1. These terms prevail over any terms the Client may issue. Edison Digital (Edison)’s quotation, whether verbal or written, (when accepted by the Client), and subject to that, these terms, together comprise a contract.
2. In these terms: GST and tax invoice have their meaning in A New Tax System (Goods and Services Tax Act) 1999; product means goods and / or services Edison may supply under the contract, and digital product means a product in digital format, such as a website, touchscreen, slideshow, video or software.
3. The Client must provide Edison on a timely basis with instructions / information / access to the Client’s people and relevant resources as reasonably required by Edison.
4. If Edison is to use any language / symbol / font / photograph / sketch / data / software / technical specification or other material sourced from the Client: (a) the Client warrants that such do not infringe 3rd party rights (such as copyright) or any law, are fit for purpose and will be delivered to Edison in the form and within the time Edison requires; (b) Edison is not obliged to check or test those things before use; and (c) the use of those things is wholly at the Client’s risk.
5. The Client alone is liable to proof all artwork and production files before sign-off and / or production. Such includes typography, spelling, grammar, colours, formatting and file errors.
6. Edison remains owner of any goods it supplies, until the Client fully pays for those goods. Risk of loss / damage to such goods passes to the Client upon delivery to the Client or, if Edison is to install the goods for the Client, upon installation.
7. If Edison creates and supplies any copyright work, then unless otherwise agreed in writing: (a) Edison owns the copyright; and (b) the Client obtains a non-exclusive, irrevocable, perpetual, non-assignable, royalty-free licence to use, adapt, reproduce, publish and sub-licence that work for the purpose/s for which created, effective upon the Client paying the price of that work to Edison.
8. If it is agreed for a copyright work created by Edison to vest in the Client, Edison has an irrevocable, perpetual, non-assignable, royalty-free licence from the Client to use the work for Edison’s own promotion and portfolio use.
9. If Edison supplies 3rd party software for a digital product, the Client must adhere to customary licence terms and conditions of the original supplier as advised to the Client before or on supply of the digital product.
10. If Edison’s quotation expressly states a price as an estimate, that is not a fixed quote or a maximum price.
11. Edison’s quoted price: (a) is not valid for a different kind / quantity of product than that stated in the quotation; (b) assumes work only during normal business hours; and (c) assumes no rework required or inefficiency due to the Client’s breach of these terms.
12. If after the contract forms the Client either requires any changes to a product from that initially contracted for, or requires any work be done with special urgency or after-hours, Edison may adjust its price as then agreed or, if not agreed in advance by a reasonable extent.
13. If the contract is cancelled, Edison may recover its time charges and expenses incurred before the cancellation.
14. Unless stated otherwise, a price (fixed or estimated) of a product: (a) is before GST; (b) does not include transport of product to the Client; and (c) does not include installation / commissioning of the product.
15. In addition to its price, Edison may recover from the Client the GST that Edison incurs by its supply of product to the Client.
16. In addition to its price, Edison may recover from the Client any external expenses incurred with the Client’s prior written approval. Where a significant external expense is likely (e.g., for a production run of artwork), Edison may require the Client pre-pay all or portion of the expense.
17. Unless a price references agreed milestones, Edison may issue interim tax invoices at least monthly, even if the contract is then incomplete. In any event, when the contract is complete Edison must issue the Client a tax invoice for any amount then due under the contract.
18. If the Client disputes anything on Edison’s invoice, within 28 days of the date of the invoice, the Client must notify Edison (giving reasonable details), failing which the Client waives all rights to dispute that invoice.
19. The Client must pay Edison’s invoice by: (a) electronic transfer in clear funds to a bank account Edison nominates in writing, unless another method of payment is agreed to by Edison; and (b) the due date shown, and (unless Edison agrees) without deduction for any sum.
20. If an invoice is not paid within time, in addition to its other rights and remedies, Edison may: (a) cancel / suspend supply of product under any contract with the Client; and (b) recover from the Client as a debt a late payment fee accruing daily at 12% p.a. on the unpaid amount calculated from the due date until the date payment in full (plus accrued late payment fee) is made to Edison. Late payment fees accrued and not paid for 30 days add to the debt (are capitalised), and thereafter attract late payment fee.
21. Unless otherwise stated, Edison’s description of its product accords with Australian trade usage.
22. Edison warrants: (a) any goods it supplies conform to any samples given and are owned by Edison (free of security interests granted by Edison) when supplied; (b) in supplying a service Edison will use reasonable care; and (c) content Edison creates will not infringe any 3rd party rights. Subject to the Australian Consumer Law if it applies, Edison does not give any warranty, representation, condition or guarantee of its supply not stated in these terms.
23. Edison will not be responsible for any loss or damage suffered by any party arising from a failure to comply with product labelling laws that were not communicated to Edison by the Client in writing.
24. Where Edison is not engaged to coordinate the printing of materials designed by Edison, it will not be responsible for any defects in the instruction of printers or any dissatisfaction in the colour or visual appearance of printed goods based on Edison’s designs.
25. Subject to the Australian Consumer Law if it applies: (a) a claim that product Edison supplies does not conform to the contract or is otherwise defective is not valid unless advised in writing (with reasonable details) to Edison within 7 days after the alleged problem was first found; and (b) Edison may decline a claim for defective product if the Client does not take reasonable steps to preserve the product (or the balance remaining) pending an inspection by Edison, if Edison requires inspection.
26. Subject to the Australian Consumer Law if it applies, if a product Edison supplies does not conform to the contract or is otherwise defective for reasons that are Edison’s responsibility, Edison’s liability for the problem is limited to (at its choice): (i) in case of goods, the prompt replacement of the goods or the supply of equivalent goods; (ii) in case of services, the provision of the services again; and / or (iii) in any case, a reasonable reduction in the price paid or payable.
27. If a product warranty claim is found or admitted to be without merit, Edison may recover from the Client as a debt any reasonable costs Edison incurs investigating the claim.
28. While Edison would endeavour to ensure that print-ready artwork is colour correct and free of errors, Edison is not liable for colour matching or production quality if the Client manages the printing process themselves.
29. In the case of a digital product: (a) Edison is not liable to proof read content provided by the Client; (b) Edison offers no assurance an electronic file can be retrieved from Edison archive or storage at any time after the contract is complete; (c) Edison is not liable for loss of original functionality or appearance due to a change to the host ICT environment after initial installation; and (d) unless otherwise expressly agreed in writing, Edison is not liable to maintain the product after initial installation.
30. Despite any other provision of these terms but subject to law, the Client cannot claim against Edison (under common law, equity or statute) in connection with the contract, nor seek a reduction in a price: (a) for total amounts exceeding 200% (including GST) of the total prices (including GST) paid or payable under the contract; or (b) for any loss of income / revenue / profit / business / anticipated savings / goodwill / value of a capital asset / reduction in share price or any other types of indirect, special or consequential loss or damage whether or not foreseeable.
31. Edison may subcontract any of its duties, but remains liable to the Client for those duties.
32. If the Client is more than 1 person, the contract binds each of them jointly and severally, and each of them has authority to bind the other/s in connection with the contract, including that a notice to / from any such person is notice to / from all of them.
33. If the Client nominates a 3rd party as recipient of a product, or as the addressee of an invoice, the Client remains liable.
34. Except with Edison’s prior written consent, the Client may not assign the contract.
35. At all times a party must not make improper use or disclosure of any information about the other party (not then in the public domain) obtained in negotiations for, or in performance of, the contract.
36. Subject to clause 34, the contract does not prevent Edison supplying the same or similar product to any 3rd party.
37. In no case is Edison liable for any loss of revenue / profits / goodwill or any incidental, consequential or punitive damages as a result of any claim in connection with its supply of or failure to supply product.
38. A party is not liable for any delay to the extent caused by a circumstance outside that party’s reasonable control.
39. The contract may only be varied (including delayed) or cancelled as the parties agree in writing. A party waives a right under the contract only by writing signed by or for that party. A variation to Edison’s contractual duties should be agreed in writing as to the effect on the timetable and price. Absent such agreement, Edison is entitled to a reasonable additional fee / time to effect any increase to the initial scope of its duties.
40. In addition to its other rights and remedies, Edison may suspend / cancel the contract and retain or retake possession of product not paid for if Edison reasonably believes the Client to be insolvent, or if the Client is in default under any contract with Edison.
41. A party must pay all reasonable costs the other party incurs in enforcing the contract against, or recovering money from, the other party; such costs may include legal costs on a solicitor / client basis.
42. A party must take all reasonable steps to ensure emails (and any attachments) or other electronic data exchanged with the other party for the purposes of the contract is free of computer viruses or other malware.