Heng Design Pty Ltd t/as Heng Design – Terms of Trade

1. Definitions
In these Terms & Conditions of Supply, unless the context otherwise requires:
1.1 ‘Client’ means any person or entity, which requests the Services of Heng Design as described on any Quote or Invoice issued by Heng Design, or any person acting with the authority of the Client;
1.2 ‘Claim’ means any actual, present or future claim, demand, action, or proceeding for any Liability, compensation, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort or otherwise;
1.3 ‘Confidential Information’ means information in any form which:
(a) is disclosed to the Client in connection with these Terms;
(b) is prepared or produced under or in connection with these Terms;
(c) contains the Data;
(d) relates to the business, assets or affairs of Heng Design; or
(e) relates to the subject matter, the terms and/or any transactions connected to the Terms.
1.4 ‘Data’ means design or code software, in object code form, and any data and/or tools created, acquired or licensed by or to Heng Design either before or during the course of performing the Services for the Client, and utilised in any manner by Heng Design in performing the Services.
1.5 ‘Deposit’ means a non-refundable deposit in the amount set out in an Invoice, which represents 50% of the Fee (or other amount as agreed by Heng Design), and is payable in full by the Client before the commencement of any Work relating to a Project, or as required by Heng Design;
1.6 ‘Fee’ means the fee that is payable by the Client in consideration for the Services, in the amount and manner described in a Quote or Invoice;
1.7 ‘GST’ means the goods and services tax as imposed by the the A New Tax System (Goods and Services Tax) Act 1999 and its associated legislation.
1.8 ‘Heng Design’ means Heng Design Pty Ltd (ACN 611 817 853) trading as ‘Heng Design’ (ABN 78 611 817 853) of 58 Nicholson Street, Nunawading, Victoria, and includes its successors & assigns;
1.9 ‘Intellectual Property’ means any concepts, draft artwork, creative works, plans for designs (or design elements), fonts and imagery, working files, unique campaign ideas, slogans, copy themes, preliminary sketches, layouts, copy, draft artwork, production services, public and other marketing material (whether on paper, computer disk, by email or in some other digital format);
1.10 ‘Invoice’ means a tax invoice issued by Heng Design for the Services.
1.11 ‘Liability’ means any claim, loss, liability, cost, payment, damages, debt or expense (whether actual, contingent or prospective) howsoever arising, whether direct or indirect;
1.12 ‘Project’ means the scope of Works relating to the Services as detailed in a Quote;
1.13 ‘Quote’ means a written quote for the costs of supplying the Services to the Client in connection to a Project based on the instructions of the Client;
1.14 ‘Services’ means the branding and design services supplied by Heng Design to the Client pursuant to any Quote or Invoice;
1.15 ‘Terms’ means these terms and conditions of supply; and
1.16 ‘Works’ means all visual artwork, text, drawings, illustrations, graphics, logos, brand design and other creative work produced by Heng Design specifically for the Client in relation to a Project whether captured, delivered or stored in photographic, magnetic, electronic, digital or other media, but will not include any Intellectual Property developed and owned by Heng Design in the course of providing the Services or the Data.

2. Agreement
2.1 An agreement shall arise between Heng Design and the Client (Agreement), when:
(a) Heng Design has provided a Quote to the Client; and
(b) the Client accepts the Quote prior to its expiration date by instructing Heng Design to proceed; and
(c) if required by Heng Design, the Client paying the Deposit specified in the Invoice.
2.2 The Terms & the Quote, contain the entire agreement of the parties. If there is any inconsistency between these Terms and the Quote, these Terms will prevail to the extent of inconsistency.
2.3 A Quote is valid for 30 days from the date of issue. If the Quote is not accepted within this timeframe and the Deposit is not paid (if required by Heng Design), then the Quote will automatically expire and Heng Design reserves the right to amend the nature of, scope or quantity of the Works and the Fee in any applicable Quote.
2.4 Heng Design reserves the right to vary the nature of, scope or quantity of the Works and the Fee in any applicable revised quote (Revised Quote) to reflect:
(a) any increase in costs connected to the Project; and
(b) any change of instructions by the Client.
Heng Design will advise the Client of any such proposed change & the Client will have the right to:
(c) cancel (by notice in writing to Heng Design) the Agreement, subject to the payment of all costs for work performed by Heng Design up to the date of such cancellation; or
(d) continue with the Services and the Client will be liable to pay the amount outlined in the Revised Quote to Heng Design in accordance with any subsequent Invoice issued.

3. Client Instructions
3.1 Before any Works can be commenced, the Client must provide Heng Design all things necessary (including all info, documents, images, or material) to allow Heng Design to perform the Services.
3.2 Heng Design will not be responsible for any delay in its performance of the Services which arises because of the Client’s delay in providing information.
3.3 Heng Design will only be required to perform the Services in accordance with the instructions specified in the Quote. Heng Design is not responsible for any errors in the Client’s instructions.
3.4 The Client indemnifies Heng Design for any Liability arising or incurred by the Client or any other person arising from any errors.

4. Payment & Fees for Service
4.1 Unless otherwise specifically stated, all prices described in an Invoice are exclusive of GST.
4.2 The Client agrees to pay:
(a) if required by Heng Design, the Deposit, prior to the commencement of any Works relating to a Project as detailed in a Quote;
(b) the balance of the Fee, in the amounts and manner described in a Quote; and
(c) all disbursements (including travel, accommodation and third party costs) incurred by Heng Design in the provision of the Services,
which is payable strictly in accordance with each Invoice.
4.3 If the Buyer fails to make payment of the Fee in accordance with any Invoice, or is otherwise in breach of any of these Terms, Heng Design may at its absolute discretion:
(a) cease providing any further Works or Services on the Project (or any aspect of the Project) until all outstanding Invoices have been paid in full;
(b) charge default interest at the rate of 4% per annum higher than the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic) computed on the amount overdue, calculated daily from the due date for payment until paid in full;
(c) claim from the Client all Liability, including legal fees (on an indemnity basis) incurred by Heng Design consequent upon the Client’s failure to pay on the due date the Fee; and/or
(d) terminate the Agreement,
without prejudice to any other rights that Heng Design may have.
4.4 Unless otherwise expressly stated, all prices and sums are payable in Australian dollars.

5. Cancellation
5.1 Should the Client wish to cancel this Agreement or any part of the Project, other than in accordance with clause 2.4, they must do so in writing and the Client acknowledges that in doing so shall:
(a) forfeit the Deposit;
(b) be Liable for any additional Works performed by Heng Design up until cancellation;
(c) immediately return, and be Liable for any unauthorised use of, any element of the Works, Data, Intellectual Property or any Confidential Information on a Project that is created or belongs to Heng Design;
5.2 Heng Design may unilaterally delay, suspend or cancel the Work (or any element of the Project), at any time due to unforeseeable circumstances in which case, if no Works have begun on a Project, Heng Design will refund any payment made by the Client in full.

6. Liability
6.1 To the fullest extent permitted by law, except as provided herein or under the ACL:
(a) the Client warrants that it has not relied upon any warranty, representation, statement, offer or documentation made or provided by or on behalf of Heng Design;
(b) the Client agrees that these Terms excludes all conditions and warranties implied by statute, except to the extent such conditions and warranties are expressed in the Terms;
(c) Heng Design’s maximum aggregate Liability arising from or in connection with the Services will be limited to, and will not exceed, the portion of the Fee paid by the Client to Heng Design for the Services the subject of the relevant Claim;
(d) Heng Design will have no Liability, and the Client releases and discharges Heng Design from all Liability, arising from or in connection with any:
(i) event or circumstance beyond its reasonable control;
(ii) acts or omissions of the Client;
(iii) defect, error, omission or lack of suitability or benefit (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the Services; and/or
(iv) loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data; and
(e) the Client will indemnify Heng Design for and against all Liability arising from or in connection with any wrongful act or omission by the Client.

7. Ownership Rights, Assignment and License
7.1 The Client acknowledges and agrees that copyright in the Works pursuant to a Quote or Project shall be assigned from Heng Design to the Client immediately upon full and final payment of all outstanding Invoices relating to that Work (or any aspect of the Project).
7.2 Heng Design will retain all right, title and interest in and to:
(a) the Intellectual Property developed by Heng Design in providing the Services; and
(b) the Data,
including any updates.
7.3 For the avoidance of doubt, any mock or preliminary draft concepts, sketches, ideas, Data supplied to the Client in the course of providing the Services, including any works provided that the Client does not accept (Draft Works), remain the absolute property of Heng Design and Heng Design reserves the right to use the Draft Works at its discretion. The Client agrees that there is no assignment of Intellectual Property rights in the Draft Works.
7.4 The Client hereby grants to Heng Design a royalty-free, non-exclusive license to use, reproduce, modify, transmit, digitise, adapt and publicly display any information that belongs to the Client (or information that the Client is authorised to use):
(a) as necessary to perform the Services; or
(b) to showcase the Works, the Draft Works or any element of the Project on its website, portfolio, social media pages or other public display in promoting Heng Design.
7.5 To the extent the Client elects to include any materials, information or Intellectual Property that belongs to a third party as a component of the Project (Third Party Works), or to the extent that Third Party Works are otherwise required to maintain the functionality or design of a Project, the Client will acquire, and if applicable, pay for, any licenses to such Third Party Works. Such licenses will include all rights necessary for Heng Design to modify or otherwise utilise the Third Party Works in a manner consistent with Heng Design’s obligations under these Terms. The Client hereby grants to Heng Design a royalty free, nonexclusive license to use, modify, reproduce and publicly display all such Third Party Works as necessary to perform the Services.

8. Warranties
8.1 The Client warrants to Heng Design that:
(a) the Client has copyright in, or a license to authorise Heng Design to reproduce all materials supplied by the Client to Heng Design for the purpose of the Project. The Client authorises Heng Design to reproduce all such works for the purposes of the Project; and
(b) it has the right to use copyright in the materials supplied and trademarks incorporated in a Project & any such use does not infringe the Intellectual Property rights of any person.
8.2 The Client indemnifies and keep indemnified Heng Design against any Liability incurred in any way connected with any breach of copyright, trademarks, Third Party works or Intellectual Property Rights in any materials supplied by the Client for the purpose of the Project.

9. Confidential Information
9.1 The Client must (and ensure that any of its employees, contractors and suppliers) keep confidential and must not use or permit any unauthorised use of any Confidential Information without the prior written consent of Heng Design.

10. General
10.1 Any notice given under these Terms must be in writing addressed to the relevant party in the Quote. Any notice may be sufficiently served by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
10.2 These Terms are not intended to create a partnership, joint venture or agency relationship between the parties.
10.3 If a provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
10.4 These Terms contains the entire understanding and agreement between the parties.
10.5 Any waiver by Heng Design must be express and in writing.
10.6 These Terms are governed by the laws of Victoria and the Client agrees to submit to the jurisdiction of appropriate court in that State.
10.7 Heng Design may assign any rights under these Terms to any third party. The Buyer may only assign any rights under these Terms with Heng Design’s prior written consent.