Think Digital Terms of Service
These Terms apply to clients of Think Digital Studio Pty Ltd ACN 616 878 758 (Think Digital). By placing an Order with us, you are deemed to have accepted these Terms and that these Terms, together with the Supplementary Terms set out in the Order (if any), override any other terms and conditions.
In these Terms:
Background IP means any intellectual property right that are owned or created by a person, licensed from a third party, or developed outside these Terms and exists at or prior to the commencement of these Terms.
Order means the Purchase Order issued by Think Digital to you via email and any listed attachments in that Purchase Order (including these Terms), which together make up the contract between us and you.
Price means the price of the Products set out in the Order.
Product IP means the intellectual property that is created by us in the course of creating the Products in accordance with these Terms.
Payment Terms means the times at which part-payments of the Price is to is to be paid, specified in the Order.
Products means the product/s and/or services specified in the Order.
Quote means a quote for Products issued to you by us.
Terms means these Terms of Service.
we, us or Think Digital means Think Digital Studio Pty Ltd ACN 616 878 758.
you or your means the person named in the Order.
2.1 This clause applies to any Quote issued by Think Digital to you. It is your responsibility to ensure the Products specified in the Quote meet your requirements.
2.2 Any quote is valid for 14 days.
3.1 Any confirmation of a Quote made by you shall be deemed to be accepted by us, and a binding contract is deemed to be made between the parties when we issue an Order or, when we deliver the Products to you (whichever occurs first).
3.2 Once an Order has been issued, you may not cancel the order. The quantity and description of the Products shall be as set out in the Order.
4. THINK DIGITAL OBLIGATIONS
4.1 We will use our best endeavours to prepare the Products safely, skilfully, diligently and according to the agreed timetable (if any).
4.2 We will comply with all written instructions provided by you in relation to the Order.
5.1 Unless otherwise agreed in writing by us, delivery shall take place electronically as specified by us on the Order.
5.2 Any dates specified by us for delivery of the Products are intended to be an estimate for delivery. If no date is specified, delivery will be within a reasonable time.
5.3 If for any reason you fail to accept delivery of any of the Products when they are ready for delivery, or we are unable to deliver the Products on time because you have not provided appropriate instructions, documents, licences or authorisations:
a) risk in the Products shall pass to you;
b) the Products shall be deemed to be delivered; and
c) we may store the Products until delivery whereupon you shall be liable for all related costs and expenses.
5.4 The consignment of Products as recorded by us in our email confirmation shall be conclusive evidence of the quantity delivered and received unless you give prompt written notice to us of any non-delivery.
5.5 Our liability for non-delivery of the Products shall be limited to re-supplying the Products.
5.6 You agree to inspect the Products immediately on receipt and you shall be deemed to have accepted the Products as being in conformity with these Terms within 7 days of receipt unless you notify us in writing of rejection on the basis of non-conformity.
5.7 If your conduct is inconsistent with any notice of rejection, you shall be deemed to have accepted the Products.
5.8 We shall, at our option, repair or replace any defective Products or refund the price of such Products, provided that you return the Products, or the part of the Products which is defective, to us.
6. RISK & TITLE
6.1 Title in the Products passes to you when you pay for the Products in full.
6.2 Risk in the Products passes when they are delivered to you.
7. INTELLECTUAL PROPERTY
7.1 All Background IP rights of a party will not be affected by anything in these Terms and nothing in these Terms has the effect of transferring ownership of any such Background IP.
7.2 You grant us a limited, non-exclusive, fee-free and royalty-free licence to access and use your Background IP for the purpose of performing our obligations under these Terms and delivering the Products to you. To the extent that any of your Background IP is owned by a third party, you will obtain any rights required by us to use that Background IP and to incorporate it into the Products (as necessary).
7.3 Any rights in the Product IP will vest in the Client and to the extent that the Product IP comprises any intellectual property rights of a third party, we will grant you a perpetual, irrevocable, royalty-free licence to use such intellectual property for the Products.
8. PRICE & PAYMENT
8.1 The price for the Products shall be the Price set out in the Order.
8.2 The Price shall be due and payable in full within 14 days of the date of any invoice issued in connection with the Products, or as otherwise specified by the Payment Terms.
8.3 All prices quoted by us are exclusive of GST.
8.4 Should you fail to pay the Price, or any part of the Price, we shall have the right to cancel these Terms or suspend all further deliveries to you, as well as suspend any work in hand at the time of any such failure.
9.1 Any variation request must be made in writing.
9.2 You acknowledge that if you require us to vary the Products we shall be entitled to an extension of time within which to perform the Works and supply the Goods. We shall also be entitled to vary the Price to reflect any additional work or rework arising from such request.
10. INDEMNITY & LIABILITY
10.1 You indemnify us and our workers against all claims, liabilities, loss, damage or penalties for any loss or damage to persons or property (including any third party intellectual property claim) if caused or contributed to, by the negligence, misconduct or breach of these Terms by you. This indemnity is reduced to extent that we cause such loss or damage.
10.2 Except as expressly provided in these Terms, to the extent permitted by law, we:
exclude all liability to you or anyone else for loss or damage of any kind (however caused or arising) relating in any way to the Products or in connection with these Terms; and
will not be liable for any direct, indirect, special, incidental or consequential damages arising out of your use of the Products or in connection with these Terms.
10.3 This clause is not intended to exclude or limit any rights you may have under the Competition and Consumer Act 2010 (Cth).
We reserve the right to defer the date of delivery or to cancel these Terms if it is prevented from or delayed in the carrying on of its business due to circumstances beyond our reasonable control.
12.1 If either party breaches these Terms, the other party may give notice requiring the breach to be remedied within 7 days. If it is not remedied, the party giving the notice to terminate these Terms.
12.2 Termination of these Terms does not affect accrued rights or remedies.
13.1 We are an independent contractor. These Terms do not create a joint venture, trust, employment, agency or partnership relationship. You do not have authority to contract with third parties on behalf of us.
13.2 Any variation to these Terms must be agreed in writing by you and us.
13.3 Formal notices will be sent to your registered address and to us at 5 Grevillea Way Belair SA 5052.
14. SUPPLEMENTARY TERMS
These Terms shall apply to any Order, except where modified by the Supplementary Terms set out in the Order, which form part of these Terms and prevail to the extent of any inconsistency.