Terms & Conditions
1. Scope of Services
The Client hereby engages The Eatery Group to provide the services set forth in the estimate or quote.
The Eatery Group agrees to provide any work product to be delivered as part of the Services by a mutually agreed upon date, which will be set out in writing by the Parties. The Client acknowledges and agrees that failure to submit required information or materials requested by The Eatery Group may cause subsequent delays in the work product, for which The Eatery Group will not be responsible. Each Party will make a good faith effort to notify the other Party of any upcoming delays.
- Each Party will designate a representative, which will be responsible for receiving instructions and delivering work product (if The Eatery Group) and providing instructions as well as receiving and accepting any work product (if the Client).
- The Eatery Group agrees to provide all original work, which will not be copied in whole or in part from any other work and will not use any third-party content to incorporate into the work product, unless The Eatery Group has secured the rights to said third-party content. Content provided by the Client for incorporation into the work product, will not be subject to this clause.
- If you acknowledge and accept an estimate or quote – verbally or via email (preferred) or in writing, it is considered permission to commence work.
2. Payment Terms
The Client agrees to pay a 50% deposit* of the estimated amount to commence any design project, with the balance payment due prior or upon delivery, unless otherwise agreed.
If the work time exceeds four (4) calendar weeks in duration, the Client agrees to a progress payment of 50% of the balance per month until the conclusion of the project, with any outstanding amount payable in full upon 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. The Eatery Group endeavours to provide design 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, plus a pro-rata payment based upon the time spent.
All projects with print production or any other external supplier costs must be settled in full prior to the release of the files to the supplier.
Accounts, which are not paid COD will incur a late administration fee of $20 excluding GST. Accounts, which remain outstanding for 31 days after the date of invoice will incur an additional late payment fee equivalent to 5% of the project costs for each week payment is outstanding. If you are having difficulty paying your invoice, please get in touch as soon as you are aware of the issue, so we can discuss a solution that works for your company.
All prices estimated are in Australian Dollars ($AU) and are exclusive of GST.
3. Alterations and Authors Corrections
It is agreed that the fee for service shall be the cost estimates provided via email, unless work undertaken exceeds work outlined. The Eatery Group makes every effort to be as cost effective and accurate as possible, but extra inclusions or exclusions may occur based on specific jobs or requirements.
All estimates by The Eatery Group include one (1) round of changes (up to and including v2), unless otherwise specified. Any changes above this are considered Authors Corrections and the Parties will work in good faith to adjust the timeline and costs accordingly. Wherever possible the Client will be notified of increases in the scope of the project.
In the case of a considerable change to the scope of the project or brief, the current project will be invoiced for time incurred to-date and a new estimate outlining the revised scope of work will be generated for approval before the project continues.
From time to time the Client will require extra design 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 of the scope of the original estimate. If the Client wishes these alterations to be made they must agree in writing (via email), and The Eatery Group’s hourly rate of $170 excluding GST per hour will be payable.
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.
4. Urgency Fee
An urgency fee of 100% will be applicable to projects where the client has requested work within a time frame that The Eatery Group regards as either (a) short notice, (b) unreasonable, or (c) outside of business hours trade (Monday to Friday 9am to 6pm). The Eatery Group will always advise reasonable timeframes for all projects in accordance with the agency’s current schedule and availability.
In the event The Eatery Group has caused a delay leading to outside of business hours trade, then no surcharge shall apply.
5. Independent Contractor
The Eatery Group understands that it is acting as an independent contractor, that The Eatery Group is solely responsible for its actions or inactions, and that nothing in this Agreement shall be understood to create an agency or employment relationship between the Client and The Eatery Group for any purpose.
6. Confidential Information
Each Party is likely to disclose information (“Disclosing Party”) to the other (“Receiving Party”) from time to time during the term of this Agreement, which is marked or designated as confidential or proprietary at, or prior to disclosure, or which would appear to be confidential and/or proprietary in nature (“Confidential Information”). The Receiving Party will not disclose such Confidential Information to any person other than as provided for in this Agreement or as necessary to carry out that Party’s obligations under this Agreement.
This restriction does not apply to information that (i) the Receiving Party must disclose by law or legal process, (ii) is either already public or enters the public through no fault of the Receiving Party, (iii) is available to the Receiving Party from a third party who is not under any non-disclosure obligation to the Disclosing Party, or (iv) is independently developed by or for the Receiving Party without reference to any Confidential Information of the Disclosing Party.
7. Title To Material
The Eatery Group retains full ownership of design concepts and materials it produces.
Once a final project is delivered to the Client and full payment is received, complete ownership rights of the final supplied files or assets as stated in the estimate (eg; print ready PDF as per supplier requirements) transfer to the Client, however, please note that any physical working files such as InDesign packaged files are excluded - refer to Clause 5 for further details).
Unused concepts remain the property of The Eatery Group. The Eatery Group may still use paid-for concepts in its promotional materials and in its design portfolio. Unless the Client requests otherwise, The Eatery Group retains the right to display a small byline claiming 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 final payment is received, The Eatery Group retains ownership of all artwork, strategies, photography, assets and website architecture. The Eatery Group reserve the rights to certain elements used to create your images including fonts, patterns, stock images, textures, colour palettes and other non exclusive items.
The Eatery Group reserves 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 THE EATERY GROUP, 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 The Eatery Group shall be outlined in the Project Proposal or Estimate. For additional usage, 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 The Eatery Group until such time an agreement is in place. As part of The Eatery Group terms of business, the copyright license is automatically released to the client on receipt of final payment for the commissioned work. The Eatery Group reserves 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 The Eatery Group in print or digital media portfolios, social media and blogs, except where the client has specifically requested in writing otherwise.
8. Supply of Original Working Artwork Files/Assets
The Eatery Group owns all physical artwork files, designs, concepts and assets. All finished art estimates include supply of high res PDF file/s or flattened web image/s, and does not include the original or packaged InDesign or layered Photoshop file/s, unless otherwise specified clearly on the estimate.
In the event the Client must attain the original working files, these can be released under exclusive license to the Client at a fee based on the market rate on a case-by-case basis, at the discretion of The Eatery Group.
The Eatery Group reserves the right to refuse supply of physical artwork files, depending on the circumstances and the intended usage of such files.
9. Approval of Final Artwork
While The Eatery Group takes all care to avoid errors, The Eatery Group 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 proof read and approve all final copy before the production of the artwork. The email verification of the Client’s representative shall be conclusive as to the approval of all artwork prior to their release for printing, implementation or installation. No refunds or reprints are given after a final approved design has gone to print due to oversights by the Client’s proof reading.
10. Design Credit
The Client agrees to allow The Eatery Group to place a small credit of printed material, exhibition displays, advertisements and websites. This will be in the form of a small logo or text placed towards the bottom of the piece.
The Client also agrees to allow The Eatery Group to place websites and other designs, along with a link to the client’s site on The Eatery Groups own website for self promotional purposes.
11. Good Business = No ‘Free Pitching’
Free pitching is the practice of clients asking for unpaid design submissions from one or more studios in order to decide which studio to use. The Eatery Group is opposed to ‘free pitching’ or ‘working for free’. The Eatery Group will not do work or present ideas for free, in order to show you or present an idea or when pitching in competition with another design firm. A price must be agreed upon before time is spent on any work undertaken at the Clients’ request. Watch this very funny video and it will all make more sense.
“Free pitching is bad for clients because it substantially reduces the probability of an appropriate
and relevant design solution. A free pitch situation is like a beauty parade – decidedly superficial.
The problem with a superficial solution is that it is not only a waste of time and money at the design stage, it also jeopardises the effectiveness of any further spend on downstream processes such as print, multimedia and distribution.”
– Australian Graphic Design Association (agda.com.au)
As a design agency whose core business is to create design solutions, we value the relationships we create and nurture with our clients. Free pitching doesn’t allow for normal client/agency interactions and instead places too much importance on that first ‘wow’ presentation moment, instead of having the opportunity to work through an effective solution with the client from beginning to end.
The whole concept of free pitching is an old school hangover from the old advertising agency days where agencies made their income through media placements, retainers and commissions, on much larger sized accounts often worth several million dollars, which is simply not the case these days for most free pitch opportunities.
“I do not expect my lawyer, accountant, doctor, dentist or Alfa mechanic to donate their skilled time for my benefit, nor would I ask them to demonstrate their skills without appropriate reward.”
– Brian Sadgrove, Brian Sadgrove and Associates
If you are interested in finding out more about free pitching and the reasons why The Eatery Group is opposed – read more here.
12. Artwork Storage
All files are stored electronically and are logged via a database for quick retrieval and access. All files are backed up daily to external media to ensure loss of work is kept to a minimum. Retrieval fees may be incurred at the discretion of The Eatery Group.
13. Termination of this Agreement
This Agreement may be terminated (i) by either Party.
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 The Eatery Group. This is to cover design and administration time spent, resources purchased and allocated, research time and administration costs. If the project is more than 50% completed (this is determined by The Eatery Group and the Client by negotiation) a pro-rata payment is payable for time spent up until cancellation notice, at an hourly rate of $170 per hour plus GST.
If a project is cancelled by The Eatery Group, 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, The Eatery Group retains ownership of all copyrights, concepts assets, and original artwork in relation to the project.
14. Freelance Contractors and Confidentiality
All contractors employed by The Eatery Group are held to a strict confidentiality and nondisclosure agreement. Contractors of The Eatery Group are also bound by a strictly enforced non-solicitation agreement for a period of 36 months after the conclusion of their work with The Eatery Group. If this was to be breached by the contractor, The Eatery Group will take swift and reparatory measures to ensure the Client is made aware that the contractor in question is no longer a representatives of The Eatery Group and acting independently.
Furthermore the unlawful contractor will be prosecuted through legal channels to the full extent of the law in such cases. The Eatery Group aim for complete security of our clients and if we select contractors it is based upon previous work, references, and global checks with previous employers, as well as compliance with strict The Eatery Group guidelines of professional behavior and ethics.
15. Late Payments and Default
Accounts which are not paid within 31 days, will incur a late administration fee of $20 excluding GST. Accounts which remain outstanding for 45 days after the date of invoice will incur an additional late payment fee equivalent to 5% of the total project costs for each week payment is outstanding.
Unless prior arrangements have been made, The Eatery Group shall consider an account in default if it remains unpaid for 45 days from the date of invoice, or the Client has stated expressly that they do not intend to pay an invoice. The Eatery Group shall at it’s sole discretion suspend any and all services provided to the client by The Eatery Group or it’s subsidiaries (including but not limited to hosting, websites designed files, concepts, artwork, 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, sub-contractors, 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 The Eatery Group reasonable legal expenses and third party collection agency fees in the enforcement of these Terms and Conditions.
The Eatery Group retains all copyright for work performed until full project costs have been paid. The Eatery Group reserves the right to reuse or resell work undertaken in the case of payment default.
The Eatery Group 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.
16. Additional Terms
a. Waiver - The failure by either Party to insist upon strict performance of any provision of this Agreement shall in no way constitute a waiver of rights under this Agreement, at law or in equity.
b. Permission to Include in Portfolio – Only if the Client gives its explicit, advance, written permission, may The Eatery Group use any Materials in any sample portfolio or other showcase or work sample, whether offline or online.
c. Indemnification – Each Party agrees to indemnify, h8old harmless and defend the other from any third-party claims brought against such Party due to the other Party’s infringement of a third-party’s intellectual property rights in relation to the Services offered under this Agreement.
d. Assignment - Neither Party may assign this Agreement without the prior written consent of the other.
e. Representations and Warranties - The Eatery Group promises that all Services:
i. will be performed in line with the Client’s reasonable written instructions;
ii. will be performed to the best of The Eatery Group’s ability and in an effective, timely and professional manner;
iii. will not infringe on the intellectual property rights of any other party; and
iv. will comply with all applicable laws, rules, regulations, orders of any governmental agency, and will not violate the terms of any contracts between The Eatery Group and any third parties. Client promises that any content they provide to The Eatery Group is either the property of the Client or that the Client has the permission or license to use such content.
f. Governing Law and Jurisdiction - Any and all actions or proceedings arising out of, or relating to this Agreement will be governed by, and interpreted in accordance with, the laws of the State of New South Wales in the Commonwealth of Australia and each party hereby irrevocably submits to the non-exclusive jurisdiction of the Courts of New South Wales.
g. Severability – It is the intent of the Parties that the provisions of this Agreement shall be enforced to the fullest extent permitted by applicable law. To the extent that the terms set forth in this Agreement or any word, phrase, clause or sentence is found to be illegal or unenforceable for any reason, such word, phrase, clause or sentence shall be modified, deleted or interpreted in such a manner so as to afford the Party for whose benefit it was intended the fullest benefit commensurate with making this Agreement as modified, enforceable and the balance of this Agreement shall not be affected thereby, the balance being construed as severable and independent.
17. Goodwill Disclaimer
This Agreement assumes goodwill from both The Eatery Group and the Client regarding:
- What can reasonably be achieved in a given time frame
- Making best use of resources to achieve the most effective outcomes
Graphic design, strategy, photography, marketing are all highly creative and subjective art forms. As such, The Eatery Group take every possible care with professional advice offered and any suggested creative concepts and/or their implementation, however The Eatery Group cannot be held responsible for variations between expectation and outcome.
LAST UPDATED: DEC 2015