Standard Terms & Conditions

1 Definitions & Interpretation

1.1 In these Terms unless the context otherwise requires:
a Additional Services means any services provided to the Client by Design by Nature from time to time which are outside the scope of the Services set out in the Estimate.
b Additional Fees means fees payable by the Client to Design by Nature for any additional costs or work as set out in the Estimate.
c Acceptance means an Estimate that is accepted by the Client under clause 2.1 of the Terms. d Agreement means an Estimate that is accepted by Design by Nature under clause

2.2 of the Terms.
e Approval means a declaration by the Client of its acceptance of the Deliverables and Services provided by Design by Nature pursuant to an Agreement.
f Cancellation Fees means the greater of the amount equivalent to: i the Fees payable by the Client in respect of any Services provided or undertaken by Design by Nature up until the time of termination plus any amounts paid by Design by Nature to third persons (including any contractor) in connection with the Services; and ii the Deposit.
g Cash Sales means the provision of Services for which payment is made to Design by Nature by cash or other cleared funds in accordance with the Estimate, payment for which is due before the Supply Date. Where a Credit Account has not been completed all Estimates will be deemed to be Cash Sales.
h Client means any the client specified in the Estimate, and or any person who provides a Request to Design by Nature and includes such person’s agents, employees, executors, administrators, successors and permitted assigns.
i Client Details means the document provided by Design by Nature to the Client for completion, inclusive of Parts A, B C & D.
j Client Materials means any data, information, materials, drawings, designs, pictures or other content in any form provided by the Client to Design by Nature in connection with Design by Nature’s provision of the Services.
k Consequential Loss means: i indirect or consequential loss, loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss of opportunity; and ii loss which is beyond the normal measure of damages
l Confidential Information means all confidential information of a party which relates to the subject matter of an Agreement and includes confidential information relating to either party, its business or activities including know how, financial information, quotes, sales and supply details but does not include information which: i at the time of first disclosure is already in the public domain; ii after disclosure becomes part of the public domain otherwise than by disclosure in breach of these Terms; or iii the party to whom the information was disclosed can prove that the information was in its possession before the time of first disclosure by the other party.
m Consumer has the meaning provided to it in section 3 of the Australian Consumer Law.
n Credit Account means any credit account that Design by Nature extends to the Client from time to time, following completion of Part C & Part D of the Client Details form, or as advised by Design by Nature as being approved.
o Deliverables means any document, artwork, website or other item delivered or required to be delivered to the Client by Design by Nature under any Agreement.
p Deposit means the deposit specified in the Estimate.
q Developed IP means the Intellectual Property in a Deliverable created by Design by Nature as a direct result of Design by Nature providing the Services.
r Disbursements means any expenses specified in the Estimate or which Design by Nature has notified the Client of in advance.
s Estimate means a quote provided by Design by Nature to the Client in writing confirming the details of the Request and providing either: i an estimate of the fees payable by the Client under the Request; or ii the applicable hourly rates and an estimate of the number of hours Design by Nature may take to complete the Request.
t Fees means the fees and charges for the provision of the Services, as specified in the Estimate or as varied pursuant to clause 4 or by agreement between Design by Nature and the Client.
u Force Majeure Event means the occurrence of an event or circumstances beyond the reasonable control of the party affected by it including (without limitation) war (declared or undeclared) civil commotion, military action, or an act of sabotage, strike, lockout or industrial action, storm, tempest, fire, flood, earthquake or other natural calamity or an ongoing internet or telecommunications outage.
v Goods means goods and any products created as a result of Design by Nature providing the Services to the Client supplied or to be supplied by Design by Nature to a Client from time to time as set out in the Estimate.
w GST means any goods and services tax imposed under the GST Act.
x GST Act means A New Tax System (Goods and Services Tax) Act as amended from time to time.
y Intellectual Property means all registered and unregistered rights in respect of patents, copyright, designs, trade marks, trade secrets, know-how, confidential information and all other intellectual property.
z Hourly Rates means the hourly rates to be charged by Design by Nature for providing the Services as specified in the Estimate or, if not so specified, the prevailing hourly rates, as varied pursuant to clauses 4 or 6.4 or by agreement between Design by Nature and the Client. aa Loss means any delay, loss, liability, damage, expense or cost whatsoever and includes (without limitation) Consequential Loss. ab Non PDH Goods or Services means goods or services which, for the purposes of the Australian Consumer Law, are not of a kind ordinarily acquired for personal, domestic or household use or consumption. ac Request means any order or request (including e-mail, phone or in person) for Goods and/or Services from a Client to Design by Nature. ae Services means services specified in the Estimate and any Additional Services. af Terms means these terms and conditions. ag Timeframes means any estimated timeframes specified in the Estimate, or provided with the Estimate, for the completion of the Deliverables or any part of it, as amended from time to time. ah Supply Date means that date on which a supply of Goods and/or Services to the Client by Design by Nature under any Agreement is made.

1.2 In these Terms, the singular includes the plural and vice versa, a reference to a “person” includes a company, partnership or trust and a reference to a statute, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them.

2 How a Contract with Design by Nature is Formed

2.1 Each Estimate provided by Design by Nature to the Client amounts to an invitation for the Client to make an offer to Design by Nature on the terms set out in the Estimate. The Client may make an offer to Design by Nature by signing the Estimate, advising Design by Nature in writing (by email), or by telephone or in person. (Acceptance).

2.2 An offer is accepted by Design by Nature and an agreement will be formed between the parties on the terms set out in the Estimate and these Terms if Design by Nature:
a notifies the Client of its acceptance; or
b begins providing the Services.
c Each accepted Estimate constitutes a separate agreement between Design by Nature and the Client on these Terms. (Agreement).

2.3 For the avoidance of doubt, Design by Nature may refuse to provide Goods and/or Services to the Client (whether as Cash Sales or Credit Payment) and is not required to give reasons for its refusal.

3 Services

3.1 The Services which Design by Nature will provide to the Client will comprise of:
a the Services specified in the Estimate; and.
b any Additional Services which Design by Nature provides to the Client from time to time.

4 Variations

4.1 If the Client wishes to vary an Agreement, it must notify Design by Nature in writing of the variation which the Client wishes be made to the Agreement.

4.2 If Design by Nature is willing to vary the Agreement as proposed by the Client, Design by Nature will notify the Client in writing of any changes to the Fees or relevant Timeframes as a result of undertaking that variation (Design by Nature’s Variation Offer). Unless the Client notifies Design by Nature that it does not accept Design by Nature’s Variation Offer within 5 days of receiving this notice, Design by Nature’s Variation Offer will be deemed to be agreed between the parties immediately upon the expiry of the above period and the Agreement will be varied accordingly.

5 Timeframes

Design by Nature will use reasonable endeavours to provide the Services to the Client in accordance with the Timeframes. However, the Client agrees that the Timeframes are an estimate only and Design by Nature will not be liable for any Loss incurred by the Client as a result of any delay or failure to complete the Services in accordance with the Timeframes.

6 Fees & Payment

6.1 The Client agrees to pay to Design by Nature the Fees, Additional Fees and any Disbursements which Design by Nature invoices the Client for.

6.2 Unless Design by Nature gives its prior written consent or the Client has a Credit Account, the Services are provided as Cash Sales:
a where the Services are provided as Cash Sales, Design by Nature will invoice the Client in accordance with the terms specified in the Estimate or otherwise agreed between the parties, if any;
b where no specific terms are outlined in the Estimate, final payment is due before the Supply Date.

6.3 If the Services are provided pursuant to a Credit Account, the Client must pay for the Services in accordance with the terms of the Credit Account:
a where the Services are provided as a Credit Account Design by Nature will invoice the Client, in accordance with the terms specified in the Estimate, if any;
b where no specific terms are outlined in the Estimate, final payment is due within [14] days after the Supply Date (subject to the issuing of an invoice by Design by Nature).

6.4 The Fees set out in the Estimate are an estimate only. This estimate is based on Design by Nature’s current understanding of the circumstances and scope of work required, and is therefore not a quote or cap binding on Design by Nature. Design by Nature may vary the Hourly Rates and will notify the Client within a reasonable time if there is a change to any Hourly Rates.

6.5 Notwithstanding the other provisions of this clause 6, Design by Nature reserves the right at any time to require immediate payment for all Goods and/or Services supplied. Payment for those Goods and/or Services will be due immediately upon receipt by the Client of a notice from Design by Nature that it requires immediate payment.

7 Failure to Pay

7.1 If the Client fails to pay any amounts due to Design by Nature under any Agreement by the due date for payment then (without prejudice to Design by Nature’s other rights in respect of that failure):
a Design by Nature may charge the Client interest on all amounts overdue at the interest rate fixed from time to time pursuant to section 2 of the Penalty Interest Rate Act 1983 (Vic), which interest will accrue and be chargeable from the first day on which such amounts become overdue until Design by Nature receives payment of all such amounts (including all interest) by way of cleared funds;
b the Client must pay all costs and expenses incurred by Design by Nature in relation to the exercise and enforcement of its rights under clause 6 and this clause 7 including any legal costs and the Client indemnifies Design by Nature for  any such costs and expenses;
c Design by Nature may suspend its provision of any or all Services (including Services provided under a separate Agreement) until such time as the outstanding amount is paid in full (together with any interest);
d Design by Nature may withhold the provision to the Client of any Deliverables; and
e Design by Nature will not be liable for any Loss suffered by the Client as a result of Design by Nature exercising its rights under this clause

7. 8 Responsibilities

8.1 The Client will be responsible for:
a completing all tasks or items requested by Design by Nature as being the responsibility of the Client;
b providing to Design by Nature all material reasonably requested by Design by Nature in order for Design by Nature to provide the Services;
c where requested by Design by Nature, providing approvals or signing the Approval as soon as practicable;
d providing Design by Nature and its subcontractors with access to the Client’s premises, employees, materials or computer systems reasonably required by Design by Nature in connection with its provision of the Services; and
e providing Design by Nature with all other assistance reasonably requested by Design by Nature from time to time.

8.2 To provide you with the services you require, we need you to give us clear and complete instructions. Our work does not extend beyond the scope of the work we have agreed with you. In providing our advice we rely on all instructions and information (both written and oral) provided by you. Often, we need to make assumptions in order to provide our advice. Please review carefully any assumptions, and let us know immediately if any assumptions are incorrect or inappropriate, or if you think we have misunderstood your instructions.

9 Approval

The Client acknowledges that before signing an Approval, it must carefully review the relevant Services and Deliverables provided. The Client acknowledges that Design by Nature will not be responsible for any errors in or other issues with Deliverables or Services which it has signed off on under an Approval.

10 Format of Deliverables

10.1 Design by Nature will provide the Deliverables to the Client in such format as Design by Nature considers appropriate from time to time.

10.2 Design by Nature may:
a retain a copy of any Deliverables provided to the Client in electronic form; and
b destroy any Deliverables after five years from the date of the relevant Approval, without any notice to the Client.

11 Concepts

11.1 If Design by Nature makes any pitch or proposal or presents any concept to the Client which the Client rejects or elects not to proceed with, the Client acknowledges that it:
a must keep confidential and not use or reproduce any ideas or concepts from that pitch, proposal or concept;
b will not have any rights to the Intellectual Property in respect of such pitch, proposal or concept; and
c will not have any right to have access to the documents or material created by Design by Nature in respect of the pitch, proposal or concept.

12 Intellectual Property

12.1 Subject to clause

12.2, the Client agrees that Design by Nature owns all Developed IP until full payment of the Fees, Additional Fees and any Disbursements.

12.2 Upon the Client paying the Fees under an Agreement in full
a Design by Nature assigns the Developed IP in respect of that Agreement to the Client;
b Client grants a non-exclusive, perpetual, royalty free licence to Design by Nature to use the Developed IP for marketing and promotional purposes.
c The Client agrees that it will not vary or amend the Developed IP in any way.

12.3 To the extent necessary for Design by Nature to be able to provide the Services to the Client, the Client grants Design by Nature a non-exclusive licence (with the right to sub-licence) to use and reproduce all Intellectual Property in the Client Materials.

12.4 Subject to clause 14, Design by Nature does not warrant or represent that the Goods and Services (including any Developed IP) provided under an Agreement do not infringe the Intellectual Property of a third party.

13 Confidentiality

13.1 A party must not, without the prior written consent of the other party, disclose the other party’s Confidential Information to a third party

13.2 Notwithstanding clause 13.1, Design by Nature may use or disclose any Confidential Information of the Client in discharging its obligations in supplying Services to the Client and including divulging Confidential Information to contractors who may be engaged by Design by Nature.

14 No Warranty & Limitation of Liability

14.1 Nothing in these Terms should be interpreted as attempting to exclude, restrict or modify the Client’s rights to make a claim in respect of any consumer guarantees or under any other provision of the Australian Consumer Law.

14.2 If the Client is a Consumer and the goods and services supplied by Design by Nature are Non PDH Goods or Services, then Design by Nature’s liability to the Client in relation to any claim under the Australian Consumer Law is limited, at Design by Nature’s option to:
a in the case of goods: i the replacement of the goods or the supply of equivalent goods; ii the repair of the goods; iii the payment of the cost of replacing the goods or of acquiring equivalent goods; and
b in the case of services: i the supplying of the relevant services again; or ii the payment of the cost of having the relevant services supplied again.

14.3 Subject to clauses 14.1 and 14.2 and to the extent permitted by law, Design by Nature excludes all liability for any Loss incurred by the Client arising out of or in connection with an Agreement. This clause applies even if Design by Nature knew or ought to have known that it was possible or foreseeable that the Client would incur such Loss.

14.4 Subject to clauses 14.1 and 14.2 and to the extent permitted by law, Design by Nature does not warrant, and is not liable for, the success or failure of any strategy implemented by the Client on reliance of any advice provided by Design by Nature and the Client acknowledges that there are many known and unknown risks, uncertainties and assumptions which may impact upon the success or otherwise of the Client’s business.

14.5 Apart from any warranties expressly set out in these Terms and subject to this clause 14, Design by Nature expressly excludes all warranties whether implied, written, oral, collateral or statutory, except any implied warranty, term or condition that would cause this clause 14.5 to be void or would cause a statutory provision to be contravened if excluded.

15 Return of Documents

Design by Nature will return any documents and property and other materials provided and/or obtained from the Client (excluding any copies of such documents and materials produced by Design by Nature at its own expense), upon demand by the Client or without demand as soon as such documents and other materials or any of them are no longer required by Design by Nature for the performance of the Services after payment of the Fees has been made in accordance with clause 6.

16 Termination or Suspension

16.1 The Client may terminate an Agreement at any time by providing 14 days written notice to Design by Nature.

16.2 Design by Nature may, at its discretion, suspend or terminate any Agreement effective immediately:
a by providing notice in writing to the Client; or
b if at any time the Client does any of the following: i breaches or fails to comply with any of the provisions of these Terms or the terms of its Credit Account; ii has reached the credit limit specified under its Credit Account; iii engages in conduct which may reasonably bring the reputation of Design by Nature into disrepute; or iv becomes bankrupt or goes into administration or liquidation or makes composition or arrangement with its creditors generally or refuses to co-operate and respond to contact by Design by Nature.

16.3 If an Agreement is terminated or suspended for any reason, the Client is required to pay to Design by Nature the Cancellation Fees.

16.4 Termination or suspension of an Agreement will not prejudice any rights or remedies already accrued to under, or in respect of any breach of an Agreement prior to the termination.

17 Indemnity

The Client indemnifies Design by Nature and its officers, employees and agents for any Loss arising directly or indirectly from, and any costs and expenses (including legal expenses on a full indemnity basis) incurred in connection with, any failure by the Client to comply with these Terms or any misuse of any Services including, but not limited to any breach by the Client of privacy, spam or other relevant legislation or regulations by the Client.

18 Force Majeure

If a party is prevented, hindered or delayed from performing its obligations under an Agreement by a Force Majeure Event, then as long as that situation continues, that party will be excused from performance of the obligation to the extent it is so prevented, hindered or delayed, and the time for performance of the obligation will be extended accordingly. If a party is affected by a Force Majeure Event it will immediately give the other party a notice of its occurrence and its effect or likely effect, and use all reasonable endeavours to minimise the effect of the Force Majeure Event and to bring it to an end. If the delay or failure to perform continues for more than 45 days, either party may terminate the Agreement by providing written notice of termination to the other party. This clause 18 does not relieve or suspend a party’s obligation to pay money to the other party.

19 Inconsistencies

Where there are any inconsistencies between the terms of these Terms and the Estimate, these Terms will prevail to the extent of the inconsistency.

20 Amendment & Acceptance of Terms

20.1 Design by Nature may amend these Terms from time to time, but those amendments will not take effect until Design by Nature has notified the Client in writing (inclusive of email) of those amendments.

20.2 Any Requests made to Design by Nature after the Client has been notified of amendments to the Terms will be deemed to be offers to acquire Goods and/or Services upon the amended Terms.

20.3 Once an Estimate is accepted by both Design by Nature and the Client, pursuant to clause 2.1 and 2.2 the Client and Design by Nature become bound by these Terms.

21 Assignment & Sub Contracting

21.1 Neither party may assign its rights or obligations under these Terms without the prior written consent of the other party.

21.2 Notwithstanding clause 21.1, Design by Nature may subcontract the performance of its obligations under these Terms or any part thereof without any requirement to obtain the Client’s consent.

22 Severance

In the event of the invalidity of any provision of these Terms that provision is to be severed from the valid provisions of these Terms and the invalidity of that provision will not effect the application of the remaining parts and provisions.

23 Goods & Services Tax

Unless expressly stated otherwise, all amounts specified in these terms and conditions have been calculated without regard to GST and do not include GST. Design by Nature may recover GST from the Client as an additional amount payable in respect of any fees or other sums payable by the Client under these Terms.

24 Governing Law

These Terms are governed by and must be construed in accordance with the laws of Victoria, and each party irrevocably submits to the jurisdiction of the courts in that State.