Bergan Blue Pty Ltd ACN 137 282 690 (hereinafter referred to as "Bergan Blue" or "we"), provides this Terms and Conditions of Service agreement to the Client (hereinafter referred to as "you" or "the client") as a client of Bergan Blue. By using Bergan Blue, you are indicating your agreement to be bound by all of the terms in this agreement.
Last revised: 24th of November, 2009
When becoming a client of Bergan Blue, the client agrees to adhere to these terms and conditions and that they prevail over any other verbal, implied or written conditions, whether verbal, implied or written to the extent of the permitted law.
All communications including quotes and invoices are private and confidential and must not be shared with any parties not directly or indirectly involved in the project. Should Bergan Blue discover information has been shared with third parties to their direct benefit, Bergan Blue will terminate all active work and communication with the client, and no refunds will be given. Where proprietary information has been released, Bergan Blue may seek legal action.
All amounts quoted are excluding GST unless otherwise specified. Quotes are valid for 30 days or to the 'Valid To' date in the quote. After this time, a new quote must be sought by the client.
All clients must read and agree to Bergan Blue's terms and conditions.
It is the client's responsibility to ensure that Bergan Blue receives all materials requested, including feedback, to continue work. Where this does not happen, work is unable to progress.
It is the client's responsibility to ensure that the creative is free of error during the final stages of production, before project completion. Any corrections to the creative, such as text changes on the website after launch, will incur additional fees. Bergan Blue will not be held responsible for errors including but not limited to spelling errors and colouring issues including in print.
All content must be provided by the client and all copy must be provided electronically. In the occurrence that copy is provided another format, clients will be charged our standard website maintenance hourly rate to convert this content into electronic format.
All content must be provided by the due date or the end of the Creative Definition stage as set out in the Booking Form. Where content is not provided on time, the project will be placed on hold and scheduled in at a later date.
Unless otherwise specified, designs include up to 3 initial concepts with 3 rounds of revisions. Development includes up to 3 rounds of revisions. Second and third concepts will only be provided if the first is rejected. Further concepts and revisions outside of these inclusions will be charged at an hourly rate.
Source files are not included in any quotation and will be provided only at Bergan Blue's discretion. In this instance, a surcharge of 30% of the total project costs applies and must be paid for in advance.
Bergan Blue will advise any additional time or cost requirements where variations have been requested by the client. No extra work will be carried out until a signed Variations Form is received.
If the client requests any changes to the creative after approval has been made by the client, Bergan Blue reserves the right to charge the client at the standard hourly rates and a Variations Form will be issued.
Bergan Blue's standard payment terms are 7 days. Bergan Blue reserves the right to change payment terms on a client by client basis based on payment history without notice.
Work will not be carried out for clients with overdue accounts.
Project payments will be required as outlined in the Quotation and/or Booking Form and as agreed to by the client. Payment terms will not be altered once a project has been initiated.
Files will not be sent and websites will not be launched until the client's account has been paid in full.
All deposits, progress payments and final payments are non-refundable, regardless of work completed, to cover the time allocated to the project.
All third-party items such as printing, SSL Certificates, domain names or hosting are pre-paid and will not be purchased until payment for the appropriate invoice has been received. Failure to make payment for third-party services by the expiry date will result in automatic downtime of the client's services for which Bergan Blue will not be held responsible.
The total costs payable will be for the agreed work in our Quotation and/or Variations Form.
It is at Bergan Blue's discretion to allow a client to enter into a payment plan and the site/application must be hosted with Bergan Blue until full payment has been made. FTP details will not be given to the client until payment has been received in full.
Payment plans incur a set-up fee of $120.00 + GST. The Booking Fee cannot be included in the payment plan.
Payments must be made via Direct Debit. A Direct Debit request form must be returned to Bergan Blue with the Booking Form.
Monthly repayments cannot be less than $250.00.
Invoices for payment plans will be issued mid-month.
Where payments are missed on one or more occasion, the payment plan will be deemed to be cancelled and Bergan Blue reserves the right to demand 100% of remaining costs in a lump sum.
Payment plan arrangements can be paid in full at any time without incurring any additional fees and there is no interest payable.
Timeframes outlined in quotes and Booking Forms are dependant on prompt feedback, payment and provision of information from the client and are not binding and cannot be guaranteed. Where feedback, payment or content is not received in a timely manner the project may be put on hold. Bergan Blue will not be held responsible for projects not completed on time due to delays. Schedules may be revised at the start of each stage.
Bergan Blue software (i.e. blueCart eCommerce) remains the property of Bergan Blue. The client does not and will not ever retain any ownership of code, concept or operation of Bergan Blue software.
Once payment of the account has been finalised the client will own copyright of all images and designs developed by Bergan Blue for the client, excluding any existing licenses or copyright (e.g. fonts, stock imagery, blueCart eCommerce).
Should a project be only partly completed or cancelled, whether at the fault of the client or Bergan Blue, any designs, concepts or code already created will remain the property of Bergan Blue. The client will not have ownership of this material or the rights to use and doing so may result in legal action.
All concepts not chosen by the client remain the property of Bergan Blue and may be used in part or in their entirety by other Bergan Blue clients.
The blueCart eCommerce software package is proprietary software. Bergan Blue retains all copyright ownership on all source code, images and other content found under the blueCart installation.
The client, at no time, will have access to this source code. All blueCart eCommerce installations must be hosted with Bergan Blue. blueCart will not be permitted to be hosted with a third-party web host.
These terms have been put in place to retain the security and integrity of our product. They will not in any way hinder the client from maintaining the website.
Once the Booking Fee has been paid to Bergan Blue, a binding contract is established. Cancellation of this contract must be requested in writing. Any work completed during this time will remain the property of Bergan Blue. No refunds will be given.
Clients who do not contact Bergan Blue for more than 30 days during an active project will be deemed to have 'cancelled' their project. Projects on hold for more than 90 days will be deemed cancelled.
Re-commencement of cancelled projects will attract a fee of $120 + GST.
Up to 2 hours of meeting time is included in all active projects. All other meetings are charged at $100 + GST per hour or part thereof. New clients may redeem the cost of their first meeting from their first project.
Clients outside the 30km radius of Terrigal are asked to arrange a telephone appointment with their Bergan Blue designer.
The client agrees that the subject matter or content is not copyrighted by a third party and indemnifies Bergan Blue for all liability, damages and legal fees relating to copyright infringement. Bergan Blue will not accept responsibility for any copyright issues arising from improper use of copyrighted images or content provided by the client. Should a copyright issue arise from content we have been provided with, we reserve the right to discontinue work with the content.
It is the clients responsibility to choose a suitable web hosting plan and Bergan Blue will not be held responsible for extra hosting costs incurred due to additional traffic or space required, any delays or downtime caused by a third-party web hosting company, or any loss of business due to downtime.
Bergan Blue reserves the right to change hosting packages at any time and will provide 7 days written notice to hosting clients. Clients are permitted to change their plan at any time.
Excess usage is charged per gigabyte or part thereof for traffic and/or per 50 megabytes or part thereof for disk space, and payable upon yearly expiry for yearly clients or upon the next monthly payment for monthly clients.
Monthly hosting can be paid by Direct Debit only, in advance. Any excess usage charges will be added to the amount being Direct Debited.
Hosting support for general account maintenance such as password updates is available from 9am to 5pm Mon - Thur and 9am to 4pm Fri.
Support is available for urgent hosting issues such as email accounts not working or websites going offline between the hours of 7am and 11pm via email only.
Please refer to ‘Urgent Issues & Support’ for information on how to contact us during these times
16. Urgent Issues & Support
Bergan Blue's definition of an urgent issue relates to either a) downtime of a website; b) downtime of email services; or c) a live application or e-commerce website failing to function in a manner that allows customers or the owner to use it for its required purpose.
Issues outside of the abovementioned will not be treated as urgent by Bergan Blue and the requested work will be put in a maintenance queue.
Clients agree that urgent issues must be emailed to urgent@berganblue.com.au with the issue outlined in full detail for the fastest response.
The client understands that staff emails, phone messages and social networking profiles are not checked regularly and contacting Bergan Blue about an urgent issue via a method other than emailing urgent@berganblue.com.au may result in significant delays in rectifying the issue. In this case, Bergan Blue will not be held responsible for any delays.
Bergan Blue requests that a discrete link back to www.berganblue.com.au from the client's website be included on the footer of each page. This will be placed by default on the client's website. The client has the right to request the removal of this link.
Bergan Blue reserves the right to use any designs, concepts or code developed for the client by Bergan Blue for marketing purposes including but not limited to displaying a client's design or text on its website as part of its portfolio of work and to provide a client's design to third parties as part of a collection of samples.
When you become a client of Bergan Blue, you will automatically be subscribed to the Bergan Blue eNewsletter and the clients only database. You have the option to unsubscribe at any time via a link in these emails.
Bergan Blue guarantees its websites for 14 days after launch, and web applications for 30 days after launch. This guarantee does not include changes to design, functionality or spelling errors. This guarantee does include any errors in functionality, broken links and missing images.
After 14 days for web design projects or 30 days for web application projects, changes to any work will be completed as a separate project, and a new quote will be provided.
Bergan Blue makes every endeavor to provide the best possible service to its clients. Where loss is incurred by the client as a result of error or omission by Bergan Blue, the client may not claim damages that exceed the prior amounts paid by them to Bergan Blue.
