1.1 – Pearywinkle shall mean Pearywinkle Creative , its successors and assigns or any person acting on behalf of and with the authority of Pearywinkle Creative .
1.2 – “Client” shall mean the Client (or any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as provided by the Pearywinkle Creative to the Client.
1.3 – “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Client on a principal debtor basis.
1.4 – “Goods” shall mean Goods supplied by the Pearywinkle Creative to the Client (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Pearywinkle Creative to the Client.
1.5 – “Services” shall mean all Services supplied by Pearywinkle Creative to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 – “Price” shall mean the price payable for the Goods as agreed between Pearywinkle Creative and the Client in accordance with clause 3 of this contract.
2.1- Any instructions received by Pearywinkle Creative from the Client for the supply of Goods and/or the Client’s acceptance of Goods supplied by Pearywinkle Creative shall constitute acceptance of the terms and conditions contained herein.
2.2 – Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 – Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of Pearywinkle Creative .
2.4 – The Client shall give Pearywinkle Creative not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice).
3.1 – At Pearywinkle Creative sole discretion the Price shall be either:
(a) as indicated on invoices provided by Pearywinkle Creative to the Client in respect of Goods supplied; or
(b) Pearywinkle Creative quoted Price (subject to clause 3.2) which shall be binding for thirty (30) days.
3.2 – Pearywinkle Creative reserves the right to change the Price in the event of a variation to Pearywinkle Creative quotation.
3.3 – At Pearywinkle Creative sole discretion a 50% non refundable deposit may be required.
3.4 – At Pearywinkle Creative sole discretion:
(a) payment shall be due prior to delivery of the services or goods; or
(b) payment for approved Clients shall be made by instalments in accordance with Pearywinkle Creative 's payment schedule.
3.5 – Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
3.6 – Payment will be made by cash, credit card, paypal, by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and Pearywinkle Creative .
3.7- GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4.1 – At Pearywinkle Creative sole discretion delivery of the Goods shall take place when:
(a) the Client takes possession of the Goods at Pearywinkle Creative address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by Pearywinkle Creative nominated carrier).
(c) the Client provides full and complete payment.
4.2- At Pearywinkle Creative sole discretion the costs of delivery are:
(a) in addition to the Price; or
(b) for the Client’s account.
4.3 – The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged then Pearywinkle Creative shall be entitled to charge a reasonable fee for redelivery.
4.4 – Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
4.5 – The failure of Pearywinkle Creative to deliver shall not entitle either party to treat this contract as repudiated.
4.6 – Pearywinkle Creative shall not be liable for any loss or damage whatever due to failure by Pearywinkle Creative to deliver the Goods (or any of them) promptly or at all.
5.1 – The Client is solely responsible for the content of the web page. Pearywinkle Creative is not responsible for proofreading any content unless specifically agreed in writing. Any spelling errors will be the sole responsibility of the client.
5.2 – Pearywinkle Creative makes no representations to the Client on the functionality or content of the Web site.
5.3 – The Client is solely responsible for dealings with persons accessing the data or webpage and the Client warrants that they will not refer complaints or inquiries to such data to Pearywinkle Creative .
6.1- If the Client selects to organise their own web hosting arrangements, final exported sites will be uploaded to your preferred host company or supplied on disc as per the quoted price. Construction files of the site can supplied on request and at Pearywinkle Creative sole discretion may incur a fee.
6.2- Pearywinkle Creative accepts no responsibility for down times, delays, breakdowns or data loss caused by Internet Service Providers.
7.1- If Pearywinkle Creative retains ownership of the Goods nonetheless, all risk for the Goods passes to the Client on delivery.
8.1 – Pearywinkle Creative and Client agree that ownership and intellectual property of the Goods shall not pass until:
(a) the Client has paid Pearywinkle Creative all amounts owing for the particular Goods; and
(b) the Client has met all other obligations due by the Client to Pearywinkle Creative in respect of all contracts between Pearywinkle Creative and the Client.
8.2 – Receipt by Pearywinkle Creative of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then Pearywinkle Creative ownership or rights in respect of the Goods shall continue.
8.3 – It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Pearywinkle Creative shall have received payment and all other obligations of the Client are met; and
(b) until such time as ownership of the Goods shall pass from Pearywinkle Creative to the Client Pearywinkle Creative may give notice in writing to the Client to return the Goods or any of them to Pearywinkle Creative . Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease; and
(c) Pearywinkle Creative shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Client fails to return the Goods to Pearywinkle Creative then Pearywinkle Creative or Pearywinkle Creative agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods; and
(e) the Client is only a bailee of the Goods and until such time as Pearywinkle Creative has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for Pearywinkle Creative ; and
(f) the Client shall not deal with the money of Pearywinkle Creative in any way which may be adverse to Pearywinkle Creative ; and
(g) the Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Pearywinkle Creative ; and
(h) Pearywinkle Creative can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client; and
(i) until such time that ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that Pearywinkle Creative will be the owner of the end products.
9.1- The Client hereby disclaims any right to rescind, or cancel any contract with Pearywinkle Creative or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by Pearywinkle Creative and the Client acknowledges that the Goods are bought relying solely upon the Client’s skill and judgement.
10.1- The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Pearywinkle Creative of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford Pearywinkle Creative an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Pearywinkle Creative has agreed in writing that the Client is entitled to reject, Pearywinkle Creative liability is limited to either (at Pearywinkle Creative discretion) replacing the Goods or repairing the Goods. Where the Client is a consumer as defined in the Trade Practices Act 1974 or the Fair Trading Acts, then the Client shall be entitled to either a refund, repair or replacement of the Goods.
10.2- Goods will not be accepted for return other than in accordance with 10.1 above.
11.1- Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
12.1- Subject to the conditions of warranty set out in clause
12.2 Pearywinkle Creative warrants that if any defect in any workmanship of the web site or application provided by Pearywinkle Creative becomes apparent and is reported to Pearywinkle Creative within one (1) months of the date of delivery (time being of the essence) then Pearywinkle Creative will either (at Pearywinkle Creative sole discretion) replace or remedy the workmanship.
12.2- The conditions applicable to the warranty given by clause are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
(i) failure on the part of the Client to properly maintain any Goods; or
(i) failure on the part of the Client to properly maintain (ii) failure on the part of the Client to follow any instructions or guidelines provided by Pearywinkle Creative ; or
(iii) any use of any Goods otherwise than for any application specified on a quote or order form; or
(iv) the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) fair wear and tear, any accident or act of God.
(b) the warranty shall cease and Pearywinkle Creative shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without Pearywinkle Creative consent.
(c) in respect of all claims Pearywinkle Creative shall not be liable to compensate the Client for any delay in either replacing or remedying the workmanship or in properly assessing the Client’s claim.
13.1 – Where photos are purchased by Pearywinkle Creative from a third party for the use for either print or web it is the responsibility of the client to alert Pearywinkle Creative when the license falls due/expires and they are responsible for renewing this license and all fees associated with this renewal whether past or future. Pearywinkle Creative takes no responsibility for renewal of these images once they have expired.
13.2 – The Client warrants that all designs or instructions to Pearywinkle Creative will not cause Pearywinkle Creative to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify Pearywinkle Creative against any action taken by a third party against Pearywinkle Creative in respect of any such infringement.
14.1- If the Client defaults in payment of any invoice when due, the Client shall indemnify Pearywinkle Creative from and against all costs and disbursements incurred by Pearywinkle Creative in pursuing the debt including legal costs on a solicitor and own client basis and Pearywinkle Creative collection agency costs.
14.2 – Without prejudice to any other remedies Pearywinkle Creative may have, if at any time the Client is in breach of any obligation (including those relating to payment), Pearywinkle Creative may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. Pearywinkle Creative will not be liable to the Client for any loss or damage the Client suffers because Pearywinkle Creative has exercised its rights under this clause.
14.3 – Without prejudice to Pearywinkle Creative other remedies at law Pearywinkle Creative shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Pearywinkle Creative shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Pearywinkle Creative becomes overdue, or in Pearywinkle Creative opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
14.4 – Pearywinkle Creative Designs retains the right to add a link on any website it designs and builds with its wording at Pearywinkle Creative discretion with the link back to the Pearywinkle Creative home page.
15.1 – Pearywinkle Creative reserves the right to suspend services in any case where the Client fails to perform their obligations under this and any associated agreements, including but not limited to the suspension of the Client’s websites.
16.1 – Pearywinkle Creative may discontinue services if an amount payable to Pearywinkle Creative is overdue or take down a website permanently in any case where an amount payable is overdue by more than 30 days. In any such event, you remain liable for the total cost of the contract including all disbursements; unless otherwise agreed between the parties. Furthermore, Pearywinkle Creative will not refund ( in part or in whole) any deposits received for the commencement of work, under any circumstances unless agreed firstly in writing by Pearywinkle Creative . Pearywinkle Creative reserves the right to keep all funds from the deposit if work on a job has commenced and is terminated by either party. Pearywinkle Creative shall not be liable for any loss or damage whatever arising from such cancellation.
16.2 – In the event that the Client cancels delivery of Goods the Client shall be liable for any loss incurred by Pearywinkle Creative (including, but not limited to, any loss of profits) up to the time of cancellation.
17.1 – The Client and/or the Guarantor/s agree for Pearywinkle Creative to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by Pearywinkle Creative .
17.2 – The Client and/or the Guarantor/s agree that Pearywinkle Creative may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the credit worthiness of Client and/or Guarantor/s.
17.3 – The Client consents to Pearywinkle Creative being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.4 – The Client agrees that personal credit information provided may be used and retained by Pearywinkle Creative for the following purposes and for other purposes as shall be agreed between the Client and Pearywinkle Creative or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by Pearywinkle Creative , its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
17.5 – Pearywinkle Creative may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
18.1 – If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2 – These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.
18.3 – Pearywinkle Creative shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by Pearywinkle Creative of these terms and conditions.
18.4 – The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by Pearywinkle Creative .
18.5 – Pearywinkle Creative may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
18.6 – Pearywinkle Creative reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Pearywinkle Creative notifies the Client of such change.
18.7 – Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
18.8 – The failure by Pearywinkle Creative to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Pearywinkle Creative right to subsequently enforce that provision.
18.9 - All prices quoted are valid for 30 days only from the date of written quotation.
18.10 - If the client has made no contact with Pearywinkle Creative office for a period of more than 1 month after the project and or any design work has commenced, Pearywinkle Creative reserves the right to reqoute the entire project.
18.11 - If any project exceeds a period of more than 6 months, Pearywinkle Creative reserves the right to terminate the project at its own discretion, without any refunds being paid to the client.
The Customer acknowledges that Pearywinkle Creative makes no warranty that a search engine optimisation will lead to or improve any increase in sales, profits or any other form of improvement for the Customer’s business or any other purpose
To the fullest extent permissible by law, Pearywinkle Creative shall not be liable to the Customer for any damages, including without limitation any direct, indirect, special, punitive, incidental or consequential damages (including but not limited to damages for loss of business profits, business interruption, loss of programs or information, loss of profits or goodwill or loss of use of facilities or equipment), or any other damages arising whether arising from the negligence of Pearywinkle Creative or otherwise
Where liability cannot be legally excluded, the liability of Pearywinkle Creative shall be limited to the cost of supplying the service again
The Customer agrees to indemnify Pearywinkle Creative for any third party claim for damages arising out of or in any way connected with the supply of services to the Customer, including without limitation any direct, indirect, special, punitive, incidental or consequential damages (including but not limited to damages for loss of business profits, business interruption, loss of programs or information, loss of profits or goodwill or loss of use of facilities or equipment), or any other damages arising whether arising from the negligence of Pearywinkle Creative or otherwise
The Customer expressly agree to indemnify and hold harmless Pearywinkle Creative , its subsidiaries, affiliates, officers, agents and other partners and its and their respective employees from and against all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys fees and disbursements and court costs) arising from or in connection with the Customer’s information, the Customer’s use of Pearywinkle Creative search engine optimisation services.
Pearywinkle Creative does not refund any money received from clients for any past SEO work that they have been asked to carry out. All monies received by Pearywinkle Creative for any SEO work will not be refunded at any stage even if the client cancels the SEO service.
You must follow all instructions provided by Pearywinkle Creative and provide to Pearywinkle Creative , in a timely manner, all information and materials requested by Pearywinkle Creative .
Pearywinkle Creative will request feedback and changes at certain stages of undertaking the process of designing and developing your website or application. These changes and amends must be sent to Pearywinkle Creative in a timely manner. Sending excessive or multiple emails may cause important details to be missed and may result in you incurring additional charges.
As soon as your website or application is uploaded and made live online or handed over to you, any further work or changes will result in you incurring additional costs, unless otherwise specified.
Pearywinkle Creative will provide you with an estimate that your website or application can be designed and built.
This time frame is an estimation only.
You must make every effort to follow the instructions provided by Pearywinkle Creative and provide the required information to Pearywinkle Creative in order to facilitate delivery times and correct specifications.
Delays in providing the required information to Pearywinkle Creative may result in delays in product delivery.
Pearywinkle Creative will make all reasonable efforts to provide the product by the estimated date but do not accept liability for any costs incurred, loss or damage (including consequential loss or damage) compensation or loss of earnings due to any failure to meet agreed deadlines.
If you require Pearywinkle Creative to make changes to your website or application after it is handed over to you, you will be required to pay for this work at an agreed quoted fee or our hourly rate. All work must be paid for upfront.
Pearywinkle Creative include a "fair" and "reasonable" set number of rounds of changes (3 rounds) during its website or application design + development phase. Any extra changes required by you may incur additional costs and such extra changes can be purchased during the sales process.
Changes must be submitted in one email and one email of changes (within the scope of the project) is considered one round of changes. Unless agreed to at the beginning of the project.
Please ensure that you limit your changes to comply with the agreed specifications. Failure to do this may result in you incurring additional costs.
Pearywinkle Creative may include a link to its own website at the footer of your website and, where such link is so included, you must not take any steps to remove this link. Pearywinkle Creative reserves the right to change any such links from time to time.
All prices quoted are valid for 30 days only from the date of written quotation.
Pearywinkle Creative reserves the right to suspend/cancel any or all services provided to you, if:–
You have any outstanding invoices or accounts;
Your account is in dispute or the subject of a dispute resolution procedure, court order, judgment, finding or determination;
You fail to comply with any provision of these terms and conditions or any other policy, directive or requirement notified to you by Pearywinkle Creative .
If you have not paid for the hosting of your website( which Pearywinkle Creative has paid for on your behalf) Pearywinkle Creative reserves the right to terminate your hosting. Hosting will only resume once invoices have been paid. If the customer’s website has been terminated due to cancellation of hosting, Pearywinkle Creative can reinstall the website at a cost of $195 + GST providing the client has a backup of the website.
Once we have commenced work on your project no refund is available on the deposit paid for your project. Work may include, but is not limited to; contact between yourself and an Account Manager and/or website designer from Pearywinkle Creative , the commencement of wireframes/prototypes by Pearywinkle Creative for your project, the commencement of design concepts by Pearywinkle Creative for your project and other work undertaken by Pearywinkle Creative in relation to your project.
Pearywinkle Creative will make every effort to ensure websites are designed to be viewed by the majority of visitors. Websites are designed to work with the main browsers Google Chrome, Safari and Mozilla Firefox latest releases. You understand that we cannot guarantee correct functionality with all browser software across different operating systems. If you require the website to comply with other browsers this may not be possible.