Terms of service

TERMS AND CONDITIONS

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

1. TERMS OF AGREEMENT
1.1. An Agreement in respect of any Work or proposed Work shall constitute the entire agreement
between LitDesign 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.

2. PRICE
2.1. 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 an quotation.
2.3. Prices contained in quotations are valid for 90 days; however LitDesign may amend a quotation
prior to acceptance in the event of any increase in the cost of relevant products or services
supplied by third parties.
2.4. 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 LitDesign may pass that increase on to the Client.
2.5. Prices for proposed Work do not include costs of couriers or other third party modes of delivery.
Couriers will be used by LitDesign to deliver Work Product in accordance with its standard
practices and these Terms & Conditions. Costs of couriers will be charged to the Client as extras.
2.6. Prices for Work or proposed Work do not include labour costs and other costs and expenses
incurred by LitDesign as a result of:
(a) Variations; or
(b) progress delays for reasons not attributable to LitDesign.
Unless otherwise agreed in writing, such costs and expenses will be charged to Clients at
LitDesign’s then prevailing prices and/or hourly rates in relation to the relevant Work and invoiced
at LitDesign’s discretion.
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(a) in the event that clause 4.3(a) applies, when such goods are collected by a carrier from
LitDesign’s premises; or
(b) in the event that clauses 4.3(b) or 4.4 apply, upon the date upon which the notice is given.
4.6. Risk in respect of any item of Work Product passes upon delivery or deemed delivery in
accordance with clause 4.5.
4.7. In the event that clauses 4.3(b) or 4.4 apply, the Client shall collect and/or accept handover of such
Work Product within 7 days of the date of the notice. If the Client does not do so and:
(a) the Client has paid for the Work Product in full, LitDesign may: (i) charge the Client a
reasonable amount for storage of such Work Product; and (ii) upon the expiry of 60 days
after the date of the notice, resell the Work Product or any part of it and pay the proceeds
to the Client; or
(b) the Client has not paid for the Work Product in full, LitDesign may: (i) charge the Client a
reasonable amount for storage of any such Work Product; and (ii) upon the expiry of 21
days after the date of the notice, resell the Work Product or any part of it and apply the
proceeds towards the amount due from the Client.
5. TIME AND QUANTITIES FOR DELIVERY
5.1. 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.
5.2. LitDesign shall not be responsible for delivery delays resulting from Variations or payment delays
by the Client.
5.3. In the event that the Client requires Work to be undertaken on an expedited basis, LitDesign will
use its best efforts to secure freedom from artwork errors and production/manufacturing problems
such as wet ink but cannot warrant that such errors or problems will not occur. Additional costs
may apply for overtime being worked or other additional costs or expenses being incurred by
LitDesign to necessitate such expedited Work.
5.4. Every endeavour will be made to deliver the correct quantity of printed items, but owing to the
difficulty of producing exact printed quantities, an Agreement to produce a given quantity of
printed items, irrespective of the number of colours, shall be subject to a margin of 10 percent
being allowed for shortages which, on request of the Client and upon verification of the shortage,
will be deducted in proportion to the price of those items.
6. CLAIMS
6.1. 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.
6.2. 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.
7. INTELLECTUAL PROPERTY
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7.1. The Client warrants that no text or imagery supplied by the Client to LitDesign 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 LitDesign otherwise becoming liable to any third party.
Without limiting such warranty, LitDesign may at its absolute discretion refuse to set up, print or
deliver any matter which in its opinion may expose LitDesign or any of its employees or agents to
any action, claim, demand, or proceeding whatsoever.
7.2. Where the Client has informed LitDesign of the intended use of Work Product, the Client warrants
the accuracy of such information.
7.3. LitDesign will not, in the creation or production of Work Product for the Client, knowingly infringe
any other person’s intellectual property rights. However LitDesign 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.
7.4. Upon receipt by LitDesign of payment in full for any Work Product LitDesign 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 LitDesign’s legal costs, if any, of seeking advice on such assignment or acknowledgment).
7.5. 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
LitDesign unless otherwise agreed in writing. Fees may apply to granting of further usage rights in
respect of such concepts and designs.
7.6. If Work involves photographs being created by LitDesign 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.
7.7. If Work involves images sourced from image libraries, then use of those images will be subject to
the terms of those image libraries. If LitDesign 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.
7.8. Notwithstanding any other provision in these Terms & Conditions, Author Materials used by
LitDesign or its suppliers in creation of Work Product shall remain the sole and exclusive property
of LitDesign or the relevant supplier(s).
7.9. Unless otherwise agreed in writing, the Client grants to LitDesign 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 LitDesign, the
authorship acknowledgement includes hyperlink(s) to LitDesign’s designated website.
8. WEBSITES AND WEB-BASED SYSTEMS
8.1. Unless otherwise stated in a relevant Agreement, websites and related systems designed by
LitDesign are transportable and may be moved to another hosting provider upon receipt of full
payment for the relevant Work Product. To enable the Client to copy or move a website LitDesign
shall, upon request by the Client, provide in a timely manner either: a digital copy of the complete
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website; or FTP access details for the host-server to enable the Client to arrange copying or
moving the website.
8.2. LitDesign will make reasonable efforts to propose a hosting plan that is appropriate to the Client’s
needs as communicated to LitDesign by the Client in writing. However, it is the Client’s
responsibility to ensure that any proposed hosting plan is acceptable and appropriate to its needs.
LitDesign is unable to predict exact disk space needs or potential data transfer generated by a
website.
8.3. Where LitDesign provides hosting services for a Client, those services are subject to LitDesign’s
hosting terms and conditions and acceptable use policy, available on request or online at
www.LitDesign.com.au. Those terms and conditions and policy shall, to the extent of any
inconsistency, prevail over these Terms & Conditions.
8.4. The Client acknowledges and agrees that LitDesign is in the business of designing and hosting
websites and that LitDesign will have the right to provide to third parties services which are the
same or similar to services provided to the Client and to use or otherwise exploit any Author
Materials in providing such services.
8.5. Unless otherwise stated in a website proposal, pricing only includes bug-fixes and support for up to
2 months (60days) after the site is live. Any further fixes or support after this time will be charged
on an hourly basis. All fixes required as a result of client edits/errors in the CMS will be chargeable.
9. PROOFS AND AUTHORS CORRECTIONS
9.1. Any quotation given to the Client involving typesetting and/or imagery is given on the assumption
that legible copy and/or images will be supplied (with accents, if applicable, clearly marked).
Quotations provide for only one proof and the cost of additional copies will be charged to the
Client. The cost of any additions or alterations to the copy, re-arrangements of type, layout,
cancelled matter etc. requested by the Client once the finished or manufacturer’s proof is
submitted will be charged to the Client. No responsibility will be accepted by LitDesign for errors in
Work Product where such errors appeared in proofs approved by the Client. The cost of additional
proofs requested by the Client or required by LitDesign to facilitate approval of a proof without
Client/author corrections will be charged to the Client.
9.2. Quoted prices include PDF mock-ups or proofs of designs and artwork prior to
manufacturing/print production. Mock-ups and proofs of large format items will be scaled down. If
hardcopy proofs or mock-ups, or actual-sized proofs are required, then these must be requested
and paid for by the Client in addition to quoted prices.
9.3. If the Client does not request, or wish to pay or wait for, a digital proof of an item to be
manufactured using a digital imaging process, then the Client accepts full responsibility for the cost
of reprinting or other manufacturing costs resulting from: design, artwork, tooling, reproduction or
manufacturing faults or errors.
9.4. The Client acknowledges that due to differences in digital and mechanical colour reproduction
methods and differences between colour reproduction on different materials, colours may vary
between colour proofs and the final printed item.
10. MATERIALS SUPPLIED BY CLIENTS
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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 LitDesign. Additional costs apply for any additional Work required
to be performed to attain such quality or specifications.
10.2. LitDesign 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 LitDesign 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 LitDesign.
10.3. LitDesign 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 LitDesign by or on behalf of the Client (including goods in transit) shall
remain at the Client’s risk and LitDesign 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 LitDesign after completion of
relevant Work, LitDesign 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.
11. WARRANTIES AND LIMITS OF LIABILITY
11.1. Subject to clause 11.3 and to the maximum extent permissible by law, LitDesign 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 LitDesign in tort (including negligence),
contract or otherwise resulting in costs, losses, liabilities or damage suffered by the Client.
11.2. LitDesign 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 LitDesign 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 LitDesign 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 LitDesign to limit its liability for a breach of a consumer guarantee, then LitDesign’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
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(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 LitDesign knows such loss or
damage is possible or foreseeable.
12. FORCE MAJEURE
Work may be suspended or cancelled by LitDesign 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 LitDesign to procure necessary materials or articles or any other cause beyond the
control of LitDesign and no responsibility will be attached to LitDesign for any delay, loss or
damage occasioned thereby.
13. ELECTRONIC STORAGE
13.1. Unless otherwise agreed in writing, LitDesign shall have no responsibility to archive, store or
otherwise maintain a record of Work Product once that Work Product has been delivered to the
Client. In the event that, notwithstanding the above, LitDesign is asked to search for and, if found,
re-supply such a record to the Client, LitDesign will have the right to charge for such services.
13.2. If LitDesign is provided with data on storage devices by the Client, LitDesign will assume that such
storage devices contain duplicate copies of material stored elsewhere and shall accept no
responsibility for the loss of data which may occur during the handling of such storage devices.
14. INDEMNITY
The Client shall indemnify and hold LitDesign harmless from and against, all costs, losses, charges,
expenses, liabilities, damages, fees and disbursements (including all reasonable legal costs) paid or
incurred by LitDesign 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 LitDesign by the Client.
This indemnity survives termination of this Agreement.
15. NO WAIVER
A waiver by LitDesign of any provision of these Terms & Conditions shall not operate as a waiver of
any other provision of these Terms & Conditions.
16. SEVERABILITY
If any provision in these Terms & Conditions, or if the application of any such provision to any
person or circumstances, is invalid or unenforceable, the remaining provisions of these Terms &
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Conditions are not affected and each such remaining provision is valid and enforceable to the
fullest extent permitted by law.
17. 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.
18. DEFINITIONS and INTERPRETATION
18.1. 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 LitDesign.
“Client” means:
(a) where a Proposal has been accepted in writing, the person or entity named as the Client in
the written acceptance; or
(b) where a Proposal has been impliedly accepted, the person or entity to whom the Proposal
was addressed; or
(c) where LitDesign undertakes Work as a result of Work Instructions given by a person or
entity who has signed a Credit Application, the person or entity named on the Credit
Application; or
(d) where LitDesign undertakes Work as a result of Work Instructions given by a person or
entity who has not signed a Credit Application, the person or entity by or on behalf of
whom the Work Instructions were given.
“Credit Application” means any application for a credit account made to and accepted by
LitDesign.
“LitDesign” means Digital Journey Pty Ltd ACN 603 410 699 trading as LitDesign.
“Proposal” means any document or documents provided by LitDesign to the Client in respect of
proposed Work concerning either or both of:
(a) the scope; and
(b) the price
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of the proposed Work and either expressly or impliedly accepted by the Client, including any
amendments thereto made in writing.
“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 LitDesign) 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, given to
LitDesign; or
(e) omissions, oversights, changes or errors by the Client.
“Work” means any work undertaken by LitDesign 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 LitDesign 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
LitDesign 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).
18.2. Whenever in these Terms & Conditions the term “in writing” is used in respect of:
(a) an agreement, it means by document signed by LitDesign 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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