estimate of Services or changes to all pieces of finished work after sign-off by an authorised representative of “The Client”. From time to time “The Client” will require extra requirements during a project, or extra files upon completion of a project. The client will be informed that the alterations or changes requested fall outside the scope of the original estimate. If the client wishes these alterations to be made, a new estimate will be issued by FTC addressing the new requirements and the associated cost. Work can only commence once estimate has been signed off.
Publication and/or release of work performed on behalf of the client by “FTC” may not take place before cleared funds have been received.
Any booking fees, delivery fees, design commencement fees, or progress payments are non-refundable once work has commenced if the contract is terminated by the client, after work has commenced.
Liability & Litigation
It is agreed that all work and materials provided for “The Client” by “FTC” will be free and clear of all liens and encumbrances and may be lawfully used by “The Client” without infringing upon the rights of others including, and without limiting the generality of the foregoing, any copyright trade secret patent or trademark rights of any third party.
It is agreed that “FTC” indemnify and hold “The Client” harmless from and against all claims for injury or death to persons or damage to property (including cost of litigation and legal fees) caused by, arising from or incidental to the services to be performed during the performance of the work outlined, except any such claims which are caused by the negligence of “The Client” or its employees, and it is agreed that we shall notify “The Client” in writing of full details of any such claim.
Under no circumstances shall FTC be liable to “The Client” for an indirect or consequential loss suffered by “The Client” relying on the information included in the supplies prepared by FTC including (without limitation) loss of profit, loss of contracts or pure economic loss. Any liability is strictly limited to the direct losses associated with remedial costs of the supplies only, not to include claims for delays, out of sequence working, non-productive overtime, an award of costs, etc. Liability to any third party for any reason is specifically excluded unless separately agreed in writing.
Approval of Final Work
While FTC takes all care to avoid errors, FTC accepts no responsibility for typographical errors, spelling mistakes, or incorrect information on any project committed to print or production. It is “The Client’s” responsibility to proofread and approve all final copy before the production of work. The email verification of the Client’s representative shall be conclusive as to the approval of all deliverables prior to their release for printing, implementation or installation. No refunds or reprints are given after a final approved deliverable has gone to print due oversights by “The Client’s” proofreading.
FTC retains full ownership of design concepts and materials it produces. Once a final concept is delivered to a client and full payment is received, complete ownership rights to the concept transfer to the client. Unused concepts remain the property of Flex the Cortex. FTC may still use paid-for concepts in its promotional materials and in its design portfolio. Unless the client requests otherwise, FTC retains the right to display a small design credit on works it produces, except for corporate stationery.
This granting of copyright does not extend to the use of design proposals and concepts submitted to but not approved for the work outlined. Until the final payment, FTC retains ownership of all the work produced. FTC reserve the rights to certain elements used to create your projects including RAW files, fonts, patterns, stock images, textures, colour palettes, and other non-exclusive items.
FTC reserve the right to use stock images in the creation of designs if required. Costs of this will be outlined to the client prior to purchase if not included in the proposal quote.
Other than for the promotional use of FTC all services provided shall be for the exclusive use of the client’s said purposes only. Designs may not be used for other promotional items, website or printed materials without permission. Upon payment of all invoices, reproduction rights for all approved final designs created by FTC shall be outlined in the Project Proposal. For additional usage, the price will be assessed as needed.
In accordance with the Australian Copyright Act (1968), ‘licensing of copyright is subject to a mutual agreement made between client and designer’. Copyright will remain property of FTC till such time an agreement is in place. As part of FTC terms of business, the copyright licence is automatically released to the client on receipt of the final payment for the commissioned work. FTC reserve the right to use all artwork produced, concepts produced in the course of the project (including those concepts not selected) and revisions for the purposes of promoting FTC in print or digital media portfolios, social media, and blogs, except where the client has specifically requested in writing otherwise.
This proposal assumes goodwill from both FTC and “The Client” regarding:
What can reasonably be achieved in a given time frame
Making the best use of resources to achieve the most effective outcomes
Resending Uploading Files
If a client loosed or accidentally deletes the files delivered by FTC upon completion of the project, FTC may be able re-upload to DropBox or Google drive, for a fee of $100 per request (plus GST). Providing the request from the “Client” has been made within 2 years from the date of completion.
Artwork on DVD or USB Drive
If any client artwork is required on CD/DVD, an administration fee of approximately – $50 plus courier/ postage will be payable.
Some of Flex the Cortex clients come from outside Australia. Being a niche market we are global specialists in the field of Brand, Content, Digital Experiences, Research and Innovation and as such create work across the world, using contemporary communication methods such as Skype, DropBox, Google Suite, Cisco, email and chat, along with the more traditional devices such as a telephone.
From time to time circumstances beyond the control of either party may result in the need for project cancellation. In the event of the client cancelling a project after a project has commenced, the advance payment (deposit) will be forfeited in lieu of compensation to FTC. This is to cover design and administration time spent, resources purchased and allocated, research time and administration costs. If a project is cancelled by FTC, due to unforeseen circumstances, the deposit will be refunded in full to the client in a timely manner.
In the event of cancellation of the project by the client, ownership of all copyrights and the original artwork and disks shall be returned and retained by the Flex the Cortex.
Website design credit
“The Client” agrees to allow “Flex the Cortex” to place a small credit on printed material exhibition displays, advertisements and/or a FTC on the “Client” website. This will be in the form of a small logo or line of text placed towards the bottom of the page.
“The Client” also agrees to allow “FTC” to place websites and other designs, along with a link to the client’s site on “FTC” own website for self-promotional purposes.
Website design post- completion alterations
Once web design is complete, “FTC” will provide the customer with the opportunity to review the resulting work. “FTC” will make one set of minor changes at no extra cost within 14 days of the start of the review period. Minor changes include small textual changes and small adjustments to the placement of items on the page. It does not include changes to images, colour schemes or any navigation features. Any minor changes can be notified to “FTC” by e-mail. “FTC” will consider that the client has accepted the original draft, if no notification of changes is received in writing from the customer, within 14 days of the start of the review period. An hourly fee after this time for tweaks and amendments is payable of $50 per hour plus GST if applicable.
It is agreed that employees of “FTC” shall not at any time either during the continuance of the work outlined or thereafter, except in the course of their duties, divulge any of the confidential affairs of “The Client” or any of its clients or associated companies to anyone whatsoever without the previous consent in writing of “The Client”.
Late payments & Default
Accounts that are not paid within 15 days will incur a late administration fee of $50 + GST. Accounts which remain outstanding for 30 days after the date of invoice will incur an additional late payment fee equivalent to 7% of the project costs for each week payment is outstanding.
An account shall be considered in default if it remains unpaid for 30 days from the date of invoice or “The Client” has stated expressly that they do not intend to pay an invoice by “FTC” unless prior arrangements have been made. “FTC” shall at its sole discretion suspend any and all services provided to “The Client” by “FTC” or its subsidiaries (including but not limited to research, findings, hosting, websites designed files, concepts, artwork, reports, insights, and email) and employ debt collection measures until the total outstanding balance has been fully paid. This includes any and all unpaid accounts due for services ordered, including, but not limited to design, hosting, domain registration, search engine submission,
maintenance, subcontractors, printers, photographers and libraries plus bank interest calculated daily for each day payment is overdue.
Suspension of such services does not relieve the client of its obligation to pay the due amount. Files on external servers, such as hosted e-commerce solutions will be removed and held until payment is made or for 30 days until the client has paid for their invoices in full.
“The Client” whose account is in default agree to pay “FTC” reasonable legal expenses and third-party collection agency fees in the enforcement of these Terms and Conditions.
“FTC” retains all copyright for work performed until full project costs have been paid. “FTC” reserves the right to reuse or resell work undertaken in the case of a payment default.
“FTC accepts no liability or responsibility for loss of income or damage to the client for work removed from third party servers, as a result of non-payment and “The Client” will not take legal action for any situation arising from invoice disputes or removal of the disputed work in such cases.
Amendments to these Terms and Conditions
All and any amendments to the terms and conditions outlined in this submission must be provided in writing by “The Client” and signed by an authorised representative of “FTC” prior to the commencement of the work outlined in this submission.
Freelance contractors and confidentiality
All contractors employed by “FTC” are held to a strict confidentiality and nondisclosure agreement.
Research, insights, data, design, strategy, photography, illustration, writing and marketing are all highly creative and subjective art forms. As such “FTC” takes every possible care with professional advice offered and any suggested creative concepts and/or their implementation, however “FTC” cannot be held responsible for variations between expectation and outcome.
All information contained in our website is intended for general information purposes only. The information is provided by “FTC”. We try to keep the information up-to-date and ensure that it is correct, however, we make no warranties of any kind concerning the accuracy, completeness, suitability, reliability, or availability of the information contained in this website, or any products, services, links, or graphics that may be found on this website. Use this information at your own risk. “FTC” will not be held liable for any loss or damage, or loss of data from your use of this website, or in connection with this website. This includes indirect or consequential loss or damage. “FTC” has no control over websites that are linked to on this website.
Those third-party websites are under the control of their owners, and “FTC” will not be held liable for your use of those websites. By linking to these sites, we are not endorsing or recommending any information or views expressed in the content on those sites.