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. You will maintain any information received in confidence and use it only for the purposes for which it has been disclosed to you and for no other purpose, in particular to the benefit of any third party. 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.
Bergan Blue quotes will be sent out in PDF format when requested. These quotes are private and confidential and must be treated in such a way. Quotes are valid for 30 days or to the 'Valid To' date in the quote. After this time, prices and timeframes previously quoted are not guaranteed and a new quote must be requested.
All amounts quoted by Bergan Blue, whether written or verbal, are excluding GST unless otherwise specifically stated.
If the client agrees to the quote as outlined, a Booking Form will be forwarded to the client. The Booking Form must be returned to Bergan Blue within 7 days of its issue or by the due date specified on the Booking Form. The project plan outlined in the Booking Form cannot be guaranteed after this time and will need to be reviewed. Should the Booking Form not be received prior to the initiation date outlined in the project plan, timeframes cannot be guaranteed and Bergan Blue will need to reissue a Booking Form with a revised project plan.
Once the signed Booking Form is received, Bergan Blue will issue the client with an invoice for the Booking Fee, equal to a certain percentage of the total project costs. All Booking Fees must be received within 3 working days or prior to the project start date, whichever is sooner.
Projects will be booked in and dates secured only when a signed Booking Form and Booking Fee has been received.
Projects will not begin until we receive a signed Booking Form and a Booking Fee, and Design Stages will not begin until all information required as set out in the Booking Form is received. If information required is not received by the due date, the project will be put on hold until the information is received, at which time the project will be rescheduled for a future date. If the project is put on hold at the client's request, it is the client's responsibility to re-initiate the project.
Bergan Blue will endeavour to make each and every client's project an enjoyable process that runs smoothly and to schedule. The client also has several responsibilities to ensure this happens.
All clients must read and agree to the Terms & Conditions found on the Bergan Blue Website when becoming a client of Bergan Blue.
Before signing a Booking Form, the client must thoroughly check the proposed project schedule to ensure they can meet these timeframes. Clients unable to meet the timeframes outlined due to prior commitments should inform Bergan Blue and arrange a change of dates.
The client will be required to communicate through Bergan Blue's Client Portal in order to streamline communication and proofing. The client will be provided with login details for the Portal and will find instructions on how to use the Portal on the main page once logged in. Any client having difficulty using the Portal is encouraged to call Bergan Blue for assistance.
In order for the project to run smoothly, the client must provide Bergan Blue with clear and well thought out direction on what they want their creative to look like and what purpose they would like it to serve. All clients must provide a thorough Creative Brief (form supplied by Bergan Blue) during the Creative Definition Stage of their project to assist with this. Bergan Blue is always on hand to assist clients in the Creative Definition Stage and clients are encouraged to discuss their ideas with Bergan Blue staff.
Timeframes outlined in quotes and Booking Forms are dependant on prompt feedback from the client. Bergan Blue requests that feedback on proofs or creatives be provided within 48 hours or less in order to stick to the schedule. Bergan Blue will not accept responsibility for project delays where prompt feedback has not been provided.
With all types of design, particularly print design, Bergan Blue will not be held responsible for any errors found on the created works after printing or publishing. 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 maintenance fees.
Where print work is being completed, the client must ensure that they seek complete and accurate printing specifications from their printer unless printing is being organised by Bergan Blue. Where these are incorrect, Bergan Blue will not be responsible for any errors in printing. Bergan Blue cannot be held responsible if the colouring on a printed design does not match the client's requirements. Bergan Blue will provide as many examples of the creative before the item is printed, however it cannot be held responsible if the end product is slightly off colour or does not entirely meet the client's expectations. Clients are encouraged to print out proofs on their office printer to check colouring if they are unable to get a proof from their printer.
All content, including but not limited to copy, images, logos, product information, pricing and samples, must be provided by the client.
All copy must be provided electronically. No handwritten or printed copywriting will be accepted as part of the agreed project or its costs. In the occurrence that handwritten copy is provided, 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, creatives such as websites, logos, business cards, stationery, flyers and signage include up to 3 initial concepts with 3 rounds of revisions. Second and third concepts will only be provided if the first is rejected. Further initial concepts and revisions outside of these inclusions will be charged at an hourly rate.
No source files will ever be provided to the client, unless agreed to in writing by Bergan Blue. In this instance, a surcharge of 20% of the total project costs applies and must be agreed to by the client in the form of a Variations Form.
Logos will be sent to the client in JPEGs, TIFF, and EPS formats.
All print items, including but not limited to flyers, business cards, letterhead and signage, will be provided in PDF format only, and will be supplied at a minimum of 300dpi.
Clients are advised to refer to their original quotation to check the incusions of their specific project.
Alterations or additions to the scope of the project must be requested in writing (email, fax or mail). The client will then receive an email from Bergan Blue outlining any additional time or cost requirements to include these alterations. Should the client agree to these new conditions, they should sign the Variations Form issued to them and return it as soon as possible to Bergan Blue. The total cost of the project will then be based on any amounts agreed to in the Variations Form. No extra work will be carried out until a signed Variations Form is received.
Bergan Blue reserves the right to change payment terms on a per client basis, based on the payment history of the client. Clients are advised to request a quote and payment terms prior to entering into any new work.
In most instances, non-project work, such as web maintenance or ad-hoc graphic design work, will be charged at hourly rates and will not require a deposit unless otherwise requested by Bergan Blue.
All project payments, including Booking Fees, Progress Payments and Final Payments, will be based on 3 day accounts in order to stick to schedule. Failure to pay within these time frames will result in delays for which Bergan Blue will not be held responsible, and may result in a cancellation of your contract.
Before commencement of work, Bergan Blue requires a Booking Fee equal to a percentage of the agreed total costs to be paid. Projects will not be booked in and will not commence until this Booking Fee has been received. The percentage required will be outlined in the Booking Form.
For projects over $500.00 AUD, a further progress payment equal to a percentage of the total costs is payable once the Design Stage has been completed and prior to the Production Stage beginning. Final payment will be invoiced upon completion of the Production or Testing Stages and must be paid prior to launch or receipt of files and/or printed materials.
Subsequent payments will be required as outlined in the Quotation and/or Booking Form and as agreed to by the client, whether as part of a payment plan, or a predetermined cost structure. Payment terms will not be altered once a project has been initiated.
All deposits, progress payments and final payments are non-refundable, regardless of work completed.
For clients that require the purchase of hardware, software, printing, SSL Certificates, domain names or hosting, these items/services must be paid for in full in order for Bergan Blue to process the appropriate purchase order for the client, unless these items form part of an overall project in which case Bergan Blue will purchase the items at its own discretion.
The total costs payable will be for the agreed work in our Quotation and/or Variations Form. The client will be asked to approve content and design at agreed stages. If, after such approval, the client requests any changes to the creative that affects the creative in any way, Bergan Blue reserves the right to charge the client at their standard hourly rates and a Variations Form will be issued.
Bergan Blue reserves the right to suspend services including but not limited to live websites, email, web statistics and administration panel access where accounts remain unpaid after 30 days. Suspension of service does not negate the requirement to make payment in full and suspension will remain in place until the account has been finalised.
Failure to make payment for services such as domain name renewal and/or website hosting renewal by the due date will result in automatic downtime of the client's services.
It is at Bergan Blue's discretion to allow a client to enter into a payment plan.
Payment plans are only valid for web-based projects and hosting must be setup and remain with Bergan Blue until such time as the total amount has been paid in full.
Payment plans incur a set-up fee of $120.00. This is payable at commencement of the project, in addition to the Booking Fee.
The Booking Fee cannot be included in the payment plan, however the entire remaining costs involved with the project can be included. The first payment on the payment plan will be required on the 28th day of the month following the project booking.
Payments must be made via Direct Debit, which will be organised by Bergan Blue. A Direct Debit request form must be returned to Bergan Blue with the Booking Form and work will not commence until this has been received.
Clients can choose a three, six or twelve month period for their payment plan depending on the total amount owing. Monthly repayments are determined by dividing the remaining amount by the length of the contract (months).
Monthly repayments cannot be less than $400.00. Where monthly repayments calculate to less than this amount, a payment plan will not be agreed to by Bergan Blue.
Invoices for payment plans will be issued on the 16th of each month.
Any new projects or additional work cannot be added to an existing payment plan. A separate project and plan will be drawn up for such work.
Clients who have had a bad credit rating with Bergan Blue in the past are not able to request a payment plan.
Where payments are missed on 1 or more occasions, the payment plan will be deemed as 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.
Bergan Blue makes every endeavour to complete projects within the timeframe outlined in the Project Plan in the Quotation. These timeframes and subsequent timeframes given by Bergan Blue are not binding and cannot be guaranteed. Where alterations and additions have been made to the original scope or there are delays in approval from the client, timeframes will be changed from the original Project Plan as necessary.
It is critical that all feedback is provided in a timely manner to ensure projects are completed by their specified due date. If feedback or information required is not received in a timely manner, the project may be put on hold until the feedback or information is received, at which time the project will be rescheduled for a future date.
Bergan Blue will not be held responsible for projects not completed on time due to delays on the client's part, or any other reason.
Bergan Blue software (i.e. blueCart eCommerce) remains the property of Bergan Blue. The client does not retain any ownership of code, concept or operation of Bergan Blue software.
Once payment of the account has been finalised – including all payments associated with payment plans – the client will own copyright of all images and designs developed by Bergan Blue for the client. This excludes 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 it unless full payment is received.
All blueCart eCommerce installations must be hosted and remain hosted with Bergan Blue.
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.
In the event that a client wishes to move their site to a different web host, the creative content for the site will be provided, however all source code for the online store will be withheld.
These terms have been put in place to retain the security and integrity of our product. They will not in any way hinder you from maintaining your site or having a third party designer make changes to your site.
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, and no Booking Fees or Progress Payments will be refunded.
Clients who do not contact Bergan Blue for more than 30 days will be deemed to have 'cancelled' their account. Where the reason for non-communication is deemed by Bergan Blue to be 'legitimate', the cancellation may be reversed at Bergan Blue's discretion and work on the project will continue at a later date, as schedule by Bergan Blue.
Project re-commencement will attract a fee of $120 + GST. The reason for this fee is to cover the time spent by Bergan Blue rescheduling this project and refamiliarising itself with the client's/project's requirements for completion.
We love meeting our clients face-to-face and we have a firm belief that meeting people in person can only strengthen our relationship and ultimately create a better product/creative for you. As such, up to 2 hours of meeting time is included in all projects. This does not include phone time or travel time.
Initial meetings prior to the commencement of a project are not part of these 2 hours. After the included 2 hours have been used, meetings will incur a standard rate of $120.00 AUD per additional hour plus travel if outside a 30km radius of Terrigal, NSW.
It is at Bergan Blue's discretion how far its staff will travel to meet clients. In most instances, clients outside the 30km radius of Terrigal are encouraged to arrange a telephone appointment with their Bergan Blue designer.
You warrant that the subject matter or content is not copyrighted by a third party. You also recognise that because subject matter does not have to bear a copyright notice in order to be protected by copyright law, absence of such notice does not necessarily assure a right to reproduce. You agree to indemnify Bergan Blue for all liability, damages, and legal fees that may be incurred in any legal action connected with copyright infringement involving the work produced or provided. Bergan Blue will not accept responsibility for any copyright issues arising from improper use of copyrighted images or content provided by the client.
Bergan Blue will recommend a web hosting package supplied by Bergan Blue based on the client's requirements but will not be held responsible for:
Bergan Blue's servers are located in secure Australian-based datacentres and hold a guaranteed 99.9% uptime. In the event that the servers experience downtime, Bergan Blue will endeavour to notify the client and provide an estimated timeframe for service restoration.
Bergan Blue reserves the right to change hosting packages at any time and will provide 7 days written notice to hosting clients.
In the event that a client's hosting account exceeds its traffic and/or space limit, they will be charged accordingly, on the 1st of the month for the preceding month. Excess usage will be charged per gigabyte or part thereof for traffic and/or per 50 megabytes or part thereof for disk space. The client can, at any time, upgrade to a higher hosting plan to avoid excess usage charges.
Clients on monthly hosting plans will be required to pay their monthly account via Direct Debit, provided by Ezidebit Pty Ltd, 1 month in advance. Should these clients incur excess usage charges, they will be added to the amount being Direct Debited.
Should a monthly or yearly hosting payment not be received by the due date, Bergan Blue's hosting system will automatically switch off the hosting which will result in downtime of website and email services. Once payment has been received, these services will be manually restored.
Bergan Blue offers clients the opportunity to purchase maintenance hours in bulk in the form of a maintenance contract. To initiate a mainenance contract, the client must sign both the Confirmation of Contract Initiation form and the Annual Web Maintenance Contract. No work will be completed under the contract until both of these documents have been received by Bergan Blue, signed and in full.
Clients acknowledge that entry-level maintenance contracts do not attract a discount and that unused hours do expire.
Website maintenance contracts cannot be used for application development or programming, which is charged at a different rate. Clients wishing to have applications or web-based software maintained will need to enter into an Application Maintenance contract.
Each maintenance contract has a guaranteed work commencement time*, as laid out in the table below:
| Contract name | Guaranteed commencement of work in |
| Website Maintenance - Small Business | 3 business days (72 business hours) |
| Website Maintenance - Professional | 2 business days (48 business hours) |
| Website Maintenance - Premiere | 1 business day (24 business hours) |
| Application Maintenance - Small Business | 3 business days (72 business hours) |
| Application Maintenance - Small Business | 2 business days (48 business hours) |
| Application Maintenance - Small Business | 1 business day (24 business hours) |
* Guranteed response times relate to general maintenance only. Critical issues that result in the website or application not functioning will be prioritised at Bergan Blue's discretion.
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 during the Design Stage. The client has the right to request the removal of this link.
Bergan Blue reserves the right to display 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.
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.
When you become a client of Bergan Blue, you will automatically be subscribed to the Bergan Blue eNewsletter. You have the option to unsubscribe at any time via a link in the eNewsletter.
When contacting or corresponding with Bergan Blue, you agree that all information is true and accurate.
You agree to use Bergan Blue for lawful purposes only. You may not use, or allow others to use, Bergan Blue either directly or indirectly, to:
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.
