Terms and conditions

Part A: General

1. About these Terms and who we are

1.1 Who we are. These Terms and Conditions (Terms) are issued by [TRUSTEE NAME AND ACN] as trustee for the Studio Ecks Family Trust (ABN 49 145 778 164), trading as Bendigo Graphics, of Shop 2, 176 Lyttleton Terrace, Bendigo, Victoria 3550 (Bendigo Graphics, we, us and our). References to us include our successors and permitted assigns.

1.2 Who you are. In these Terms, you, your and Customer mean the person, business, company, trust, partnership, association or other entity that requests a Quote, places an Order, accepts a Proposal or Service Agreement, creates an Account, uses Pulse or the Website, or otherwise acquires Goods or Services from us. If you act for a business or other entity, “you” means that entity, and you personally warrant that you are authorised to bind it.

1.3 What these Terms cover. These Terms govern every supply of Goods and Services by us, every Order, every Account and every use of Pulse and the Website, whether the dealing happens in person, by telephone, by email, by message, through the Website, through Pulse or in any other way.

1.4 Why these Terms matter. Please read these Terms carefully. They contain provisions that limit our liability (clause 54), require you to indemnify us (clause 55), give us a security interest in Goods until they are paid for (clause 13), and allow us to suspend supply when accounts are overdue (clause 12). Nothing in these Terms limits your rights under the Australian Consumer Law (clause 52).

2. Definitions and interpretation

2.1 Definitions. In these Terms, unless the context requires otherwise:

(a) Account means an account that gives access to Pulse or to online ordering on the Website, including any sub-account or Authorised User access within it.

(b) Ad Spend means the amounts charged by an Advertising Platform for the placement or delivery of advertising, as distinct from our Fees for managing that advertising.

(c) Advertising Platform means Google Ads, Meta (including Facebook and Instagram), and any other advertising network, marketplace or platform on which advertising is placed.

(d) Agreement means the contract between you and us formed under clause 4, made up of the documents described in clause 3.

(e) Approved Proof means a Proof that you have approved under clause 15, including by a Self-Approval.

(f) Australian Consumer Law or ACL means Schedule 2 to the Competition and Consumer Act 2010 (Cth), as applied as a law of the Commonwealth and of each State and Territory.

(g) Authorised User means any person you permit, invite or enable to access your Account or to deal with us for you, including your employees, contractors, agents and the people you add as team members in Pulse.

(h) Background IP means all Intellectual Property Rights owned by, licensed to or developed by us or our licensors, before or independently of the Agreement, including our know-how, methods, processes, templates, layouts, style libraries, component libraries, code, scripts, automations, prompts, checklists, pricing tools, software, Pulse and the Website, and any improvement to any of them.

(i) Business Day means a day other than a Saturday, Sunday or public holiday in Bendigo, Victoria, and excludes the period from 24 December to 2 January (inclusive) in each year.

(j) Client Data means all data, information and content, including personal information, that you or your Authorised Users input into Pulse, that is imported into Pulse from a Connected Account, or that we collect or process for you in performing Marketing Services, including data about your own customers, leads and callers.

(k) Confidential Information has the meaning given in clause 49.

(l) Connected Account means any account, profile, property or service of yours with a third party (including Google Ads, Google Analytics, Google Business Profile, Meta, Mailchimp, social media platforms, website platforms, domain registrars and email services) that you connect to Pulse, authorise us to access, or give us access to.

(m) Consumer has the meaning given to “consumer” in section 3 of the Australian Consumer Law.

(n) Content Day means an on-location session for the production of photography, video or other content.

(o) Credit Terms means payment terms, other than payment in advance, that we have approved for your Account in writing, including terms of payment within 30 days (Net 30), together with any credit limit and conditions attached to that approval.

(p) Custom Goods means Goods that are made, printed, decorated, cut, sized, embroidered, finished or otherwise produced or configured to your specifications, including anything bearing your artwork, name, logo or text.

(q) Customer Materials means everything you or your Authorised Users supply, upload, send, direct us to use or make available to us, including artwork, logos, images, photographs, fonts, text, copy, product data, measurements, specifications, trade marks, reviews, testimonials, claims, prices, offers, contact lists and instructions, and any item you supply for decoration.

(r) Deliverables means the things we create and deliver to you under the Agreement, including designs, artwork, print files, copy, posts, advertisements, emails, landing pages, websites, photographs, video and reports.

(s) Deposit means the amount stated in a Quote or Order, or required by clause 10, as payable before we commence work.

(t) Design Hours means time spent by us in performing Design Services, measured in the units stated in clause 23.

(u) Design Intelligence means the automated and machine-learning features made available by us in Pulse, the Website, the design editor or otherwise, including features that generate, suggest, draft, summarise, classify, score, transcribe or lay out content.

(v) Design Services means design, artwork, layout, file preparation, pre-press, brand, creative, copywriting and related services, and the management of that work.

(w) Effective Date means the date at the top of these Terms.

(x) Fees means all amounts payable by you under the Agreement, including prices for Goods, charges for Services, Plan Fees, delivery charges, variations, expenses, third-party costs passed on to you, and GST.

(y) Final Deliverables means the final version of Deliverables that you have approved and that we have released to you for use, excluding Background IP, Third-Party Materials and working files.

(z) Force Majeure Event has the meaning given in clause 56.

(aa) Goods means all physical items we supply or arrange to supply, including printed products, signage, banners, stickers, decals, labels, apparel, uniforms, promotional products and merchandise.

(bb) GST has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(cc) Insolvency Event means, in respect of a person, that the person is or states that it is unable to pay its debts as and when they fall due, becomes bankrupt, has a liquidator, provisional liquidator, administrator, receiver, receiver and manager, controller or small business restructuring practitioner appointed, enters into any arrangement or composition with its creditors, is wound up or deregistered, or suffers any analogous event in any jurisdiction.

(dd) Intellectual Property Rights means all present and future rights conferred by law in or in relation to copyright, trade marks (registered or unregistered), designs, patents, circuit layouts, business and domain names, confidential information, know-how and trade secrets, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields, anywhere in the world, whether or not registered or registrable, including the right to apply for registration.

(ee) Marketing Plan or Plan means a recurring monthly marketing service offered by us, including the Studio Plan and the Department Plan, and any other named plan or retainer.

(ff) Marketing Services means social media management and publishing, Google Business Profile management, review management, listings management, advertising management, email marketing, SMS marketing, landing pages, content production, reporting, strategy and related services, whether supplied under a Marketing Plan or separately.

(gg) Minimum Term means the minimum period of a Recurring Service stated in clause 26 or in the relevant Plan Documents.

(hh) Moral Rights has the meaning given in Part IX of the Copyright Act 1968 (Cth), and includes equivalent rights anywhere in the world.

(ii) Order means any request by you for Goods or Services that we accept under clause 4, including an accepted Quote, a checkout on the Website, an order placed in Pulse, a signed Proposal or Service Agreement, and a written or verbal instruction we confirm.

(jj) Plan Documents means, for a Recurring Service, the Service Agreement, Proposal, Quote, order form or checkout page by which you signed up to it, and the published description of the Plan current at the time you signed up.

(kk) PPSA means the Personal Property Securities Act 2009 (Cth), and PPSR means the register established under it. Terms such as “financing statement”, “financing change statement”, “security agreement”, “purchase money security interest” and “verification statement” have the meanings given in the PPSA.

(ll) Production Partner means any third party that manufactures, prints, decorates, finishes, supplies, stores or delivers Goods, or performs any part of the Services, for us.

(mm) Proof means any digital or physical representation of Goods or Deliverables provided for your review, including a PDF, image, rendered mockup, online preview, staging link, draft post, draft email or sample.

(nn) Proposal means a written proposal, statement of work or scope document issued by us, including one presented and accepted through Pulse.

(oo) Pulse means our client portal and related software, applications, dashboards, integrations, application programming interfaces and tools, currently made available at studio.bendigographics.com and on the Website, including any features within it such as the brand hub, print hub, design studio, orders, approvals, invoices, payments, signed documents, saved payment methods, reporting and Design Intelligence.

(pp) Quote means a written quotation, estimate, price displayed on the Website or in Pulse, or a price configurator result, issued or displayed by us.

(qq) Recurring Service means any Service supplied on a recurring or subscription basis, including a Marketing Plan, website care, hosting management, Pulse subscriptions, listings management and any retainer.

(rr) Self-Approval means approval of a Proof by you through an online process in which you review a rendered Proof and confirm your approval (for example by ticking a box and proceeding), without a separate Proof being prepared by our staff.

(ss) Service Agreement means a written agreement for Services signed by you and us, including one signed electronically through Pulse.

(tt) Services means all services we supply or arrange, including Design Services, Marketing Services, Website Services, Content Days, Pulse, consultation, file handling, proofing, production management, delivery and support.

(uu) Third-Party Materials means materials owned by a person other than you or us, including stock photographs, illustrations, video, music, icons, fonts, templates, plugins, themes, code libraries and platform features, and outputs supplied by third-party services.

(vv) Third-Party Services means services provided by persons other than us that you use in connection with the Goods or Services, including Advertising Platforms, social media platforms, website platforms, hosting providers, domain registrars, email and SMS providers, payment processors, and the Connected Accounts.

(ww) Website means bendigographics.com and every subdomain, page, shop, cart, form and design tool operated by us, other than Pulse.

(xx) Website Services means the design, build, launch, hosting management, domain management, care, maintenance, updates and support of websites.

2.2 Interpretation. In these Terms, unless the context requires otherwise:

(a) headings, the summary box and explanatory notes are for convenience only and do not affect interpretation;

(b) the singular includes the plural and the reverse, and a gender includes every gender;

(c) “including”, “for example” and similar expressions are not words of limitation;

(d) a reference to a law includes any regulation, instrument, standard, code or guideline made under it, and any amendment, consolidation or replacement of it;

(e) a reference to a person includes an individual, body corporate, trust, partnership, government body and any other entity, and a reference to a party includes its executors, administrators, successors and permitted assigns;

(f) a reference to “writing” or “written” includes email, a message sent through Pulse, and any other electronic communication capable of being retained and read;

(g) a reference to a clause is a reference to a clause of these Terms;

(h) where a period is expressed to run from a day or event, it excludes that day or the day of that event, and if the last day is not a Business Day, the period ends on the next Business Day;

(i) all amounts are in Australian dollars unless stated otherwise;

(j) no rule of construction applies to the disadvantage of a party because that party prepared these Terms; and

(k) where you comprise more than one person, each of you is bound jointly and severally.

3. Order of precedence

3.1 Documents that form the Agreement. The Agreement comprises, as applicable: (a) any Service Agreement; (b) any Proposal accepted by you; (c) any Quote or Order accepted under clause 4, including any Approved Proof and any written variation agreed under clause 9; (d) any Credit Terms approval; (e) these Terms; and (f) our Privacy Policy, which describes how we handle personal information but does not impose contractual obligations on you.

3.2 Precedence. If there is any inconsistency between the documents that make up the Agreement, they prevail in the order listed in clause 3.1, but only to the extent of the inconsistency. A signed Service Agreement, Proposal or Quote therefore prevails over these Terms, and these Terms prevail over the content of the Website, Pulse, brochures, advertisements, social media posts, FAQs, product descriptions, blog posts and any other general information published by us.

3.3 Terms of Engagement. Where a Proposal is accepted under a version of our Terms of Engagement, those Terms of Engagement form part of that Proposal for the purpose of clause 3.2.

3.4 Your terms do not apply. Any terms and conditions contained in or referred to in your purchase order, supplier registration, email footer, remittance or any other document are excluded and do not form part of the Agreement, even if we sign or acknowledge that document, unless we expressly agree in a Service Agreement that they apply.

4. Acceptance and formation of the Agreement

4.1 Acceptance of these Terms. You accept these Terms, and they bind you, on the earliest of you: (a) accepting a Quote, Proposal or Service Agreement in any manner, including by signing it electronically, replying to confirm it, or clicking a button to accept it; (b) placing an Order through the Website or Pulse, or ticking a box confirming that you agree to these Terms; (c) paying a Deposit or any other part of the Fees; (d) instructing us to commence work; (e) creating or using an Account; or (f) receiving Goods or Services from us.

4.2 Quotes are invitations. A Quote is an invitation to treat and not an offer capable of acceptance until we confirm it. An Order is an offer by you to acquire the Goods or Services described in it on these Terms. A binding contract is formed when we accept your Order, which we may do in writing, by issuing an order confirmation, sales order, invoice or payment request, or by commencing work.

4.3 Our right to decline. We may decline any Order or enquiry, in whole or in part, without giving reasons, including where we consider the Order unlawful, offensive, defamatory, discriminatory, hateful, misleading, harmful to our reputation or inconsistent with our values or professional standards, where we cannot obtain the Goods or Services from a Production Partner on acceptable terms, or where your Account is suspended. If we decline an Order after you have paid for it, we will refund the amount paid for the declined part.

4.4 Separate contracts. Each Order forms a separate contract on the terms of the Agreement. Our failure or delay in relation to one Order does not entitle you to cancel or withhold payment for any other Order.

4.5 Capacity and age. You warrant that you are at least 18 years of age and have legal capacity to enter into the Agreement. We supply Goods and Services primarily for business purposes. If you are acquiring Goods or Services as a Consumer for personal, domestic or household purposes, clause 52 applies and prevails over any other clause.

5. Changes to these Terms

5.1 Accepted Orders. Each Order is governed by the version of these Terms in force when the Order was accepted. We will not change the terms of an accepted Order without your agreement, except as permitted by clause 5.2 for Recurring Services.

5.2 Recurring Services and Accounts. We may amend these Terms as they apply to Recurring Services, Accounts and Pulse, or change the Fees for a Recurring Service after its Minimum Term, where the change is reasonably necessary to protect our legitimate interests, including to reflect changes in law, in our costs or in Third-Party Services, the addition, change or removal of features, or security needs. We will give you at least 30 days’ written notice of any change that is reasonably likely to be detrimental to you. If you do not agree to the change, you may end the affected Recurring Service by written notice given before the change takes effect, without any early termination charge, and you will be refunded any Fees paid in advance for the period after termination. If you do not end the service, the change applies from the date stated in our notice.

5.3 Changes that are not detrimental. We may make changes that are not detrimental to you, including corrections, clarifications and changes required by law, on posting the amended Terms on the Website.

5.4 Version record. Each version of these Terms is identified by its version number and effective date. We keep previous versions and will provide a copy on request.

6. Accounts, Pulse access and Authorised Users

6.1 Creating an Account. Accounts for managed clients are created by invitation. Other customers may create an Account through the Website. You must provide complete and accurate information and keep it up to date, including your legal entity name, ABN (if any), billing contact and accounts email.

6.2 Credentials. You are responsible for keeping login credentials, passwords, one-time codes and multi-factor authentication devices secure and confidential. Each Authorised User must have their own login. You must not share logins.

6.3 Responsibility for Authorised Users. You are responsible for the acts and omissions of your Authorised Users as if they were your own. Any Order, approval, instruction, payment, signature or communication made through your Account, or by a person who holds themselves out as acting for you and whom we reasonably believe to be authorised, binds you. Where you nominate an Authorised Representative or approver in a Service Agreement or in Pulse, we may rely on that person’s approvals and instructions until you notify us in writing of a change.

6.4 Roles. Pulse allows you to give Authorised Users different roles, such as owner, member and viewer. You are responsible for assigning roles appropriately and for removing access promptly when a person leaves your business or should no longer have access. Owner-level actions, including inviting users, changing billing details and deleting data, should be restricted to people you trust with them.

6.5 Compromise. You must notify us immediately at info@bendigographics.com if you suspect any unauthorised access to or use of your Account. We are not liable for any loss arising from unauthorised use of your Account that results from your failure to keep credentials secure, except to the extent the loss is caused by our breach of the Agreement or our negligence.

6.6 Guest sessions. The Website allows guests to design and order without an Account. A guest session is linked to the device and browser used. If you clear your browser data or change device before creating an Account, designs in a guest session may be lost. Guest orders are governed by these Terms in the same way as Account orders.

7. Acceptable use

7.1 Prohibited use. You must not, and must ensure your Authorised Users do not, use the Website, Pulse, the Goods or the Services, or ask us to create, print, publish or send anything:

(a) that is unlawful, or that infringes the Intellectual Property Rights, privacy, publicity or other rights of any person;

(b) that is defamatory, obscene, pornographic, hateful, discriminatory, threatening, harassing, or that promotes violence or unlawful activity;

(c) that is false, misleading or deceptive, or likely to mislead or deceive, including false testimonials, fake reviews and unsubstantiated claims;

(d) that breaches the Spam Act 2003 (Cth), the Do Not Call Register Act 2006 (Cth), the Privacy Act 1988 (Cth), any advertising code, or any equivalent law in any other jurisdiction in which you operate or your recipients are located;

(e) that breaches the terms, policies or community standards of any Third-Party Service;

(f) that introduces malware, viruses or harmful code, or that probes, scans, tests or attempts to breach the security of the Website or Pulse;

(g) that involves scraping, crawling, data mining, automated extraction, or the use of bots or scripts to access the Website or Pulse, other than through an interface we provide for that purpose;

(h) that interferes with, overloads or disrupts the Website, Pulse or any Third-Party Service, or circumvents any rate limit, usage limit or access control;

(i) to copy, frame, reverse engineer, decompile or disassemble any part of the Website or Pulse, or to build a competing product or service, except to the extent the law expressly permits it; or

(j) to impersonate any person, or to misrepresent your affiliation with any person.

7.2 Conduct towards our people. You must treat our staff and contractors with courtesy and respect. Abusive, threatening, harassing or discriminatory conduct towards our people is a material breach of the Agreement.

7.3 Our rights. If we reasonably believe that clause 7.1 or 7.2 has been breached, we may, in addition to any other right, refuse to produce, print, publish or send the relevant material, remove it, suspend the relevant Service or your Account under clause 41, and report the matter to the relevant authority or platform.

Part B: Quotes, orders and payment

8. Quotes, estimates and pricing

8.1 Validity. Unless a Quote states otherwise, it is valid for 14 days from its date of issue. We may withdraw or amend a Quote at any time before you accept it. Prices shown on the Website or in Pulse apply at the time the Order is placed.

8.2 Basis of a Quote. A Quote is based on the information, quantities, sizes, materials, finishes, artwork and timeframes known to us when it is prepared, and on prices from our Production Partners and suppliers at that time. A Quote does not include design, file preparation, additional Proof rounds, rush charges, delivery or installation unless it says so. An estimate, indicative price, “from” price or ballpark figure is not a Quote and is not binding.

8.3 GST. Unless expressly stated otherwise, prices displayed to Consumers include GST, and prices in Quotes, Proposals, Plan Documents and Service Agreements are stated as either including or excluding GST. Where a price is stated to exclude GST, or is silent and we are required to pay GST on the supply, you must pay GST on the supply in addition to the price, at the same time as the price. We will issue a tax invoice for each taxable supply.

8.4 Changes to price after acceptance. We may adjust the price of an accepted Order, before production commences, only where:

(a) you change the specifications, quantities, artwork, materials, finish, delivery method or timing;

(b) the Customer Materials require more work than the Quote allowed for (clause 14.4);

(c) the information on which the Quote was based was incomplete or inaccurate; or

(d) a Production Partner or supplier increases its price, or a tax, duty, tariff or freight charge increases, after the Quote was issued, by more than 5% of the relevant cost,

and, in the case of paragraph (d), we notify you of the new price before production and you may cancel the affected Order without charge within 2 Business Days of that notice, in which case we will refund any amount paid for it.

8.5 Errors. Quotes, invoices, Website prices and Pulse prices are prepared with care, but errors can occur, including typographical, calculation and software errors. If a price is obviously wrong, or wrong because of a technical or pricing error, we may correct it. If we correct an error before we commence work, you may either accept the corrected price or cancel the Order for a full refund. If we find that we have undercharged you after an Order is completed, we will tell you, and you will not be required to pay the difference unless the error was obvious to a reasonable person in your position or was caused by incorrect information you gave us.

8.6 Variable quantities. Where a price is calculated from a quantity, area, size or number of pages, it is calculated on what is actually produced or supplied, subject to clause 16.3.

8.7 Minimum charges. We may apply minimum charges per line item or per order, as displayed on the Website, in Pulse or in a Quote, including a top-up to a minimum order value.

8.8 Pricing levels. Different pricing levels, trade prices, member discounts and account pricing may apply to particular Accounts. Special pricing is confidential to you, is personal to your Account, and may be withdrawn for future Orders on written notice.

9. Orders, changes and cancellation

9.1 Checking your Order. You are responsible for ensuring that each Order, including every quantity, size, colour, material, finish, garment size breakdown, delivery address and due date, is complete and correct before you submit or accept it.

9.2 Changes requested by you. You may ask to change an accepted Order. We are not obliged to accept a change. If we accept it, we may adjust the price and the estimated turnaround, and the change forms part of the Order once we confirm it in writing. Changes requested after production has commenced may not be possible, and where possible will be charged at our reasonable cost, including the cost of any Goods already produced.

9.3 Custom Goods. Custom Goods are made specifically for you and generally cannot be resold. Once production of Custom Goods has commenced, the Order cannot be cancelled by you, and the full price is payable, except as provided in clause 52.

9.4 When work commences. Work on an Order is treated as commenced when we have begun any of the following for it: Design Services, file preparation or pre-press, preparation of a Proof, ordering or reserving stock, materials, garments or blanks, or booking production with a Production Partner.

9.5 Cancellation by you before production. If you cancel an accepted Order before production has commenced:

(a) if no work has commenced, we will refund any Deposit paid, less any non-refundable third-party costs already incurred for the Order (such as card processing fees), which we will identify;

(b) if work has commenced, we may retain from the Deposit, and you must pay us to the extent the Deposit does not cover them, our charges for Design Services and file preparation performed, at the Excess Rate (clause 23.3(e)), the cost of stock, materials and blanks ordered for the Order that cannot be returned or used elsewhere, any cancellation or restocking charges imposed by our Production Partners, and a reasonable administration charge not exceeding 10% of the Order value; and

(c) we will refund any part of the Deposit that exceeds the amounts in paragraph (b).

9.6 Cancellation after production has commenced. If you cancel an Order after production has commenced, the full price of the Order remains payable, and we will, at your election, deliver or hold for collection the Goods produced.

9.7 Services cancellation. Cancellation of Design Services, Website Services and project work is governed by the relevant Proposal or Terms of Engagement, and otherwise by clause 9.5 applied to the work performed. Cancellation of Recurring Services is governed by clauses 26 and 57.

9.8 Pausing. If you ask us to pause an Order, or an Order is waiting on you for more than 30 days (including for Customer Materials, Proof approval or payment), we may, on 7 days’ written notice, treat the Order as cancelled by you under clause 9.5 or 9.6 (as applicable) or re-quote the remaining work. Estimated turnaround times lapse during any pause.

9.9 Cancellation by us. We may cancel an accepted Order by written notice if a Production Partner or supplier can no longer supply the Goods on the specifications ordered, or if we reasonably consider that performing the Order would breach a law or clause 7. If we cancel under this clause, we will refund all amounts you have paid for the cancelled part of the Order and we will have no further liability for it.

10. Payment

10.1 Deposits. Unless your Account has approved Credit Terms, or the Quote, Proposal or Service Agreement states otherwise:

(a) a Deposit of 50% of the Order value (or such other amount or percentage as the Quote, Order or Proposal states) is payable on acceptance;

(b) we are not obliged to commence any work until the Deposit has been received in cleared funds; and

(c) Orders placed on the Website by a guest, or by a person whose Account does not have Credit Terms or other account terms, require payment of the Deposit at checkout.

10.2 The production payment gate. Unless your Account has approved Credit Terms, the balance of the price of an Order is payable after you approve the Proof and before production commences. We are not obliged to send any Order into production, and the Order will be held, until the balance (or any stage payment we have required) has been received in cleared funds. Where we have agreed that a balance may be paid later, it must be paid before the Goods are dispatched or collected. Estimated turnaround times run from the day the payment gate is satisfied.

10.3 Account terms. Where your Account has approved account terms (for example, payment in full upfront, or a deposit percentage other than 50%), those account terms apply to your Orders in place of clause 10.1 and are applied automatically to Orders placed while you are signed in to your Account. Account terms apply only while the person placing the Order is signed in with a verified Account that belongs to your business.

10.4 Credit Terms.

(a) Credit Terms are available only by written application in the form we require, and are granted, varied and withdrawn at our discretion. We may request trade references, financial information and a credit check, and may require a personal guarantee from one or more directors, trustees or principals as a condition of approval.

(b) Where Credit Terms are approved, invoices are payable within the period stated in the approval (for example, 30 days from the date of invoice) and invoices are generally issued at dispatch or collection, or as stated in the approval.

(c) Every Credit Terms approval is subject to a credit limit. We may decline, hold for review or require prepayment of any Order that would take your outstanding balance above the credit limit.

(d) We may suspend or withdraw Credit Terms, or reduce the credit limit, at any time by written notice if any amount is overdue, if an Insolvency Event occurs or we reasonably believe one is likely, if there is a material change in your ownership or financial position, or if you breach the Agreement. On withdrawal, all amounts owing become immediately due and payable, and future Orders are subject to clauses 10.1 and 10.2.

(e) You must notify us in writing within 7 days of any change of ownership, control, name, trustee or legal structure of your business. Until we receive that notice, you remain liable for all Orders placed on your Account.

10.5 Services and projects. Fees for Design Services, Website Services and project work are payable as set out in the relevant Quote, Proposal or Service Agreement. Where no payment schedule is stated, a Deposit of 50% is payable on acceptance and the balance is payable before release of Final Deliverables, launch of a website, or publication, whichever is first.

10.6 Invoices. Unless otherwise stated in the invoice or your Credit Terms, invoices are payable within 7 days of their date. Payment is not made until cleared funds are received by us and matched to your invoice. You must quote the invoice number in any remittance.

10.7 Payment methods. We accept payment by card (including in person on our card readers and online through our payment processor), bank transfer, and any other method we specify on the invoice or in Pulse. Card payments are processed by Stripe, and we do not see or store your full card number.

10.8 Surcharges and payment fees. From 1 October 2026 we do not apply a surcharge to payments made with eftpos, Mastercard, Visa, American Express, PayPal or UnionPay cards, or any other payment method for which surcharging is prohibited by law or by the applicable scheme rules. Where the law and the applicable scheme rules permit a surcharge or fee for another payment method, we may apply a surcharge or fee not exceeding our reasonable cost of acceptance, which we will disclose before you pay. International transfer fees, bank charges and currency conversion costs are payable by you, and amounts received net of them are credited only in the net amount.

10.9 No set-off. Unless you are a Consumer, or the law provides otherwise, you must pay all amounts due without set-off, counterclaim, deduction or withholding of any kind, and you may not withhold payment because of a dispute about another Order.

10.10 Our set-off. We may set off any amount we owe you (including a refund or credit) against any amount you owe us.

10.11 Payments on account. We may apply any payment received from you to any amount you owe us, in the order we choose, unless you have specified in writing when paying that it is to be applied to a particular invoice that is not in dispute.

10.12 Refunds. Refunds are paid to the original payment method where possible, and otherwise by bank transfer to an account in your name. Card processing fees charged to us on the original payment are not refundable, except where the refund is required because of our breach, our cancellation, or clause 52.

10.13 Chargebacks. If you initiate a chargeback, payment reversal or dispute with your card issuer or bank in respect of an amount that is properly payable under the Agreement, you must pay us the amount reversed together with any dispute fee charged to us, and we may treat the reversal as non-payment under clause 12.

11. Card on file, recurring payments and subscription authority

11.1 Saved payment methods. Pulse and the Website allow you to save a card or other payment method with our payment processor for future payments. When you save a payment method, you authorise us, through our payment processor, to store it and to charge it for amounts you approve at the time, and for amounts authorised under clause 11.2.

11.2 Recurring authority. When you sign up to a Recurring Service, sign a Service Agreement that provides for automatic billing, or save a payment method as the default payment method for your Account, you authorise us, until the Recurring Service ends and all amounts under it are paid, to charge that payment method without further notice:

(a) the recurring Fees on each billing date stated in the Plan Documents;

(b) any Fees for the Recurring Service that you have approved, including approved additional Design Hours, approved Ad Spend where we bill it under clause 28.3, and approved variations; and

(c) any invoice for Goods or Services that remains unpaid after its due date, but only where you have agreed in the Plan Documents or in Pulse that overdue invoices may be charged to the saved method, and after we have given you at least 3 Business Days’ written notice of the intended charge.

11.3 Changes to amounts. We will notify you in advance of any change to the amount of a recurring charge, other than a change you have requested or approved or that reflects usage you have approved.

11.4 Keeping details current. You must keep your saved payment method current and ensure it has sufficient available funds on each billing date.

11.5 Failed payments. If a payment fails or is declined, we will notify you and may retry the payment method on one or more later days. If the payment is not made within 5 Business Days after our notice, clause 12 applies.

11.6 Cancelling your authority. You may remove a saved payment method or cancel your recurring authority at any time in Pulse or by written notice to us. Cancelling your authority does not end a Recurring Service or relieve you of the obligation to pay Fees that fall due, and you must provide another acceptable payment method.

11.7 Direct debit. Where payment is made by direct debit, the terms of the direct debit request and service agreement presented to you at the time also apply.

12. Late payment, interest, recovery, suspension and stop supply

12.1 Interest. If any amount is not paid by its due date, you must pay interest on the overdue amount at the rate of 10% per annum, calculated daily from the due date until the date of payment, where the amount remains unpaid for more than 14 days after its due date. Interest is payable on demand. We may waive interest at our discretion.

12.2 Recovery costs. You must pay our reasonable costs and expenses actually incurred in recovering any overdue amount, including the commission or fees of a mercantile agent or debt collector and legal costs, to the extent those costs are reasonable and not recovered under a court order.

12.3 Suspension. If any amount owing by you to us is overdue, we may, without liability and in addition to any other right, after giving you written notice:

(a) suspend work on any or all of your Orders and Services, including Recurring Services;

(b) withhold delivery or collection of Goods, and withhold release of Deliverables, files and access credentials we hold;

(c) decline to accept new Orders or to start new work;

(d) require payment in advance for any future Order; and

(e) suspend or withdraw your Credit Terms,

until every overdue amount is paid in full. Estimated turnaround times and agreed timelines lapse during any suspension. Recurring Fees continue to accrue during a suspension under this clause, and our obligations to deliver the suspended Services for that period are reduced accordingly.

12.4 Stop supply. Where an amount remains overdue for more than 30 days, where you have breached the Agreement in a material respect, or where your conduct towards our people breaches clause 7.2, we may place your Account on stop supply. While your Account is on stop supply, we may refuse all new Orders and Quotes, close online ordering for your Account, and pause automated communications to you. We will tell you in writing when we place your Account on stop supply and what is required to lift it. We may also make available to you, through a private link, a record of the relevant Orders, Proofs, approvals and payments so that any dispute can be resolved under clause 58.

12.5 Acceleration. If an Insolvency Event occurs in relation to you, or you breach clause 12 and do not remedy the breach within 14 days of written notice, all amounts you owe us, whether or not then due, become immediately due and payable, and we may cancel any unfulfilled Order.

12.6 Credit reporting. Where you are an individual or a sole trader, or you give a personal guarantee, you consent to us obtaining a commercial credit report and disclosing information about overdue amounts to a credit reporting body or debt collector, in each case to the extent permitted by the Privacy Act 1988 (Cth) and the Privacy (Credit Reporting) Code.

13. Security interest and retention of title

13.1 Title. Title in Goods does not pass to you until you have paid in full, in cleared funds, the price of those Goods and all other amounts you owe us on any account. Risk passes to you in accordance with clause 19 regardless of whether title has passed.

13.2 Before title passes. Until title passes, you hold the Goods as our bailee and fiduciary, must store them so that they are clearly identifiable as our property, must keep them insured against loss and damage, and must not charge, encumber or part with possession of them, except that you may sell or use them in the ordinary course of your business. If you sell or use the Goods before title passes, you hold the proceeds on trust for us, in a separate account, to the extent of the amount you owe us.

13.3 Right to recover. If you do not pay any amount by its due date, or an Insolvency Event occurs, we may, in addition to any other right, recover and resell the Goods to which we retain title. You irrevocably authorise us and our agents to enter any premises where the Goods are stored, during business hours and after reasonable notice, for the purpose of recovering them, and you must give us all reasonable assistance to do so. We will account to you for any proceeds of resale in excess of the amount you owe us and our costs of recovery and resale.

13.4 Security interest. You acknowledge that these Terms constitute a security agreement for the purposes of the PPSA, and that you grant us a security interest in all Goods supplied by us to you, now or in the future, and their proceeds, to secure payment of all amounts you owe us from time to time. The security interest is a purchase money security interest to the extent permitted by the PPSA.

13.5 Registration. You consent to us registering a financing statement or financing change statement on the PPSR, and you must promptly sign any document and provide any information we reasonably require to perfect our security interest. You waive your right to receive a verification statement under section 157 of the PPSA.

13.6 Contracting out. To the extent permitted by section 115 of the PPSA, where you are not a Consumer and the Goods are not acquired for personal, domestic or household purposes, you and we agree that sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA do not apply, and you waive your rights to receive any notice under the PPSA that we are otherwise required to give, except a notice we cannot contract out of.

13.7 Confidentiality under the PPSA. You and we agree not to disclose information of the kind described in section 275(1) of the PPSA, except as permitted by section 275(7).

13.8 Costs. You must pay our reasonable costs of registering, maintaining and releasing a registration on the PPSR in relation to Goods supplied on Credit Terms.

Part C: Artwork, proofs and goods

14. Artwork and files supplied by you

14.1 Your responsibility. You are solely responsible for the content, accuracy, spelling, grammar, punctuation, legibility, contact details, prices, claims, legal notices and fitness for purpose of all Customer Materials, and for ensuring that they comply with the law.

14.2 File specifications. Customer Materials for print must be supplied print ready to the specifications we publish or provide, which ordinarily means a vector PDF with fonts embedded or outlined, images at 300 dots per inch at final size, correct dimensions, and the required bleed and safe area. We are not responsible for any defect, colour shift, low resolution, pixelation, font substitution, missing element, transparency issue or other problem arising from Customer Materials that do not meet our specifications.

14.3 Checks we may do. We may, but are not obliged to, check Customer Materials. Any check or preflight we or our systems perform is for our production purposes only and does not transfer responsibility for the Customer Materials to us.

14.4 File preparation. If Customer Materials need correction, conversion, redrawing, vectorising, resizing or other preparation, we will tell you before doing the work, and it will be charged at the Excess Rate (clause 23.3(e)) or as quoted, or drawn from your included Design Hours where applicable.

14.5 Fonts. You warrant that you hold licences for any fonts you supply or ask us to use, sufficient for their intended use. We may substitute a font you have not supplied with the nearest reasonable equivalent, and will show the substitution in the Proof.

14.6 Measurements and specifications. You are solely responsible for all measurements, dimensions, quantities, sizes (including garment sizes) and site conditions that you give us. We produce to the measurements you give us and do not verify them. Goods produced to measurements or specifications you supplied are not defective because they do not fit or suit the intended location, surface, vehicle or wearer.

14.7 Retention of files. We may, but are not obliged to, retain Customer Materials and print files for future reorders. We are not responsible for the loss of any Customer Materials, and you must keep your own copies of everything you supply.

14.8 Supplied items. You must not send us originals that are irreplaceable. We are not responsible for loss of or damage to originals, media or devices you supply, except to the extent caused by our negligence.

15. Proofs and approval

15.1 Proofs. Unless an Order states that no Proof will be provided, or the Order is placed with a Self-Approval, we will provide a Proof before production of Custom Goods or publication of Deliverables.

15.2 Your review. You must review every Proof carefully and in full, including spelling, grammar, names, numbers, contact details, prices, dates, legal notices, colours, sizes, dimensions, layout, placement, quantities, garment sizes, orientation, cut lines and finish. Mockups and 3D previews are indicative of placement and appearance only; the Proof is the final production file, and dimensions apply only where stated on the Proof.

15.3 Approval. You may approve a Proof in Pulse, on a review page, by email, by message, in person or by any other written means. Approval by you or any Authorised User is final and binding. Once a Proof is approved, we will produce the Goods or publish the Deliverables in accordance with the Approved Proof, and you accept responsibility for every element of the Approved Proof.

15.4 Self-Approval. Where you design online, upload artwork online, or otherwise order through the Website or Pulse with a Self-Approval, you acknowledge that:

(a) the rendered Proof shown to you at checkout is the Approved Proof for that line;

(b) our staff may not review it before production, and any review we do is not a check of your content;

(c) ticking the approval box and proceeding is your approval under clause 15.3; and

(d) if you ask us to design for you, or you choose not to Self-Approve, we will prepare a Proof for your approval before production.

15.5 No liability for approved errors. We are not liable for any error, omission or defect that appears in an Approved Proof, or for any loss or cost arising from it, including reprinting. Reprints to correct errors in an Approved Proof are chargeable as a new Order.

15.6 Revision rounds. Unless the Quote, Proposal or Plan Documents state otherwise, each Order for Custom Goods includes the initial Proof and one additional round of revisions. Further rounds are charged at the Excess Rate (clause 23.3(e)), quoted before we proceed, or drawn from included Design Hours.

15.7 No production without approval. We do not commence production of Custom Goods until the Proof is approved, and time does not run on any estimated turnaround while a Proof is awaiting your approval.

15.8 Rush orders. If you request a rush Order or an Order with a deadline, and you agree in writing that we may proceed on the most recent Proof if we do not receive your approval by a stated time, we may produce the Goods in accordance with that Proof after that time, and that Proof is then treated as an Approved Proof. Rush Orders may attract a rush charge, which will be quoted.

15.9 Proceeding without a Proof. If you instruct us to proceed without a Proof, or with an unapproved Proof, you accept all risk of errors and defects that a Proof would have revealed.

15.10 Physical samples. Hard copy proofs, pre-production samples and colour swatches are available on request for an additional charge and will extend the estimated turnaround.

16. Tolerances and variations

16.1 Colour. Colours on screens, in digital Proofs, in mockups and in previous print runs will differ from the finished Goods. Colour varies between devices, substrates, materials, inks, print processes, Production Partners and production runs. Unless we have agreed in writing to match a specified Pantone or physical sample within a stated tolerance, reasonable colour variation is not a defect. Where we agree to match a colour, a variation within generally accepted industry tolerances is not a defect.

16.2 Materials and finishes. Paper, card, vinyl, fabric, garments, substrates and other materials may vary in shade, weight, texture, thickness and finish between batches and suppliers. Garment sizing, fit and colour vary between brands, styles and dye lots, and you are responsible for checking the supplier’s size charts before ordering. Registration, trimming, cutting, folding, stitching, embroidery and decoration placement may vary within reasonable industry tolerances, ordinarily up to 3 mm for trimming and cutting and up to 10 mm for decoration placement on garments.

16.3 Quantity. Due to the nature of print and manufacturing processes, we may supply up to 5% more or fewer than the quantity ordered (or up to 10% for runs of fewer than 100 units, or for printed promotional products, labels, rolls and bulk items). The price will be adjusted pro rata for any shortfall beyond 2% and you are not required to pay for overs, except where the Quote states otherwise.

16.4 Supplier stock and substitutions. Where a garment, blank, colour, material or product is discontinued, out of stock or unavailable from the supplier, we will tell you and may offer a substitute of equal or better quality. We will not substitute a materially different item without your approval. If you do not accept a substitute, we may cancel the affected part of the Order under clause 9.9.

16.5 Natural variation. Handmade, embroidered, engraved, laser cut, heat-applied and natural materials (such as timber, leather and cotton) vary naturally, and that variation is not a defect.

16.6 Screen and digital outputs. Digital Deliverables (including websites, emails and social posts) will display differently across devices, screen sizes, browsers, email clients, operating systems and platform updates. Reasonable variation in display is not a defect.

17. Production partners and bought-in products

17.1 Outsourced production. You acknowledge that we design, proof and manage Orders, and that all or part of the production of Goods, and some Services, is carried out by Production Partners, including printers, sign makers, embroiderers, decorators, manufacturers, wholesalers and carriers in Australia and overseas. References to Goods being “crafted in Bendigo” or “made by Bendigo Graphics” refer to our design, proofing and management of the Order, not to where the Goods are physically manufactured.

17.2 Subcontracting. We may subcontract the performance of any part of the Agreement without your consent. We remain responsible to you for the performance of our obligations under the Agreement, subject to these Terms.

17.3 Bought-in and resold products. Some Goods are bought in from third-party suppliers and resold by us under our own name, including products from wholesale catalogues and online print suppliers. Their specifications, options, pack quantities, tolerances and lead times are set by the supplier, and we pass them on to you in the Quote or on the Website. Where a supplier changes a specification or discontinues a product, clause 16.4 applies.

17.4 Manufacturer warranties. Where Goods come with a manufacturer’s or supplier’s warranty, we will, on request, assist you to claim under it or pass the benefit of it to you to the extent we are able. Those warranties are in addition to your rights under clause 52.

17.5 Direct delivery. Production Partners may deliver Goods directly to you or to a place you nominate, in packaging that does not identify us.

18. Turnaround estimates

18.1 Estimates only. All turnaround times, lead times, ready-by dates, production schedules and delivery dates given by us, including those displayed on the Website, at checkout or in Pulse, are estimates only, made in good faith from our Production Partners’ lead times and our own scheduling. They are not promises or guarantees, and time is not of the essence of the Agreement.

18.2 When estimates run. An estimated turnaround runs from the latest of: acceptance of the Order, receipt of the Deposit in cleared funds, receipt of all Customer Materials in the required form, approval of the Proof, and satisfaction of the production payment gate in clause 10.2. It is measured in Business Days and excludes delivery time unless stated otherwise.

18.3 Delays. Estimates may change because of Production Partner workloads, stock availability, freight and courier delays, public holidays, equipment failures, Force Majeure Events, or delays caused by you. We will tell you if we become aware that an estimate is likely to be materially exceeded.

18.4 Deadlines. If your Order is for a particular event or deadline, you must tell us in writing before you accept the Order. A deadline binds us only if we expressly agree in writing to meet it, and then only on the condition that you meet every requirement of clause 18.2 on time.

18.5 No liability for delay. Subject to clause 52, we are not liable for any loss, cost or damage arising from any delay in the supply of Goods or Services, and a delay does not entitle you to cancel an Order or withhold payment, except where the delay is caused by our breach and exceeds 30 Business Days beyond the estimate, in which case you may cancel the affected part of the Order that has not yet been dispatched and receive a refund of the amount paid for that part.

19. Delivery, collection, risk and title

19.1 Collection. Unless delivery is arranged, Goods are available for collection from our premises at Shop 2, 176 Lyttleton Terrace, Bendigo, Victoria 3550 (or another place we notify) during our business hours. We will notify you when the Goods are ready. You must inspect the Goods on collection.

19.2 Delivery. Where we arrange delivery, delivery charges are as displayed at checkout or quoted, and delivery occurs when the Goods are delivered to the address you nominate, left at that address in accordance with your instructions or the carrier’s usual practice, or handed to you or anyone at that address. You are responsible for providing a complete and accurate delivery address and any access instructions. Additional delivery attempts, redirections and storage caused by you are chargeable.

19.3 Risk. Risk of loss of or damage to Goods passes to you on the earliest of: collection by you or your agent; delivery under clause 19.2; our handing the Goods to a carrier you have nominated; and the date 10 Business Days after we notify you that the Goods are ready for collection. Where we arrange delivery with our own chosen carrier, risk passes on delivery.

19.4 Title. Title passes in accordance with clause 13.

19.5 Delivery by instalments. We may deliver an Order in instalments. Each instalment is a separate supply, and a problem with one instalment does not entitle you to reject the others.

19.6 Uncollected Goods. If you do not collect Goods within 30 days after we notify you they are ready, we may charge a reasonable storage fee from that date. If Goods remain uncollected 90 days after that notice, we may, after giving you at least 14 days’ further written notice to your last known email address and phone number, and subject to the Australian Consumer Law and the Disposal of Uncollected Goods Act 1961 (Vic) where it applies, dispose of the Goods by sale, destruction or recycling. All amounts owing for the Goods remain payable, and we may apply any proceeds of sale towards amounts you owe us, our costs of storage and disposal, and then account to you for any balance.

19.7 Refused delivery. If you refuse or fail to accept delivery of Goods that conform to the Order, the Goods are treated as delivered, and you must pay the price and any costs of storage, redelivery or return.

20. No installation, site surveys or measuring

20.1 Supply only. We design, proof and supply Goods. Unless a Service Agreement expressly provides otherwise, we do not install, fit, apply, mount, hang, erect or remove signage, decals, vehicle graphics or any other Goods, do not conduct site surveys, site inspections, measure-ups or vehicle assessments, and do not provide vehicle wraps.

20.2 Your responsibility. You are responsible for: supplying accurate measurements and specifications (clause 14.6); engaging a suitably qualified installer; obtaining any permit, planning approval, landlord consent, council approval, body corporate approval or engineering certification that is required for signage or other Goods; and ensuring that installation, placement and use comply with all laws, standards and your lease.

20.3 Surfaces and vehicles. Adhesive products perform according to the surface they are applied to. We are not responsible for the performance of, or damage caused by, adhesive products on surfaces that are unsuitable, unclean, freshly painted, damaged, textured, low-energy or not prepared in accordance with the application instructions, or for damage to paintwork, glass, fabric or substrates on application or removal.

20.4 Instructions. Where we provide application or care instructions, they are general guidance only. Any referral we give to an installer is a courtesy only, and the installer is engaged by you and is not our subcontractor.

21. Defects, claims and returns

21.1 Inspection. You must inspect Goods promptly on delivery or collection.

21.2 Claim window. You should notify us in writing, with photographs, within 7 days after delivery or collection, of any claim that Goods are defective, damaged in transit, short-supplied, or not in accordance with the Approved Proof or the Order. Notifying us within that window allows us to investigate, and to claim against our Production Partners and carriers. This clause does not limit any right you have under the Australian Consumer Law to make a claim after that period, but a delay in notifying us may be relevant to whether a failure is reasonably attributable to us.

21.3 Our investigation. You must retain, and on request return or make available to us, the Goods the subject of a claim. We may require the Goods or a sample to be returned to us for inspection, at our cost if the claim is valid.

21.4 Our remedy. Subject to clause 52, if Goods are defective or not in accordance with the Approved Proof and the defect is attributable to us or our Production Partners, we will, at our option, reprint, repair or replace the affected Goods, or refund or credit the price paid for them.

21.5 Exclusions. Subject to clause 52, we are not responsible for any defect or damage arising from: errors in an Approved Proof; Customer Materials; measurements or specifications supplied by you; installation, application, mounting or removal by anyone; misuse, neglect, accident, abnormal use or conditions, or failure to follow care or application instructions; exposure to conditions beyond the stated product specification; ordinary fair wear and tear, weathering and fading over time; alterations made by anyone other than us; or matters within the tolerances in clause 16.

21.6 No change of mind. Because Custom Goods are made to order, we do not accept returns, refunds or exchanges for change of mind, incorrect sizes ordered, or incorrect choices made by you. Non-custom Goods may be returned for change of mind only where we have agreed in writing, in resaleable condition, and subject to a restocking fee we will state.

22. Customer-supplied goods

22.1 Risk. Where you supply garments, blanks or other items for us to decorate or print (Supplied Items), you must supply them in good, clean condition, in the quantities and sizes stated, with a reasonable number of spares. Supplied Items are decorated and handled at your risk.

22.2 Liability for Supplied Items. Decoration processes can damage items, and Supplied Items vary in their suitability for decoration. Subject to clause 52, we are not responsible for pre-existing faults in Supplied Items, for their suitability for the chosen process, or for damage or failure that occurs in the ordinary course of production. If a Supplied Item is spoiled because of our error, our liability is limited to a refund or credit of up to $25 per spoiled item towards its replacement, together with the decoration charge for that item.

22.3 Uncollected Supplied Items. Clause 19.6 applies to Supplied Items and to any excess or spoiled items not collected.

Part D: Design and creative services

23. Design services, revisions and design hours

23.1 Scope. Design Services include only what the Quote, Proposal or Plan Documents describe. Anything else is a variation, which we will quote before starting.

23.2 Rounds of revisions. Unless the relevant documents state otherwise, Design Services include the initial concept or concepts stated and two rounds of revisions on the chosen concept. A round is one consolidated written list of changes from your nominated contact. Feedback that arrives in pieces may be combined and counted as one round, or counted as several. A change of direction after a concept, layout or stage has been chosen or approved is a variation, not a revision.

23.3 Design Hours. Where your Plan or Service Agreement includes Design Hours:

(a) Design Hours are allocated per calendar month (or other period stated) and are used by any Design Services we perform for you, including design, artwork, file preparation, revisions, website care, advertising creative, briefing, coordination, supplier correspondence relating to design and production, and project management;

(b) Design Hours are recorded in units of 15 minutes, and the hours used are shown in Pulse and in your monthly report;

(c) unused Design Hours expire at the end of each period and do not roll over, accumulate, carry forward or convert into credit, cash or any refund, including on termination;

(d) Design Hours cover design time only, and do not cover the cost of Goods, print production, Third-Party Materials, Ad Spend or third-party crew;

(e) where a request would exceed the Design Hours remaining for the period, we will tell you and quote the additional work, and we will not perform it without your approval. Approved additional time is charged at $200 per hour plus GST, in units of 15 minutes, unless your Plan Documents or Quote state a different rate (the Excess Rate); and

(f) any value we attribute to Design Hours (for example “25 design hours, valued at $200 an hour”) is a description of the standalone value of the time included in the Plan, and is not a price, credit or amount refundable to you.

23.4 Prioritisation. We schedule Design Services across our clients in good faith. Design Hours are an allowance of time, not a commitment to deliver a particular volume of Deliverables or to start a request within a particular time.

23.5 Design invites and online design tools. The Website and Pulse include tools that let you create or edit designs yourself (including our design editor, templates and design invites). Designs you create with those tools are Customer Materials, and you are responsible for them under clause 14. Templates, layouts, graphic elements, fonts, icons and stock images made available in those tools are licensed to you only for use in Goods ordered from us, unless we state otherwise.

23.6 Stock photography and icons. Stock photographs supplied through our tools are sourced from Unsplash and are subject to the Unsplash licence and any attribution requirements displayed with them. Icons are sourced from open icon libraries under their respective licences. You must not use stock images in a way that suggests endorsement by the people or brands depicted, or that breaches the licence terms.

23.7 Trade marks and names. We do not conduct trade mark, business name or domain name searches or clearances unless expressly engaged to do so. You are responsible for confirming that a name, logo or mark we design is available and suitable for your use and registration before you rely on it.

23.8 Brand guidelines. Brand guidelines we prepare record how your brand should be applied. They do not constitute legal advice, and do not guarantee that your brand is registrable, distinctive or free from challenge.

24. Content Days, photography and video

24.1 Scheduling. Content Days are scheduled by agreement with reasonable notice. Content Days included in a Plan are allocated per quarter (or other stated period) and do not roll over unless we agree in writing.

24.2 Rescheduling and cancellation. If you cancel or reschedule a Content Day less than 3 Business Days before it is due, or if the Content Day cannot proceed because of you (including because the location, people, products or permissions are not ready), the Content Day is treated as used, and you must pay any third-party costs that cannot be cancelled, including photographer, videographer, crew, equipment hire, venue and travel costs. If we cancel a Content Day, we will reschedule it at no additional charge. Weather-dependent shoots may be rescheduled by either party without charge where conditions make the shoot unsafe or unsuitable.

24.3 Third-party crew. Where a photographer, videographer or other crew is engaged for a Content Day or shoot, their fees are payable by you at cost (or as quoted), and we will obtain your written approval of those fees before engaging them. Third-party crew may impose their own licence terms on their work, which we will tell you about.

24.4 Locations, people and permissions. You are responsible for: access to and safety of locations you nominate; obtaining permission to photograph or film at any location that is not yours; obtaining signed model releases from your staff, customers and any other identifiable people, and parent or guardian consent for anyone under 18; ensuring that no confidential information, personal information or third-party trade marks appear in shot unless you have the right to include them; and compliance with any workplace health and safety requirements that apply at your premises. We may decline to photograph any person who has not given consent.

24.5 Licence. Subject to clause 46, on payment in full, you receive the rights in Final Deliverables from a Content Day described in clause 46. Raw files, unedited footage, outtakes and unselected images are not Final Deliverables and remain ours, unless the Plan Documents state otherwise. We may retain copies of all material for archival purposes and for use under clause 47.

Part E: Marketing Plans and marketing services

25. Application

25.1 This Part applies to Marketing Services, whether supplied under a Marketing Plan, a Service Agreement, a Proposal or a Quote. Where a Service Agreement applies, it prevails over this Part to the extent of any inconsistency.

26. Marketing Plans

26.1 Plans. At the Effective Date, we offer the following Marketing Plans, each as described on the Website and in the Plan Documents:

(a) the Studio Plan, at $2,200 per month plus GST; and

(b) the Department Plan, at $4,900 per month plus GST,

each including 25 Design Hours per calendar month, and each for one business location. Each additional business location is $450 per month plus GST. The services, channels and volumes included in each Plan are those described in the Plan Documents.

26.2 Fees in advance. Plan Fees are payable monthly in advance, on the billing date stated in the Plan Documents (or, if none is stated, on the date the Plan starts and on the same day of each following month), by automatic charge to your saved payment method under clause 11. The first month’s Fees are payable before the Plan starts.

26.3 Minimum Term. Each Marketing Plan has a Minimum Term of three months from its start date, unless the Plan Documents state a different Minimum Term. After the Minimum Term, the Plan continues on a month-to-month basis until ended under this clause or clause 57.

26.4 Ending a Plan. Either party may end a Marketing Plan, without giving a reason, by giving at least 30 days’ written notice, which may expire on or after the last day of the Minimum Term but not before it. Plan Fees remain payable until the notice expires. If notice expires part way through a billing month, the Fees for that month are adjusted pro rata.

26.5 Early termination. If you end a Marketing Plan so that it ends before the end of the Minimum Term, otherwise than because of our material breach under clause 57.2 or under clause 5.2, you must pay the Plan Fees that would have been payable for the balance of the Minimum Term, less any costs we save as a result of the early termination. You acknowledge that this amount reflects the set-up work, planning and resourcing we commit at the start of a Plan, which is recovered over the Minimum Term.

26.6 Changing plans. You may move to a higher Plan at any time, effective from the next billing date, or earlier if we agree. You may move to a lower Plan with effect from the next billing date after the Minimum Term, on 30 days’ written notice.

26.7 What is not included. Unless the Plan Documents expressly include them, Plan Fees do not include: Ad Spend; print production and the cost of Goods; the fees of third-party photographers, videographers, crew, models, venues or talent; Third-Party Materials licensed for a specific use; the subscription fees of Third-Party Services (including website platforms, hosting, domains, email marketing platforms and listings networks); a rebrand or new brand identity; a full website redesign or build; paid tools you ask us to use; and work beyond the included Design Hours.

26.8 Changes to Plan Fees. After the Minimum Term, we may change Plan Fees on at least 30 days’ written notice under clause 5.2, and you may end the Plan before the change takes effect without any early termination charge.

26.9 Pausing. A Plan may be paused only by written agreement, on the terms we agree at the time.

27. No guarantee of results

27.1 Reasonable care and skill. We will perform Marketing Services with due care and skill, in accordance with the Plan Documents and generally accepted industry practice.

27.2 No guarantee. Marketing outcomes depend on many factors outside our control, including your products, prices, service, reputation, location, competitors, market conditions, seasonality, budget, the algorithms and policies of Third-Party Services, and the behaviour of consumers. Accordingly, and subject to clause 52, we do not promise, warrant or guarantee any particular result, including any level of sales, revenue, return on investment or Ad Spend, leads, enquiries, calls, bookings, traffic, impressions, reach, engagement, followers, reviews, rankings in search engines or maps, cost per result, or approval of any advertisement or listing. Forecasts, benchmarks, projections, case studies and examples of results achieved for other clients are illustrations only.

27.3 Reporting. Reports and dashboards in Pulse draw on data from Third-Party Services and tracking tools. That data may be delayed, sampled, modelled, estimated, incomplete or revised by the Third-Party Service, and attribution between channels is an estimate. We do not warrant the accuracy of third-party data.

28. Advertising, Ad Spend and account ownership

28.1 Your accounts. Advertising accounts (including Google Ads and Meta business and ad accounts), analytics properties, Google Business Profiles, social media pages and profiles, email marketing accounts and similar accounts that we set up or manage for you are to be held in your name, or in a business manager or account structure that you own and control, with us granted access as a manager or partner. Where we create an account for you, we will do so in your name and give you owner or administrator access, and on request, or on termination, transfer any remaining ownership or access we hold to you, once all amounts owing to us are paid.

28.2 Ad Spend paid directly. Unless the Plan Documents provide otherwise, you pay Ad Spend directly to the Advertising Platform, using your own payment method, and the Advertising Platform’s terms govern that payment. You are responsible for all Ad Spend incurred in your accounts, including Ad Spend in excess of the budget, which may occur because of how the Advertising Platform delivers advertising. Advertising Platforms may charge more than a daily budget on some days and are responsible for their own billing.

28.3 Ad Spend billed by us. Where the Plan Documents provide that we pay the Advertising Platform and bill Ad Spend to you, we will bill the Ad Spend actually charged by the Advertising Platform (monthly in arrears unless otherwise stated) at cost plus any management fee stated in the Plan Documents, you authorise us to charge it under clause 11, and we may pause your advertising if Ad Spend billed by us is not paid when due.

28.4 Budgets and approvals. We will not increase your Ad Spend budget beyond the amount approved by you or your Authorised Representative. Ad Spend budgets are separate from and additional to our Fees.

28.5 Advertising Platform decisions. Advertising Platforms may reject, limit, disapprove or remove advertisements, restrict or suspend accounts, change eligibility, policies, targeting options, pricing and features, and charge for invalid activity, at their discretion. We are not responsible for those decisions or for their consequences, but we will use reasonable efforts to help you respond to them.

28.6 Your warranties for advertising. You warrant that your business, products, offers and landing pages comply with the policies of each Advertising Platform and with the law, and that all claims made in advertising based on information you supply are true, current and able to be substantiated.

29. Third-party platforms, policies, suspensions and outages

29.1 Third-Party Services. Marketing Services, Website Services and Pulse rely on Third-Party Services, including Google, Meta, Mailchimp, social media platforms, publishing providers, listings networks, email and SMS carriers, website platforms and hosting providers. Third-Party Services are provided by their operators under their own terms and policies, which you must comply with, and which may change at any time.

29.2 No responsibility for third parties. We do not control, and subject to clause 52 are not responsible for, the availability, performance, security, pricing, policies, algorithms or decisions of any Third-Party Service, including any outage, data loss, removal of content, suspension or termination of an account or page, loss of reviews, change in reach, deprecation of an interface, or change to an application programming interface that affects any Service or feature of Pulse.

29.3 Changes to services. If a change to a Third-Party Service prevents or materially changes our ability to supply a Service, we may substitute a reasonably equivalent Service, method or provider, or remove the affected Service and make an equitable adjustment to the Fees. If the change materially reduces the value of a Recurring Service to you, you may end that Recurring Service on 14 days’ written notice without any early termination charge.

29.4 Account suspensions. If a Third-Party Service suspends or restricts your account because of your content, products, conduct or history, or because of Customer Materials, you remain responsible for the Fees for Services we perform, and we are not obliged to supply the affected Service until the account is restored.

30. Approvals and your responsiveness

30.1 Approval before publication. Unless you have given a standing approval under clause 30.3, we will submit content (including social posts, advertisements, emails, landing pages, website changes and campaigns) for your approval before publishing it, and we will not publish content without approval.

30.2 Response times. You must review and respond to approval requests, whether approving or requesting changes, within 3 Business Days of the request, so that we can maintain the agreed cadence of publishing. We may follow up requests that are not answered.

30.3 Standing approvals. You may give standing approval in Pulse or in writing for particular types of content to be published without individual approval (for example, replies to 4 and 5 star reviews, reposts, or recurring posts in an approved template). You may withdraw a standing approval at any time by written notice or in Pulse.

30.4 If you do not respond. If you do not respond to an approval request within 5 Business Days, we may, at our option, hold the content, reschedule it, or replace it with other approved content. Scheduled publishing dates missed because content was not approved in time are not carried forward, the Design Hours spent on the content are used, and the Plan Fees remain payable. Nothing in this clause permits us to publish content that has not been approved.

30.5 Approved content. Once content is approved, you are responsible for it under clauses 44 and 45 as if it were Customer Materials, except to the extent it contains material we introduced without your knowledge after approval.

30.6 Information you provide. You must provide timely information about your offers, prices, stock, opening hours, events, changes to your business and anything else that affects content we publish, and you must tell us promptly if published content becomes inaccurate.

31. Reviews, testimonials and listings

31.1 Genuine reviews only. We will not, and you must not ask us to, write, post, buy or procure fake reviews, reviews by people who are not genuine customers, or reviews by your staff or connected persons presented as independent; offer or give incentives, discounts, gifts or entries for reviews or for positive reviews; selectively ask for reviews only from customers likely to be positive (review gating); suppress, hide or remove genuine negative reviews other than through a platform’s legitimate reporting process; or present a review, testimonial or rating in a way that is misleading.

31.2 Review requests. Review requests sent by us or through Pulse are sent to customers without regard to whether they are likely to be positive, and comply with the policies of the relevant platform. You warrant that you have the right, including any required consent, to contact the customers to whom review requests are sent.

31.3 Review replies. Where we reply to reviews for you, we reply in your voice and on your behalf. Replies to critical reviews are drafted for approval before being posted, unless you have given a standing approval. You are responsible for the content of replies you approve, and for ensuring that no personal or health information about the reviewer is disclosed in a reply.

31.4 Testimonials. You warrant that every testimonial, review excerpt, rating and endorsement you provide or approve for use in marketing is genuine, current, used with the consent of its author, and not misleading, and that its use is lawful for your profession or industry (see clause 45).

31.5 Listings. Listings and directory services are provided through third-party networks. We do not control whether, when or how a directory publishes, updates or removes a listing, or how long a network takes to process changes. Listings subscriptions are charged per the Plan Documents and may be subject to a minimum term set by the network, which we will tell you before you subscribe.

32. Email, SMS and calls to your customers

32.1 Your compliance. Where we send, or enable you to send, email, SMS, messages or calls to your customers, leads or contacts (including through Pulse, Mailchimp, our own email tools, automated follow-ups and missed-call text-back), you are the sender for legal purposes, and you are responsible for ensuring that each recipient has given the consent required by law, that each message identifies you as the sender and contains a functional unsubscribe facility where required, and that you comply with the Spam Act 2003 (Cth), the Do Not Call Register Act 2006 (Cth), the Telecommunications (Telemarketing and Research Calls) Industry Standard, the Privacy Act 1988 (Cth), and the equivalent laws of every jurisdiction in which your recipients are located (including, in the United States, the CAN-SPAM Act, the Telephone Consumer Protection Act and applicable carrier registration requirements for business text messaging).

32.2 Lists. You warrant that every contact list you provide or import was collected lawfully, with any required notice and consent, and that you have the right to use it for the purposes for which you ask us to use it. We may refuse to use a list, or pause sending, if we reasonably believe that sending would breach the law or the policies of a Third-Party Service, or where bounce, complaint or unsubscribe rates indicate a problem.

32.3 Unsubscribes. We will process unsubscribe requests received through our systems, and you must promptly process unsubscribe requests received by you.

32.4 Call tracking and recording for you. Where we provide tracking phone numbers, call recording, transcription or call analytics for your business, you are responsible for giving callers any notice required by law that calls may be recorded (including in jurisdictions that require the consent of every party to a call), and we will configure a recorded notice or whisper message at your request.

Part F: Websites

33. Website Services

33.1 Scope and platform. Website Services are supplied as described in the Quote, Proposal or Service Agreement, which will name the platform on which the website is built (for example Framer or Squarespace) and count what is included. A change of platform, and pages, templates, collections, products, integrations or update passes beyond those stated, are variations.

33.2 Platforms, hosting and domains. Websites are hosted by, and operate on, third-party platforms and hosting providers. Unless otherwise agreed:

(a) the platform subscription, hosting plan, domain name and any paid apps, plugins, fonts or integrations are to be held in your name and paid by you directly to the provider, or, where we hold them for you, are passed on to you at cost plus any fee we have stated;

(b) domain names are to be registered in your name, or in the name of your business entity, as registrant, and where we register a domain for you we will record you as registrant and provide you with the credentials to control it;

(c) price increases by a provider are passed on to you; and

(d) where we hold a platform or domain account for you, we will transfer it to you on request, once every amount owing to us is paid.

33.3 Content. You must supply all content for the website in the form, and by the date, agreed. Legal, compliance and regulatory content (including privacy policies, terms, disclaimers, cookie notices, product safety information and professional registrations) is supplied and approved by you, and we do not advise on or verify it.

33.4 Launch and acceptance. Before launch, you review the website on its staging address. Launch follows your approval (or deemed approval under the Proposal) and payment of the balance of the Fees. Launch is acceptance of the website as built. After launch, the website is your responsibility to check, operate and use.

33.5 Defect period. For 30 days after launch, we will correct, at no charge, any defect in functionality we built that causes the website not to work as approved. Defects do not include new content, new features, design changes, or changes caused by you, a third party, a platform update, a browser update or content added after launch.

33.6 Website care and maintenance. After the defect period, updates, changes and maintenance are website care, which is drawn from your included Design Hours where you have them, and is otherwise charged at the Excess Rate (clause 23.3(e)) unless your Plan Documents state otherwise. Website care does not include hosting, backups, uptime monitoring or security monitoring unless the Plan Documents say so.

33.7 Change log. Where we record the changes we make to your website in Pulse, the change log is a convenience record of our work and is not an audit of your website.

33.8 Accessibility. We will apply reasonable accessibility practices in the designs we build. Unless expressly engaged to do so, we do not audit, test or certify a website against the Web Content Accessibility Guidelines or any accessibility standard, and we do not warrant that a website complies with the Disability Discrimination Act 1992 (Cth), the Americans with Disabilities Act or any equivalent law. Content you add after launch may affect accessibility.

33.9 Search engine optimisation. Search engine optimisation work follows current recommended practice, but search engines control rankings and change their algorithms frequently. Clause 27.2 applies to all search-related work.

33.10 Security and backups. Website platforms are responsible for the security and availability of their hosting. You are responsible for keeping your logins secure, for maintaining your own backups of your content where the platform permits, and for your email and domain records.

33.11 Forms, analytics and tracking on your website. Where we add forms, analytics, pixels, tracking tags or chat tools to your website, you are responsible for ensuring your website’s privacy policy and any cookie or consent notice accurately describe the collection, and for the lawful handling of the data collected.

Part G: Pulse, our client portal

34. Licence and restrictions

34.1 Licence. Subject to the Agreement and to payment of any applicable Fees, we grant you a non-exclusive, non-transferable, non-sublicensable, revocable licence, for the term of your Account, for you and your Authorised Users to access and use Pulse for your internal business purposes, in accordance with these Terms and any documentation or instructions we provide.

34.2 Restrictions. You must not, and must not permit anyone to: sublicense, sell, resell, rent, lease or otherwise make Pulse available to any third party (other than Authorised Users); use Pulse for the benefit of any person other than you; copy, modify, translate or create derivative works of Pulse; access Pulse in order to build a similar or competitive product; remove any proprietary notice; or do anything prohibited by clause 7.

34.3 Ownership of Pulse. Pulse, the Website and all Background IP are and remain the property of us or our licensors. Except for the licence in clause 34.1, no right, title or interest in Pulse is granted to you. If you provide feedback or suggestions about Pulse, we may use them without restriction or obligation to you.

34.4 Modules. The features available to you in Pulse depend on your Account, your Plan and the modules we enable for you. We may enable, disable, add or change modules and features from time to time, subject to clause 5.2 where the change is detrimental to a Recurring Service for which you pay.

35. Availability, support, changes and beta features

35.1 Availability. We will use reasonable efforts to make Pulse available, but, unless a Service Agreement includes a service level, Pulse is provided without any guaranteed availability, uptime, response time or service level. Pulse may be unavailable because of scheduled or emergency maintenance, failures of Third-Party Services or hosting, network failures, security incidents or Force Majeure Events.

35.2 Support. Support is provided by email and through Pulse during our business hours.

35.3 Changes. We continually develop Pulse and may change its features, design, workflows and underlying technology at any time.

35.4 Beta and preview features. Features we identify as beta, preview, early access, experimental or “coming soon” are provided as is, may not work correctly, may be changed or withdrawn at any time without notice, and are excluded from any service level or warranty to the extent the law permits.

35.5 Not a system of record. Pulse is a tool to help you work with us. It is not designed as your accounting system, customer relationship system of record, or backup of your data or content. You must maintain your own records and backups of anything important to you.

36. Integrations and connected accounts

36.1 Authorisation. When you connect a Connected Account to Pulse, or give us access to a Connected Account (including through an OAuth sign-in, an access token, an API key or by adding us as a user, manager or partner), you authorise us and Pulse, for the term of the Agreement and until you revoke access, to access, retrieve, store, display, analyse and process data from that account, and to take the actions in that account that are necessary to provide the Services you have requested, including publishing posts, replying to reviews, managing advertising, sending email campaigns and retrieving reports.

36.2 Your warranty of authority. You represent and warrant that you are the owner of, or are authorised by the owner of, each Connected Account you connect or give us access to, that you have authority to grant the access and permissions granted, and that our access and use in accordance with the Agreement will not breach the terms of the Connected Account or any law.

36.3 Third-party terms. Your use of Connected Accounts through Pulse is also subject to the terms of the relevant Third-Party Service, including (for example) the Google APIs Terms of Service and the policies of Meta. Pulse’s use of information received from Google application programming interfaces adheres to the Google API Services User Data Policy, including its limited use requirements.

36.4 Publishing providers. Pulse publishes to social media and similar platforms through third-party publishing providers and through our own registered application with the relevant platform. Content published through our own application may display our application’s name as the publishing source.

36.5 Revoking access. You may disconnect a Connected Account in Pulse, or revoke our access directly in the Third-Party Service, at any time. Disconnecting a Connected Account will stop the Services that depend on it, and scheduled content that relies on it will not be published. Fees for Recurring Services remain payable.

36.6 Accuracy of connected data. We do not warrant the accuracy, completeness or timeliness of data retrieved from Connected Accounts.

37. Client Data and our licence

37.1 Ownership. As between you and us, you own the Client Data. Nothing in the Agreement transfers ownership of Client Data to us.

37.2 Our licence. You grant us a non-exclusive, worldwide, royalty-free licence, for the term of the Agreement and any period afterwards needed to comply with clause 41 and the law, to host, copy, store, transmit, display, process, analyse, adapt and use Client Data (and to permit our service providers to do so on our behalf) to the extent necessary to provide, maintain, secure, support and improve the Services and Pulse, to comply with law, and to enforce the Agreement.

37.3 Aggregated data. We may create and use aggregated and de-identified data derived from Client Data and the use of Pulse (which does not identify you, your customers or any individual) to operate, analyse, benchmark and improve our services. We will not sell Client Data, and we will not use Client Data to train machine-learning models that are made available to other clients or third parties.

37.4 Your customers’ personal information. Where Client Data includes personal information about your customers, leads, callers, contacts or staff, we handle that personal information on your behalf and in accordance with your reasonable lawful instructions, the Agreement and our Privacy Policy. You are responsible for: having a privacy policy and collection notices that permit the collection and disclosure of that personal information to us and our service providers (including overseas service providers named in our Privacy Policy); obtaining any consent required by law; and responding to requests from those individuals, with our reasonable assistance. We will notify you without undue delay if we become aware of an eligible data breach affecting that personal information, and will cooperate with you in assessing and notifying it.

37.5 Your responsibility for Client Data. You are solely responsible for the accuracy, quality, legality and integrity of Client Data and for the means by which you acquired it.

38. Staff access and support

38.1 Support access. You authorise our staff and contractors to access your Account and your Client Data, including by viewing Pulse as you see it, to the extent reasonably necessary to provide support, perform the Services, investigate problems, prevent fraud or abuse, or comply with law.

38.2 Acting on your behalf. Because we act for our clients, our staff may perform actions in your Account on your behalf, including preparing and submitting content for approval, placing and updating Orders, and uploading files. Actions taken by our staff while viewing your Account are logged with the identity of the staff member. Our staff will not approve content, accept a Quote or Proposal, sign a document, make a payment or change your payment method on your behalf unless you have asked them to do so in writing.

38.3 Confidentiality. Our staff and contractors who access Client Data are bound by confidentiality obligations.

39. Automated and machine-learning tools

39.1 What they are. Pulse, the Website and our Services use automated and machine-learning tools, including Design Intelligence, to help draft and suggest copy, designs, layouts, post captions, review replies, email replies, call summaries, transcripts, lead scores, product recommendations, marketing plans and other content. Some of these tools are provided by third-party model providers, and inputs may be processed by those providers in accordance with our Privacy Policy.

39.2 Review before use. Outputs of automated and machine-learning tools may be inaccurate, incomplete, out of date, biased or inappropriate, and similar outputs may be generated for others. You must review, and where necessary correct, any output before relying on it, approving it, publishing it or using it, and you are responsible for any output you approve, publish or use. Outputs are not legal, financial, medical, tax or other professional advice.

39.3 Ownership of outputs. To the extent we hold any rights in an output generated for you, clause 46 applies to it as a Deliverable. We do not warrant that any output is protected by copyright, is original, or does not infringe the rights of a third party.

39.4 No automated decisions about you. We do not use automated or machine-learning tools to make decisions that have a legal or similarly significant effect on you without a person reviewing them. Credit decisions, stop supply decisions and decisions to decline an Order are made by our staff.

39.5 Restrictions. You must not use automated tools in Pulse to generate content that breaches clause 7 or 45, and you must not attempt to extract, reverse engineer or misuse the underlying models or prompts.

40. Security and your responsibilities

40.1 Our security. We will implement and maintain reasonable technical and organisational measures designed to protect Client Data against unauthorised access, use, disclosure, modification and loss, including access controls, encryption of stored integration credentials, logging of administrative actions and multi-factor authentication for staff access where available.

40.2 No absolute security. No system is completely secure. Subject to clause 52 and our obligations under the Privacy Act 1988 (Cth), we do not warrant that Pulse or the Website will be free from security incidents, errors or interruptions, and we are not liable for loss arising from a security incident that occurs despite our compliance with clause 40.1.

40.3 Your security. You are responsible for the security of your own devices, networks, email accounts and Connected Accounts, for the credentials of your Authorised Users, and for enabling multi-factor authentication where it is offered.

41. Suspension, termination and data export

41.1 Suspension. We may suspend your access to Pulse, or any part of it, immediately and without liability: if we reasonably believe it is necessary to protect the security, integrity or availability of Pulse, the Website, our other clients or any Third-Party Service; if we reasonably believe you or an Authorised User has breached clause 7, 34 or 36.2; if required by law or by a Third-Party Service; or under clause 12. We will tell you of the suspension and its reason as soon as practicable, and restore access once the reason for suspension is resolved.

41.2 Account closure. Either party may close an Account that is not linked to a Recurring Service on 30 days’ written notice. Closing an Account does not affect any Order already accepted or any amount owing.

41.3 Data export. For 30 days after termination of your Account or of the Recurring Service to which it relates (the Export Period), on written request, and provided every amount owing to us has been paid, we will provide you with, or allow you to download, a copy of your Client Data held in Pulse in a commonly used format we choose (for example CSV, PDF or original file formats), together with Final Deliverables not previously provided to you. Exports requiring custom work may be charged at our then-current hourly rate.

41.4 Deletion. After the Export Period, we may delete or de-identify Client Data held in Pulse, except where we are required or permitted by law to retain it, where it forms part of our business records (such as orders, invoices, signed documents, Proofs and communications), or where it is held in backups that are deleted in the ordinary course. Our Privacy Policy explains how long we retain personal information.

Part H: Proposals, agreements and communications

42. Proposals, service agreements and electronic signatures

42.1 Proposals. A Proposal is valid for the period stated in it, or 30 days if none is stated. A Proposal is accepted when you accept it in Pulse or on its review page, sign it, accept it in writing, or pay the first payment it requires. Where a Proposal offers optional stages, only the stages you select form part of the Agreement.

42.2 Electronic dealings. You agree that the Agreement, and every Quote, Proposal, Service Agreement, Proof approval, variation, notice and other communication under it, may be made, given, accepted and signed electronically, in accordance with the Electronic Transactions Act 2000 (Vic) and the Electronic Transactions Act 1999 (Cth).

42.3 Electronic signatures. Where you sign a document in Pulse or on a review page by typing your name, drawing a signature, or ticking a box confirming that you have read and accept the document, and proceeding, you agree that this is your signature, that it identifies you and indicates your intention to be bound, that the method is as reliable as appropriate for the purpose, and that it has the same legal effect as a handwritten signature.

42.4 Records. We record the name, signature, date, time, email address, IP address and device information associated with each electronic acceptance, together with a snapshot of the document accepted and the version of any terms that applied, and we keep a copy in your Account. Those records are evidence of your acceptance and of the content of the document accepted, in the absence of manifest error.

42.5 Authority to sign. A person who signs or accepts a document for a company or other entity warrants that they are authorised to do so.

42.6 Counterparts. A Service Agreement may be signed in counterparts, and signatures may be exchanged electronically.

43. Communications with you

43.1 Service communications. By placing an Order, creating an Account or engaging us, you agree that we may send you (and your Authorised Users) transactional and service communications by email, SMS, phone, Pulse notification and message, including quotes, proofs, approval requests, order and production updates, ready for collection and delivery notices, invoices, receipts, payment reminders, overdue notices, account and security notices, and changes to these Terms. These communications are part of the Services and are not marketing.

43.2 Marketing communications. We will send you commercial electronic messages (such as newsletters, offers and product news) only where you have consented, including consent that may be inferred from our existing business relationship where the Spam Act 2003 (Cth) permits it. Every marketing message will identify us and include a way to unsubscribe. You may unsubscribe at any time by using the unsubscribe link, replying STOP to an SMS, or contacting us. Unsubscribing from marketing does not stop service communications about active Orders and Services. Consent to marketing is never a condition of purchase.

43.3 SMS. Message frequency varies with your Orders and activity. Your carrier’s standard message and data rates may apply. Carriers are not liable for delayed or undelivered messages. Reply HELP for help, or STOP to opt out of marketing messages. If you change or transfer your mobile number, you should first opt out from the old number or tell us your old number, so that messages are not sent to its new holder.

43.4 Automated follow-ups. We may send automated reminders and follow-ups about quotes, proofs, payments, collection, reorders, reviews and care instructions. You can manage these by contacting us.

43.5 Call recording. Calls to and from our phone numbers, including calls answered in the browser by our staff, may be recorded, transcribed and summarised by automated tools, for quality, training, record-keeping, dispute resolution and to action your requests. By continuing a call after being told that it may be recorded, or after reading this clause, you consent to the recording. If you do not wish to be recorded, please tell us at the start of the call, or contact us by email instead.

43.6 Missed calls. If you call us and we miss your call, we may send you a text message to follow up.

43.7 Email monitoring. Emails sent to us may be processed by automated tools to file them, identify the records they relate to and suggest actions and draft replies, which our staff review.

Part I: Rights, risk and liability

44. Your content and warranties

44.1 Warranties. You represent and warrant, on each occasion you supply Customer Materials or approve a Proof or content, that:

(a) you own, or have obtained all licences, permissions and consents necessary to use and to authorise us to use, reproduce, adapt, print, publish and communicate, the Customer Materials for the purposes of the Agreement;

(b) the Customer Materials, and the Goods and Deliverables produced in accordance with your instructions and Approved Proofs, do not and will not infringe any Intellectual Property Rights, privacy, publicity, confidentiality or other right of any person, and are not defamatory, obscene or otherwise unlawful;

(c) all information, claims, statements, prices, offers, testimonials and representations in the Customer Materials, or approved by you, are true, accurate, current, not misleading or deceptive, and able to be substantiated;

(d) you have obtained every consent, release and notice required by law for the use of the name, image, likeness, voice, personal information or testimonial of any person in the Customer Materials; and

(e) the Customer Materials and their use comply with all applicable laws, industry codes and the policies of any relevant Third-Party Service.

44.2 Licence to us. You grant us, and our Production Partners and service providers, a non-exclusive, worldwide, royalty-free licence to use, reproduce, adapt, modify, print, publish and communicate the Customer Materials for the purposes of performing the Agreement and for the purposes in clause 47.

44.3 Our right to refuse. We may refuse to use any Customer Materials that we reasonably believe breach clause 44.1 or clause 7.

45. Regulated industries and content

45.1 Your obligation. If your business, products or services are regulated, you are solely responsible for ensuring that all Goods, Deliverables, advertising and communications we produce or publish for you comply with the laws, codes and guidelines that apply to you, including where relevant:

(a) for health practitioners and health services, the Health Practitioner Regulation National Law (including the prohibition on testimonials in advertising regulated health services) and the advertising guidelines of the Australian Health Practitioner Regulation Agency and the relevant National Boards;

(b) for therapeutic goods, the Therapeutic Goods Act 1989 (Cth) and the Therapeutic Goods (Advertising) Code;

(c) for electoral, political and issue advertising, the authorisation requirements of the Commonwealth Electoral Act 1918 (Cth), the Electoral Act 2002 (Vic), the Local Government Act 2020 (Vic) and the equivalent laws of other jurisdictions, including the name and address of the person authorising the material;

(d) for alcohol, gambling, tobacco, e-cigarettes and vaping, food, financial products and credit, real estate, motor vehicles, employment and recruitment, and trades requiring a licence or registration, the laws, codes and licence display requirements that apply to that industry; and

(e) the Australian Consumer Law, including in relation to pricing, comparative advertising, “free” offers, sales and discounts, environmental and origin claims.

45.2 No advice. We are not lawyers or compliance advisers, and nothing we do or say is legal or regulatory advice. Our review of content, where we perform one, is for design and marketing purposes and does not transfer responsibility for compliance to us.

45.3 Authorisation details. For electoral and political material, you must supply the authorisation statement in the form required by law, and you are responsible for its accuracy. We may refuse to produce or publish electoral material that does not carry a compliant authorisation.

46. Intellectual property

46.1 Your materials. You retain all Intellectual Property Rights in the Customer Materials.

46.2 Background IP. We retain all Intellectual Property Rights in Background IP. To the extent Background IP is incorporated into a Final Deliverable, we grant you, on payment in full, a non-exclusive, perpetual, royalty-free licence to use it as part of that Final Deliverable for your business.

46.3 Assignment of Final Deliverables on full payment. Subject to clauses 46.2, 46.4, 46.5 and 46.6, and unless a Proposal, Terms of Engagement or Service Agreement provides otherwise, with effect from the date we receive payment in full, in cleared funds, of all Fees payable for a Final Deliverable (and all other amounts then overdue under the Agreement), we assign to you all of our right, title and interest in the copyright in that Final Deliverable, to the extent that copyright was created by us specifically for you under the Agreement.

46.4 What is not assigned. The following are not assigned to you and remain ours (or our licensors’): Background IP; working files, source files, layered design files, project files, code repositories, raw photographs and footage, and preliminary and draft material; concepts, designs, sketches, layouts and options that you did not select or that were not delivered as Final Deliverables (which we may reuse and adapt for others); templates, style systems and components that we use across clients; and Third-Party Materials. Working and source files may be purchased separately where we agree.

46.5 Before payment. Until payment in full is received, all rights in the Deliverables remain ours, and any use of Deliverables (including Proofs, previews, staging sites and draft files) is unlicensed, except that you may review them for the purposes of approval.

46.6 Third-Party Materials. Third-Party Materials included in Deliverables (including stock photographs, fonts, icons, music, plugins, themes and platform features) are licensed to you on the terms of their licensor, which we will pass on to you where they are material. You must comply with those terms, and where a licence is specific to a use, a new licence may be needed for another use.

46.7 Pulse and templates. Content you create in Pulse or in our design tools using our templates, layouts and elements is subject to clause 23.5.

46.8 Improvements. You grant us a perpetual licence to use any general skills, knowledge, techniques and ideas learned in performing the Agreement, provided we do not disclose your Confidential Information.

47. Portfolio and case studies

47.1 Licence. You grant us a non-exclusive, perpetual, worldwide, royalty-free licence to photograph, reproduce, display and publish the Goods and Deliverables, your business name and logo, and non-confidential descriptions and results of the work (including performance figures you have approved for publication), in our portfolio, on the Website and in Pulse, on social media, in case studies, award entries, proposals and presentations, and in our other marketing, once the work is public.

47.2 Opting out. You may opt out of this licence, in whole or for particular work, at any time by written notice. We will not use work after receiving an opt-out, and will remove it from channels we control within a reasonable time, but we are not required to recall printed materials or remove material already published by third parties.

47.3 Confidential work. We will not publish work that you have told us in writing, before production, is confidential or embargoed, until the embargo ends.

47.4 Credits. We may include a small, unobtrusive credit on websites we build and, where customary, on other Deliverables. You may ask us to remove it.

47.5 Quotes and testimonials. We will seek your approval before publishing a quote or testimonial attributed to you by name.

48. Moral rights

48.1 Consent. To the extent permitted by law, we consent, and will procure that our staff and contractors who are authors of Final Deliverables consent, to you and your licensees doing or omitting to do anything in relation to the Final Deliverables that would otherwise infringe their Moral Rights, including using them without attribution, altering, adapting or modifying them, and using them in any context.

48.2 Your authors. You consent, and will procure that the authors of Customer Materials consent, to our using, adapting and modifying the Customer Materials for the purposes of the Agreement without attribution.

48.3 Our reputation. You must not attribute to us any Deliverable that has been materially altered by anyone other than us in a way that would reasonably be regarded as prejudicial to our reputation.

49. Confidentiality

49.1 Confidential Information. Confidential Information means information of a party (the discloser) that is disclosed to or accessed by the other party (the recipient) in connection with the Agreement and that is by its nature confidential or is marked or described as confidential, including business plans, strategies, customer lists, Client Data, pricing, financial information, unreleased products and campaigns, access credentials, and (in our case) our pricing models, methods, Pulse and Background IP. It does not include information that is or becomes public other than through a breach of this clause, was lawfully known to the recipient before disclosure, is independently developed by the recipient, or is lawfully received from a third party without restriction.

49.2 Obligations. The recipient must keep the discloser’s Confidential Information confidential, use it only for the purposes of the Agreement, and disclose it only to its personnel, Production Partners, service providers and professional advisers who need to know it for those purposes and are bound by confidentiality obligations, or where required by law or the rules of a stock exchange (after giving the discloser notice where lawful).

49.3 Access credentials. Logins, passwords and access you give us are used only for the Services. You should change them, or remove our access, when the relevant Services end.

49.4 Duration. This clause survives termination of the Agreement for 3 years, and indefinitely for trade secrets, access credentials and personal information.

50. Privacy

50.1 We handle personal information in accordance with our Privacy Policy, published at bendigographics.com/privacy-policy, which forms part of the Agreement for information purposes only. Where we handle personal information on your behalf, clause 37.4 applies.

51. Non-solicitation

51.1 Restraint. During the term of any Service Agreement or Recurring Service, and for 6 months after it ends, you must not, without our prior written consent, directly or indirectly engage, employ or solicit for engagement or employment any person who is or was, during the 6 months before the relevant approach, our employee or contractor and with whom you had dealings in connection with the Services.

51.2 Exceptions. This clause does not prevent you from employing a person who responds to a general advertisement not targeted at our personnel, or who approaches you on their own initiative without any solicitation by you.

51.3 Placement fee. If you breach clause 51.1, you must pay us, as a genuine pre-estimate of our loss of the investment in recruiting and training that person and of disruption to our business, a placement fee equal to 20% of the first year’s remuneration offered to that person. This clause does not apply where you are a Consumer.

51.4 Reasonableness. You acknowledge that this restraint is reasonable and necessary to protect our legitimate business interests.

52. Australian Consumer Law

52.1 Non-excludable rights. Nothing in the Agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition, implied or imposed by the Australian Consumer Law or any other law, that cannot lawfully be excluded, restricted or modified (Non-Excludable Rights). If any provision of the Agreement would do so, it is to be read down so that it does not, and applies subject to the Non-Excludable Rights.

52.2 Consumer guarantees. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled: to cancel your service contract with us; and to a refund for the unused portion, or to compensation for its reduced value. You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done, you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

52.3 Limitation for goods and services not of a kind ordinarily acquired for personal use. To the extent permitted by section 64A of the Australian Consumer Law, where Goods or Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, our liability for failure to comply with a consumer guarantee (other than a guarantee under sections 51, 52 or 53 of the Australian Consumer Law) is limited, at our option, to:

(a) in the case of Goods: the replacement of the Goods or the supply of equivalent goods; the repair of the Goods; the payment of the cost of replacing the Goods or of acquiring equivalent goods; or the payment of the cost of having the Goods repaired; and

(b) in the case of Services: the supply of the Services again; or the payment of the cost of having the Services supplied again,

except where you establish that reliance on this limitation would not be fair or reasonable.

52.4 Consumers. If you are a Consumer, nothing in these Terms, including clauses 9.3, 9.5, 10.9, 12.2, 15.5, 18.5, 21, 22.2, 26.5 and 51.3, limits your rights under the Australian Consumer Law, and where there is any doubt, the provision is to be read in the way most favourable to you that is consistent with the Australian Consumer Law.

53. Warranties and disclaimers

53.1 Our warranty. We warrant that we will perform the Services with due care and skill, and that we have the right to grant the rights we grant under clause 46.

53.2 Disclaimer. Except for the warranties expressly given in the Agreement and the Non-Excludable Rights, and to the maximum extent permitted by law, all other representations, warranties, conditions and guarantees, whether express or implied by statute, custom, course of dealing or otherwise, are excluded, including any implied warranty of merchantability or fitness for a particular purpose that is not a Non-Excludable Right. Pulse, the Website, Design Intelligence and beta features are provided on an “as is” and “as available” basis to the extent the law permits.

53.3 Information on the Website. Information on the Website, in Pulse, in our Hub articles, guides and social media is general information only and does not take into account your circumstances. It is not professional advice.

53.4 Reliance on you. You acknowledge that you have not relied on any representation, statement or promise made by us or on our behalf that is not expressly set out in the Agreement, except to the extent that the Australian Consumer Law provides otherwise.

54. Limitation of liability

54.1 Exclusion of Consequential Loss. To the maximum extent permitted by law, and subject to clause 52, neither party is liable to the other, whether in contract, tort (including negligence), under statute, in equity or otherwise, for any Consequential Loss arising out of or in connection with the Agreement. Consequential Loss means any loss of profit, revenue, turnover, business, opportunity, goodwill, reputation, anticipated savings or data, any loss arising from business interruption, any wasted expenditure (including Ad Spend and event costs), any loss arising from a missed deadline or event, and any indirect, special, incidental or consequential loss, whether or not foreseeable.

54.2 Cap. To the maximum extent permitted by law, and subject to clauses 52 and 54.4, our total aggregate liability to you arising out of or in connection with the Agreement, whether in contract, tort (including negligence), under statute, in equity or otherwise, is limited:

(a) in respect of a claim relating to an Order for Goods or project Services, to the Fees paid by you to us for the particular Goods or Services giving rise to the claim; and

(b) in respect of a claim relating to a Recurring Service or Pulse, to the Fees paid by you to us for that Recurring Service in the 3 months immediately before the event giving rise to the claim,

and, in aggregate for all claims, to the total Fees paid by you to us in the 12 months immediately before the first event giving rise to a claim.

54.3 Reduction. Our liability to you is reduced to the extent that any loss is caused or contributed to by you, your Authorised Users, the Customer Materials, a Third-Party Service, a Production Partner’s failure that we could not reasonably have prevented, or a Force Majeure Event.

54.4 Exceptions. Clauses 54.1 and 54.2 do not limit: our liability for personal injury or death caused by our negligence; our liability for fraud or wilful misconduct; your obligation to pay the Fees; or your liability under clauses 44, 45, 51 and 55.

54.5 Time for claims. To the extent permitted by law, and without limiting your Non-Excludable Rights, you must notify us in writing of any claim within 12 months after you became aware, or ought reasonably to have become aware, of the facts giving rise to it.

54.6 Benefit of limitation. Our Production Partners, contractors and personnel may rely on this clause 54 as if they were parties to the Agreement, and we hold the benefit of it on trust for them.

55. Indemnities

55.1 Your indemnity. To the maximum extent permitted by law, you indemnify us and our officers, trustees, employees, contractors and Production Partners (Indemnified Persons) against all losses, liabilities, damages, fines, penalties, costs (including legal costs on a full indemnity basis) and expenses suffered or incurred by any Indemnified Person arising out of or in connection with any claim, demand, proceeding, investigation or complaint by a third party or regulator arising from:

(a) the Customer Materials, any content, claim or offer you approve, or any instruction you give, including any allegation that it infringes Intellectual Property Rights or any other right of a person, or is defamatory, misleading, deceptive or unlawful;

(b) any breach of the laws, codes or guidelines referred to in clauses 32 and 45, including any complaint to or action by the Australian Health Practitioner Regulation Agency, the Therapeutic Goods Administration, an electoral commission, the Australian Competition and Consumer Commission, the Australian Communications and Media Authority, the Office of the Australian Information Commissioner or an equivalent body;

(c) any use of Client Data or contact lists in accordance with your instructions, including any claim that it was collected or used without consent;

(d) your access to, use of or authorisation of a Connected Account, or any breach of your warranty in clause 36.2;

(e) the installation, application, placement or use of Goods, including by an installer engaged by you; or

(f) your breach of the Agreement, or any wilful, unlawful or negligent act or omission by you or your Authorised Users.

55.2 Reduction. Your liability under clause 55.1 is reduced to the extent that the loss was caused by the negligence, wilful misconduct or breach of the Agreement of an Indemnified Person.

55.3 Conduct of claims. We will notify you promptly of any claim covered by clause 55.1, give you reasonable information about it, and not settle it without consulting you. You may, at your cost, participate in the defence of the claim.

55.4 Nature of the indemnity. It is not necessary for us to incur expense or make a payment before enforcing a right of indemnity. Each indemnity is a continuing obligation, separate and independent from your other obligations, and survives termination of the Agreement.

56. Force majeure

56.1 Relief. Neither party is liable for any failure or delay in performing an obligation under the Agreement (other than an obligation to pay money) to the extent the failure or delay is caused by an event or circumstance beyond its reasonable control (a Force Majeure Event), including fire, flood, storm, bushfire, earthquake, extreme weather, epidemic, pandemic, war, terrorism, civil unrest, government action or restriction, industrial action (other than of the affected party’s own staff), failure or delay of a Production Partner, supplier or carrier caused by any such event, shortage of materials, failure of utilities, internet, telecommunications or hosting services, cyber attack, and a Third-Party Service outage.

56.2 Obligations. The affected party must notify the other party as soon as practicable, use reasonable efforts to mitigate the effect of the Force Majeure Event, and resume performance as soon as practicable. Timeframes are extended by the period of the delay.

56.3 Termination. If a Force Majeure Event prevents performance of an Order or Service for more than 60 days, either party may terminate the affected Order or Service by written notice. You must pay for Goods and Services supplied, and work performed, before termination, and we will refund any amount paid for Goods or Services not supplied.

Part J: Ending, disputes and general

57. Termination and its effects

57.1 Termination by you for convenience. You may terminate a Recurring Service in accordance with clause 26 or the Plan Documents, and an Order in accordance with clause 9.

57.2 Termination for cause. Either party may terminate the Agreement, or any Order or Service under it, immediately by written notice if the other party: (a) commits a material breach of the Agreement that is capable of remedy and does not remedy it within 14 days after receiving written notice specifying the breach; (b) commits a material breach that is not capable of remedy; or (c) suffers an Insolvency Event, to the extent the law permits termination for that reason.

57.3 Termination by us for convenience. We may terminate a Recurring Service without cause on 30 days’ written notice. If we do so, we will refund any Fees paid in advance for the period after termination, and no early termination charge is payable by you.

57.4 Termination by us for non-payment or conduct. We may terminate the Agreement, or any Order or Service, by written notice if any amount is unpaid 14 days after we have given you written notice that it is overdue, or if you breach clause 7.2.

57.5 Effect of termination. On termination of the Agreement or of any Order or Service, for any reason:

(a) all amounts owing to us for Goods and Services supplied and work performed up to termination, and any amount payable under clause 9.5, 9.6 or 26.5, become immediately due and payable;

(b) the licences granted to you in respect of Pulse end, subject to clause 41.3;

(c) no rights in Deliverables pass to you unless and until they have been paid for in full;

(d) we will, subject to payment of all amounts owing, provide you with Final Deliverables completed and paid for, and transfer to you any account, access or credential we hold for you under clauses 28.1 and 33.2, within 14 days after your written request;

(e) each party must return or destroy the other’s Confidential Information on request, subject to clauses 41.4 and 49; and

(f) scheduled content that has not been published will not be published.

57.6 Accrued rights. Termination does not affect any rights or remedies that accrued before termination.

57.7 Survival. Clauses 2, 3, 10, 11 (in respect of amounts accrued), 12, 13, 14.1, 15.5, 21, 22, 23.3(c), 27.2, 28.1, 29.2, 36.2, 37, 41.3, 41.4, 44 to 55, 57, 58, 59, 60 and 62, and any other clause which by its nature is intended to survive, survive termination.

58. Dispute resolution

58.1 Notice of dispute. If a dispute arises out of or in connection with the Agreement (a Dispute), a party must not commence court or tribunal proceedings about the Dispute (other than for urgent interlocutory relief, or proceedings to recover a debt that is not genuinely disputed) unless it has first complied with this clause 58.

58.2 Negotiation. The party raising the Dispute must give the other party written notice describing the Dispute and the outcome it seeks. The parties must then meet (in person, by phone or by video) and negotiate in good faith to resolve the Dispute within 14 days after the notice is given.

58.3 Mediation. If the Dispute is not resolved within that period, either party may refer it to mediation. Where you are a small business, the Dispute may be referred to the Victorian Small Business Commission (or, if you are located outside Victoria, the equivalent body in your jurisdiction or the Australian Small Business and Family Enterprise Ombudsman). Otherwise, mediation is to be conducted by a mediator agreed by the parties or, failing agreement within 7 days, appointed by the Resolution Institute, in accordance with its mediation rules. Mediation will take place in Bendigo or by video conference, and each party bears its own costs and an equal share of the mediator’s fees, unless otherwise agreed.

58.4 Proceedings. If the Dispute is not resolved within 30 days after the referral to mediation, or the other party does not participate, either party may commence proceedings.

58.5 Consumers. If you are a Consumer, nothing in this clause prevents you from contacting Consumer Affairs Victoria or the equivalent agency in your State or Territory, or from making an application to the Victorian Civil and Administrative Tribunal or an equivalent tribunal.

58.6 Continued performance. Pending resolution of a Dispute, each party must continue to perform its obligations under the Agreement that are not the subject of the Dispute, and you must pay any amount not genuinely in dispute.

59. Governing law and jurisdiction

59.1 The Agreement is governed by the laws of Victoria, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Victoria and the courts entitled to hear appeals from them, and waives any objection to proceedings being heard in those courts on the ground that they are an inconvenient forum. Where proceedings are commenced in the Magistrates’ Court of Victoria, the parties agree that they may be commenced at the Bendigo venue.

60. International clients

60.1 Application. These Terms apply to customers located outside Australia, subject to this clause.

60.2 Currency and taxes. Fees are payable in Australian dollars unless the Quote or Plan Documents state another currency. You are responsible for all currency conversion costs, international transfer fees, import duties, customs charges, sales taxes, value added taxes and withholding taxes that apply in your jurisdiction. If you are required by law to withhold any tax from a payment, you must pay such additional amount as ensures that we receive the full amount we would have received had no withholding been required. GST is not charged on supplies that are GST-free exports under Australian law.

60.3 Your local laws. You are responsible for ensuring that the Goods, Deliverables, advertising, websites and communications we produce or send for you comply with the laws of every jurisdiction in which you operate or in which they are used, published or received, including consumer protection, advertising, privacy, data protection, marketing communications, telemarketing, text messaging, call recording, accessibility and professional regulation laws. We are entitled to rely on your instructions in relation to those laws, and we do not advise on foreign law.

60.4 Business hours and time zones. Our business hours, Business Days and response times are measured in Bendigo, Victoria time.

60.5 Shipping outside Australia. Where Goods are shipped outside Australia, you are the importer of record, and risk passes on dispatch from Australia unless otherwise agreed.

60.6 Governing law. Clause 59 applies to international clients. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.

61. Notices

61.1 Form. A notice under the Agreement must be in writing and may be given by email, by message in Pulse, by hand or by prepaid post, to the address of the party most recently notified. Our address for notices is info@bendigographics.com and Shop 2, 176 Lyttleton Terrace, Bendigo, Victoria 3550. Your address for notices is the email address associated with your Account or the billing contact on your Account, or the email address you used when accepting the Agreement.

61.2 When received. A notice is taken to be received: if sent by email or through Pulse, at the time it is sent, unless the sender receives an automated message that it was not delivered; if delivered by hand, on delivery; and if sent by post within Australia, 3 Business Days after posting. A notice received after 5.00 pm, or on a day that is not a Business Day, is taken to be received at 9.00 am on the next Business Day.

61.3 Legal proceedings. This clause does not apply to the service of process in legal proceedings.

62. General

62.1 Assignment. You must not assign, novate or otherwise transfer any right or obligation under the Agreement without our prior written consent, which will not be unreasonably withheld. We may assign or novate the Agreement, in whole or in part, to a related entity, to a successor trustee of the Studio Ecks Family Trust, or to a purchaser of all or a substantial part of our business, on written notice to you, provided the assignee agrees to be bound by the Agreement and your rights are not materially diminished.

62.2 Subcontracting. Clause 17.2 applies.

62.3 Entire agreement. The Agreement is the entire agreement between the parties about its subject matter, and supersedes all prior negotiations, representations, understandings and agreements, except to the extent that the Australian Consumer Law provides otherwise.

62.4 Severability. If any provision of the Agreement is void, voidable, illegal, unenforceable or unfair, it is to be read down to the extent necessary to avoid that result, and if it cannot be read down, that provision (or the relevant part of it) is severed, without affecting the validity or enforceability of the remainder.

62.5 Waiver. A failure or delay in exercising a right, power or remedy does not operate as a waiver of it. A waiver is effective only if it is in writing and signed or sent by the party giving it, and only in the specific instance for which it is given.

62.6 Variation. Except as provided in clauses 5 and 9, the Agreement may be varied only in writing agreed by both parties, which may be given by email or through Pulse.

62.7 Relationship. The parties are independent contractors. Nothing in the Agreement creates a relationship of employment, partnership, joint venture, agency or fiduciary duty between the parties, except as expressly provided in clause 13. Neither party may bind the other.

62.8 Trustee capacity. We enter into the Agreement as trustee of the Studio Ecks Family Trust. To the extent permitted by law, our liability under the Agreement is limited to the extent we are entitled to be, and are actually, indemnified out of the assets of that trust, except to the extent of any fraud, breach of trust or gross negligence on our part.

62.9 Trustee customers. If you enter into the Agreement as trustee of a trust, you enter into it both in your personal capacity and as trustee, you warrant that you have power under the trust deed to do so and a right of indemnity from the trust assets, and you must not do anything to impair that right of indemnity.

62.10 Further assurance. Each party must do everything reasonably necessary, including signing documents, to give full effect to the Agreement.

62.11 Costs. Each party bears its own costs of negotiating and entering into the Agreement.

62.12 Cumulative rights. Our rights and remedies under the Agreement are cumulative and in addition to our rights and remedies at law.

62.13 Third parties. Except as provided in clause 54.6 and 55, no person other than the parties has any right to enforce the Agreement.

63. Contact us

63.1 Questions about these Terms can be sent to:

Bendigo Graphics

Shop 2, 176 Lyttleton Terrace, Bendigo, Victoria 3550

info@bendigographics.com

(03) 5441 7900

Business hours: Monday to Friday, 10.00 am to 4.00 pm, excluding public holidays.