Bark Productions Australia PTY LTD | ABN 49 745 302 791
These terms and conditions apply to all services and products supplied by Bark Productions. By commissioning any work or product from Bark Productions, or accepting a Bark Productions proposal and providing instructions to proceed, you are deemed to have read, understood, accepted, and to be bound by, these terms and conditions.
Customers may commission work or products by placing an order with Bark Productions verbally or by email. Bark Productions is not bound to perform any services or supply any products unless and until the order has been confirmed, and a job identification number allocated, by a Bark Productions representative. Bark Productions will always confirm orders with a job identification number and cost prior to proceeding.
By commissioning any job with Bark Productions , or accepting a proposal, you authorise Bark Productions to proceed with the work or product as confirmed by Bark Productions. For jobs that are cancelled or placed on hold by the customer, the customer will remain liable for the cost of all work carried out, and materials procured, up until the date of cancellation.
Bark Productions office hours are 8am – 5.00pm, Monday to Friday. Telephone calls received out of hours will be diverted to our answering service and dealt with on the next working day.
Contacting Bark Productions In order to deal more effectively with your queries, we ask that you put any questions to us in writing. This system allows us to distribute questions to the appropriate departments, and thereby respond to you, more efficiently. Your account manager/project manager will advise direct and relevant contact details, there are also other ways to contact us:
- Email: firstname.lastname@example.org
- Email: email@example.com
- Phone:1300 768 420
- Address :1 Hayward St, Paddington QLD 4064
- Address: PO Box 762 Paddington QLD 4064
Provision of Materials
The customer represents to Bark Productions and unconditionally warrants that any information, data, graphical elements, and any other material furnished by the customer to Bark Productions for inclusion in the project is owned by the customer, or that the customer has permission from the rightful owner of the relevant Intellectual Property Rights to use the content and subject matter for the commissioned work or product, and will indemnify Bark Productions, and keep Bark Productions indemnified, from and against any claim or suit incurred or suffered by Bark Productions as a direct or indirect result of the use of any material furnished by or on behalf of the customer.
All quotes for work are valid for thirty (30) days, after which time all proposed work will have to be re-quoted. We take no responsibility for a re-quoted price differing from an original quote. The customer agrees to pay the price for work or products as specified in any current quotation or confirmed price supplied by Bark Productions, or as otherwise specified in these terms and conditions. All prices are exclusive of any GST, unless otherwise expressly stated. Bark Productions may charge interest on overdue amounts at the rate of 1.5% per calendar month, calculated daily on outstanding balances.
Outside Original Scope
Any design or developments deemed outside of original scope will be advised and quoted prior to completion. Subject to these terms and conditions, any additional work requested by the customer will be charged at our standard hourly rates.
Print Proof Agreement
If Bark Productions has provided you with a print proof, you agree to the design and contents of the printed/pdf document as depicted on the proof. By approval of a proof via email, you release Bark Productions from all liability for any errors, omissions or discrepancies which may be present on the proof. Once the final proof is supplied, you are not able to make any changes to the final product, and Bark Productions will not be responsible for anything you are later unhappy with. As long as the finished product is consistent with the proof you have approved, you must pay in full for the work. This fact applies whether or not you later take issue with any aspect of the work.
Making Changes After Proof Stage (Print Only)
Any changes agreed to be made by Bark Productions after a proof is approved by the customer will result in further film / plate(s) charges and artwork charges.
Print Quality (Print Only)
Every effort will be made to obtain the best possible colour reproduction on a customer’s work but because of the nature of the processes involved, Bark Productions cannot guarantee an exact match in colour or texture between any materials with which you supply us, and the printed article. Business cards produced by Bark do not have a guaranteed specification and we reserve the right to vary stock or quality as we see fit, or circumstances/availability dictate. If the exact specification is important, the client must advise Bark of these requirements at the commencement of the job.
Print Quantity Supplied
Every effort is made to produce the exact quantity of items ordered. However, some variation is inherent in the print process and so you accept that minor variations in quantity are possible. These do not affect the price charged.
Advice of damage, delay or partial loss of goods in transit or of non-delivery must be given in writing to Bark Productions within three clear days of delivery (or, in the case of non-delivery, within 28 days of dispatch of the goods) and any claim in respect thereof must be made in writing to Bark Productions and the carrier within seven clear days of delivery (or, in the case of nondelivery, within 42 days of dispatch).
Standing Material (Print Only)
All materials (including but not limited to film, plates, negatives and positives) produced and used by Bark Productions during the production process remain the property of Bark Productions.
Payment Terms (Print)
New customers agree to pay a deposit of 40% of the total price (including GST) upon ordering, and to pay the outstanding balance immediately upon invoice following delivery of the completed work. Existing customers agree to adhere to the terms stated on the invoice. All deposit payments are non-refundable.
Websites & Digital
Websites, Database, CMS, application and e-commerce development
Bark Productions excludes all liability for any losses incurred by the use of any software created for the customer by Bark Productions. The customer is expected to fully test any application or program relating to a site developed by Bark Productions, before the site is made available for general use. Whilst reasonable care has been taken to ensure products are bug free and accurate, the ultimate responsibility lies with the customer to ensure that all software is fully tested and is functioning correctly before use. The Intellectual Property Rights subsisting in scripts, cgi applications, php scripts or software written by Bark Productions (“Proprietary Code”) remains the property of Bark Productions and may only be commercially reproduced or resold with the permission of Bark Productions. Where applications or sites are developed on servers not recommended by Bark Productions, the customer is expected to provide information, software and support relating to the server to assist with the correct development of the application. Any assistance or work required from Bark Productions for external hosting will incur additional charges.
Website Updates & Site Maintenance
Our website development services cease once the website has been approved and deployed although text and document changes required during the first two weeks post deployment will be completed at no further cost. Ongoing maintenance, further development and content updates after this period will attract further charges. If required we can provide this service on an hourly rate basis or under a maintenance plan. Compatibility Bark Productions will ensure that any site or application it produces for the customer will function on the server to which it is initially installed when viewed with current versions of IE7+, Chrome, Firefox and Safari. We offer no guarantee of compatibility with all browser software including future releases.
- Stage 1 Website design The customer must thoroughly review the website design, providing feedback within five business days of request.
- Stage 2 Wireframe development The customer must review the website wireframe development (empty website shell or working website without content), providing feedback within five business days of request.
- Stage 3 Completion The customer must carefully review the completed website including all content, providing feedback on any changes within three business days of request.
- Stage 4 Go Live The customer will review any changes made in stage three and authorise Bark Productions to launch the project. Any changes requested after the final review will be considered additional and charged at our standard hourly rates, however text and document changes notified by the customer during the first two weeks post deployment will not attract any additional charges.
Content and Data Entry
The supply of content and other material is the responsibility of the customer, unless and to the extent that the customer is employing Bark Productions’s copywriting service, in respect of which additional charges apply at our standard hourly rates. All content for all sections of the website must be supplied at an agreed time prior to Stage 3 of development, and preferably in one delivery. Content must be thoroughly reviewed by the customer before it is supplied to Bark Productions. We are not responsible for any spelling, grammatical or other errors in customer supplied content. Content must follow the directions of the sitemap. For example, if the sitemap indicates five pages, content must be supplied for five pages.
Hosting & Email Accounts
Hosting for websites is charged yearly in advance. Bark Productions utilises the services of third party hosting companies to provide our hosting service. Depending on the website developed for the customer we may nominate to host the website on a shared server under a reseller agreement, a Virtual Dedicated Server leased by Bark Productions or we may establish a direct hosting account for the website depending on requirements. Bark Productions is bound by the terms and conditions of the hosting provider and we will supply these to the customer on request. The customer agrees that it will observe and comply with all relevant hosting terms and conditions, and that the hosting services will be provided by Bark Productions in accordance with and subject to those hosting terms and conditions. If required by Bark Productions; the customer may be required to enter into a separate hosting agreement.
Website Design Proofs
Once a customer has agreed to look and feel proof and instructed Bark Productions to proceed to build, any subsequent changes in style or design requested by the customer will be charged for at our standard hourly rate.
Payment Terms (Web)
A deposit invoice for 30% of the project total will be issued on your approval to proceed with the project. This deposit is payable prior to the commencement of the project, and is non-refundable. A progress payment of a further 30% of project total will be issued on approval of the design concept (completion of Stage 1), and is payable immediately. A final invoice will be issued on completion of Stage 3 and will include fees for any variations for work outside of original scope to the project fee for additional services requested if applicable. The final invoice is payable within 7 days of issue.
The customer acknowledges and agrees that:
- Bark Productions is not responsible for:
- the security of any of the customer’s websites or any services or products provided using cloud storage;
- the back-up, deletion, corruption or failure to store any data; and
- Bark Productions provides no warranties regarding security, reliability, protection from attacks, data integrity or data availability.
The Customer is solely responsible for procedures and controls for website logins and passwords.
General Terms and Conditions
New Intellectual Property
Unless otherwise negotiated and agreed in writing, the copyright and all other Intellectual Property Rights subsisting in any general artwork, commissioned artwork, illustrations, website design, programming modules, software (including source and object code), data, materials, tools, drawings, documents, presentations, specifications, designs, know-how, copy and any other work or other subject matter created by Bark Productions, will remain with Bark Productions (“Bark Productions IP”).
It is the customer’s responsibility to obtain all necessary authorities required for the use of any content and other materials provided by the customer to Bark Productions. By commissioning any work or product from Bark Productions, you warrant and represent to Bark Productions that you have obtained all authorisations, licences and permissions required for Bark Productions to undertake the work or develop the product in compliance with all relevant laws.
Bark Productions reserves the right to use any artwork or printing we produce for the purposes of promoting our services, including, without limitation, on Bark Productions’ website, unless we agree otherwise in writing.
Background Intellectual Property
Bark Productions retains copyright and all other Intellectual Property Rights existing prior to commencement of the supply of its services or the creation of any commissioned product (“Bark Productions Background IP”).
Unless agreed otherwise in writing, Bark Productions will be entitled to claim authorship for work for which it is responsible.
Subject to payment of all amounts owed by the customer to Bark Productions upon any account, and these terms and conditions, Bark Productions grants a worldwide, royalty free, perpetual licence to the customer to access and use the Bark Productions IP, and Bark Productions Background IP, on a non-exclusive basis to such extent as is reasonably necessary to enable the customer to make reasonable use of the relevant services or products supplied by Bark Productions. Bark Productions may revoke this licence for so long as any amount that is owed by the customer to Bark Productions, upon any account, is overdue.
The customer must not use, or apply to register as a part of any business name, company name or domain name, the name of Bark Productions, or any of Bark Productions’ logos, domain names or other trade marks, without the written consent of Bark Productions, which consent may be granted or refused at the sole discretion of Bark Productions.
The customer acknowledges and agrees that Bark Productions’s services and products may include or use third party software or other third party Intellectual Property Rights (including, without limitation, content management systems and open source software) (“Third Party IP”) and the customer’s rights to use Bark Productions’ services and products is subject to and without prejudice to the Third Party IP. Any rights you may have to access Third Party IP are limited to extent of Bark Productions’ right to access same and its ability to sublicense such rights to you.
Nothing in these terms and conditions affects the ownership of any Intellectual Property Rights subsisting in any content or other material, data or content provided by the customer to Bark Productions, and to the extent that they are owned by the customer, the customer grants Bark Productions a licence to use and sub-license the customer’s Intellectual Property Rights to extent required to perform Bark Productions’ services or supply the commissioned products.
In relation to any data, content, information or material provided by the customer to Bark Productions (including materials and site software), you warrant that the use of same will not infringe the Intellectual Property Rights or other rights of any third party, nor contravene any law or industry code.
Save as required by law, the customer must not use or disclose any Confidential Information it obtains relating to Bark Productions or its affiliates, to anyone (except the customer’s employees on an as need basis). The customer must procure that
end users and anyone else receiving benefit of Bark Production’s services or products, and all of the customer’s employees, comply with terms of this clause as if they were the customer.
General Warranties & Liability
With the exception of the Consumer guarantees provided by the ACL and any express warranties provided in this document, all conditions, warranties and obligations, whether implied or imposed by statute or otherwise, in respect of the supply of any services or products by Bark Productions, are excluded, including any conditions or warranties as to merchantability, fitness for purpose or correspondence with description.
Subject to any liability under the ACL which cannot be excluded, Bark Productions does not accept liability for any delay or failure to deliver any products or services, or any other liability, direct loss, indirect loss, Consequential Loss or damage, however caused (including, without limitation, through negligence or misrepresentation), which the customer may directly or indirectly suffer in connection with any services or products.
If the customer is a Consumer and liability under the ACL cannot be excluded but can be limited, where any of Bark Productions’ products or services are NOT acquired for personal, domestic or household use or consumption, any liability for any direct loss, indirect loss, Consequential Loss or other damage, however caused (including, without limitation, through misrepresentation or negligence) which the customer may incur or suffer in connection with Bark Productions’ products or services is limited to (at the election of Bark Productions) one or more of the following:
- Replacement of the relevant products or the supply of equivalent products, or in the case of services, supplying the services again; or
- Payment of the cost of replacing the relevant products or the cost acquiring equivalent products or services, or in the case of services, payment of the cost of having the services supplied again.
Nothing in these terms and conditions excludes or limits any guarantees or liability arising under the ACL or any other statute if and to the extent that liability cannot be lawfully excluded.
If the ACL or any other applicable legislation prohibits the limitation or exclusion of liability of Bark Productions in the manner contemplated by this document with respect to particular loss or damage, then:
- the relevant limitation or exclusion does not apply to that loss or damage; and
- that party’s liability is only limited or excluded with respect to that loss or damage in the manner permitted under that legislation (if any).
- The customer must indemnify Bark Productions, and keep Bark Productions indemnified against, any claims, loss or damage (inducing legal costs on a solicitor and own client basis) suffered or incurred by Bark Productions, or any employee, subcontractor or officer of Bark Productions, however caused in connection with:
- any breach of these terms and conditions, or any relevant hosting terms and conditions, by the customer;
- any content or other material or subject matter supplied by the customer to Bark Productions; or
- any misrepresentation, or a breach of any warranty contained in these terms and conditions, by the customer or any employee ore representative of the customer:
Bark Productions accept no responsibility if we are unable to supply services or products for any reason beyond our control including (without limiting the foregoing) Act of God, legislation, war, fire, flood, drought, failure of power supply, lock-out, strike or other action taken by employees in contemplation or furtherance of a dispute or owing to any inability to procure materials required for the performance of the contract. During the continuance of such a contingency for a period of 30 days or more, you may, by written notice to ourselves, elect to terminate the contract and pay for work done and materials used up to the date of communication of the notice of termination, but otherwise must accept delivery when available.
Bark Productions agrees keep the Confidential Information of its customers confidential, including all administration areas of websites and details of referrers and those who are referred. All such data recorded by a website will be will be treated as if it is confidential personal information in accordance with the Australian Privacy Principles contained in the Privacy Act 1988 (Cth).
These terms and conditions represent the entire agreement made between the parties with respect to its subject matter, and supersede all prior representations, arrangements and agreements made by or between the parties with respect to its subject matter.
These terms and conditions may only be varied by the written agreement of both parties.
Subcontracting and assignment
Bark Productions may subcontract all or part of any of its services agreed to be supplied to the customer, or the performance of any of its obligations under these terms and conditions. Only Bark Productions may assign or novate its interests under these terms and conditions. If requested by Bark Productions, the customer must sign a deed of assignment or novation.
Neither these terms and conditions, or the supply of any services or products by Bark Productions, creates any fiduciary obligations on the part of Bark Productions, or any relationship of employment, trust, agency, joint venture or partnership between the parties.
Each provision in these terms and conditions must be read and construed as a separate and severable provision or part and if any provision is void or otherwise unenforceable for any reason, then that provision will be severed and the remainder will be read and construed as if the severable provision had never existed.
Governing law and jurisdiction
This Agreement and any dispute or claim arising out of or in connection with it will be governed by and construed in accordance with the laws of Queensland, Australia and parties submit to the exclusive jurisdiction of that State.
In these terms and conditions:
ACL means the Australian Consumer Law as contained in the Competition and Consumer Act 2010 (Cth).
Bark Productions means Bark Productions Australia Pty Ltd ACN 122 101 179 and includes, jointly and severally, its associates and related bodies corporate, as those terms are defined in the Corporations Act 2001 (Cth).
Confidential Information means all information, documentation, materials, ideas, trade secrets, data, databases, software (including source and object code), inventions, technology, know-how, dealings, systems or technical, commercial, management, financial or legal information utilised by, or relating to, a party, or the customers, suppliers, employees or contractors of a party, that is disclosed or otherwise made available to the other party, and that is not, or does not become, part of public knowledge other than by reason of a breach of this document or another obligation of confidence.
Consequential Loss includes, without limitation: a) damage to any third party’s property; b) loss of profits; c) loss of revenue; d) loss of data; e) lost production; f) loss of business; g) loss of the benefit of any contract or other agreement or arrangement; h) damage to reputation; and j) legal costs.
Consumer has the meaning given to that term in the ACL.
“GST” mean good and services tax.
Intellectual Property Rights means all industrial and intellectual property rights throughout the world, whether registered or unregistered, including without limitation copyright, future copyright, patents, designs, trade marks, domain names, business names, company names, service marks, circuit layout rights, data and database rights, know how, trade secrets and all applications and rights in relation to registration of such rights, whether created before, on or after the date of the supply of any services or products by Bark Productions. 01102012