These Terms and Conditions (“TOC” or “Agreement”) are an agreement between benchstudios.com (“Bench Studios” or “us” or “our”) and you (“Client” or “you” or “your”). This Agreement sets forth the general terms and conditions of your use of any design, development, or media services made available by Bench Studios and of the benchstudios.com website (collectively, the “Services” or the “Project”). By using the Services, you agree to be bound by this Agreement. If you do not agree to abide by the terms of this Agreement, you are not authorised to use or access the Services provided by benchstudios.com.
Commencement of Work
The client agrees to provide written approval and acceptance of a provided quote, herein the “Proposal” before any work commences. Written approval represents the client’s acceptance of a quote provided and all the conditions and provisions listed in the TOC. The Proposal agreed to by the Client, and with work commenced on, is herein referred to as the “Project”. Where a deliverable is listed as “Optional”, the Client must also provide written approval for each additional deliverable they choose to include as part of the Project.
All invoices must be paid by the invoice due date, or where a due date is not specified within thirty (30) days of the invoice date. Details for payments are provided on Invoices issued to the Client. Any invoice that is outstanding after the due date or for more than thirty (30) days from the invoice date may incur a late fee of $300.00 for every thirty (30) days a client withholds paying an outstanding invoice.
Fees for Services
It is agreed that the fee for Services shall be the costs presented in the Proposal for each agreed upon deliverable, unless work undertaken exceeds work or hours outlined. From the commencement of work until final payment for the Project, Bench Studios will record all hours worked on the Project. If hours undertaken on a deliverable begin to exceed the cost estimate provided in the Proposal, the Client will be advised and a price and solution will be discussed and agreed upon in writing between the parties prior to the continuation of that deliverable.
Where the Proposal also includes Hosting Services, your acceptance of the Proposal constitutes an acceptance of all the terms of service for our Hosting Services and all policies and agreements referenced therein.
Excess work / corrections
Additions to the list of items, an additional deliverable, or tasks specified in the Proposal or changes in direction in content, after work has commenced, must be agreed in writing between the parties. Once agreed, additional work beyond the original scope of the Proposal will be charged at $120.00/hr. Signiﬁcant additions to the brief/new tasks prior to commencement of work will result in new quotes being provided.
Limit of Proposal
All Proposals are open to acceptance for a period of three (3) months from the date of issue, unless a different time limit is stated in writing.
Termination of the Project by either party must be made in writing no less than one (1) week before the due date of any deliverable. The Client will be liable for the full cost of any deliverable that is completed and provided to the Client as outlined in the Project. The Client will be liable for the calculated hours of any deliverable worked on but not yet completed based off records of hours worked and our standard operating rate of $100 per hour.
Termination by Bench Studios
Termination of the Project by Bench Studios can be made immediately under any of the following conditions:
- The Client becomes insolvent, bankrupt, mentally incapacitated, or convicted of a crime punishable by imprisonment.
- The Client becomes hostile, abusive, unresponsive to attempts at communication, not forthcoming in providing requested content, or otherwise unapproachable to Bench Studios to the point where it becomes unachievable to complete any remaining deliverable outlined in the project.
- The Client has not satisfactorily remedied a breach of any part of this Agreement within 30 days of being advised in writing of the breach.
- The Client undertakes activities that would be deemed illegal.
- The Client behaves in a way that Bench Studios considers may be contrary to prevailing community standards, or may be regarded by the public as unacceptable, or may be detrimental to the reputation of Bench Studios if an association with the Client is continued.
Archiving of Digital Files
Bench Studios will store digital data ﬁles for all work produced as part of the Project for a period no greater than 5 years.
Legal registration and trade marking of creative (e.g. logos) is the responsibility of the Client.
In order to provide specific Services, Bench Studios may recommend, approach, or engage with other companies or businesses, herein referred to as “Third-Party”.
- Third-Party Printing
Any print media developed as part of the Project will be printed through either the Client or a Third-Party printing company. Unless otherwise stated, cost estimates do not cover printing costs the Client may encounter from either party engaging with Third-Party printing companies. If required a Third-Party printing company will be agreed upon by both parties prior to the commencement of any printing. Bench Studios is not responsible or liable for any deliverable beyond the point of providing digital files to the Third-Party printing company in their preferred format and assessing and approving of any proofs they in turn send. Any reductions in quality or delays in delivery of any printed deliverable after digital files have been provided to the Third-Party printing company are explicitly the responsibility of the Third-Party printing company and not Bench Studios.
- Third-Party Website Hosting
Unless otherwise included in the Proposal, any websites developed as part of the Project will be hosted by a Third-Party hosting company. Unless otherwise stated, cost estimates do not include any ongoing costs the Client may encounter for website hosting, domain hosting, content management system (CMS) or plugin subscriptions, or other online or cloud-based services. Where website hosting is offered by Bench Studios is included as part of the Proposal, your acceptance of the Proposal constitutes acceptance of the terms of our Hosting Terms of Service.
- Third-Party Printing
Copyright for all creative generated on delivering the Project shall transfer to the Client from Bench Studios on receipt of final payment of the fee of service for the Project. Copyright of all design concepts, generated during the completion of the Project, submitted but not approved by the Client, shall remain with Bench Studios. Where the Project has been terminated by either party, copyright of any completed deliverable, and any creative generated as part of a not yet completed deliverable, shall be transferred to the Client from Bench Studios on payment of the fee of service issued at the termination of the Project. While no fee for service has been received in part or in total, all copyright for any creative generated or deliverable provided during the Project shall be with Bench Studios.
Use of Materials
The Client grants Bench Studios a non-exclusive, royalty-free, worldwide right and license to: (i) use, reproduce, publicly perform, publicly display, modify, translate, excerpt (in whole or in part), publish and distribute images or screenshots of designs and/or photographs of designed elements produced as part of the Project, for self-promotional purposes such as on websites, social media and portfolios, without further consent from the Client. The Client also agrees that this usage will not constitute a breach of copyright.
It is agreed that employees and subcontractors of Bench Studios shall not at any time either during the continuance of the work outlined or thereafter divulge any of the conﬁdential affairs of the Client or any of its clients or associated companies to anyone whatsoever without the previous consent in writing of the Client, except specific details where directly required in the course of providing the Services agreed to. It is understood that where required in delivering the Services agreed to, Bench Studios may be required to provide a Third-Party with details of the Client or files as part of providing a deliverable outlined in the Proposal, and that these scenarios will not constitute a breach of confidentiality. The contents of the Proposal, including the method and price, are conﬁdential to the Client and shall not be disclosed.
Limitation of Liability
IN NO EVENT WILL BENCH STUDIOS, ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR ENGAGEMENT IN OUR SERVICES, EVEN IF BENCH STUDIOS IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, BENCH STUDIOS’ LIABILITY TO YOU, OR ANY PARTY CLAIMING THROUGH YOU, FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO BENCH STUDIOS FOR THE SERVICES CONTAINED WITHIN THE PROPOSAL IN THE THREE (3) MONTHS PRIOR TO THE INITIAL ACTION GIVING RISE TO LIABILITY. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM HEREUNDER WILL NOT INCREASE THIS LIMIT.
You agree to indemnify, defend and hold harmless Bench Studios, our affiliates, and their respective officers, directors, employees and agents (each an “Indemnified Party” and, collectively, the “Indemnified Parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third party against any of the Indemnified Parties arising out of or relating to (i) your engagement of our Services, (ii) any breach or violation by you of this Agreement; or (iii) any acts or omissions by you. The terms of this section shall survive any termination of this Agreement.
Bench Studios and User are independent contractors and nothing contained in this Agreement places Bench Studios and User in the relationship of principal and agent, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
Governing Law; Jurisdiction
Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon an alleged tort, shall be governed by the substantive laws of the State of Victoria, Australia. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Bench Studios shall not be responsible for any damages your business may suffer. Bench Studios makes no warranties of any kind, expressed or implied for engaging with our Services. Bench Studios disclaims any warranty of merchantability or fitness for a particular purpose, including loss of data resulting from delays, delivery failures, wrong deliveries, and any and all service interruptions caused by Bench Studios or our employees.
Disclosure to Law Enforcement
In order to comply with, and subject to, any applicable laws, including without limitation the Australian Telecommunications Act 1997 and the Telecommunications (Interception) Act 1979, Bench Studios may disclose User information to law enforcement agencies without further consent or notification to the User upon lawful request from such agencies. We cooperate fully with law enforcement agencies.
This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby.
The headings herein are for convenience only and are not part of this Agreement.
Changes to the Agreement or the Services
- Bench Studios may modify, add, or delete portions of this Agreement at any time. If we have made significant changes to this Agreement, we will post a notice on the Bench Studios website for at least thirty (30) days after the changes are posted and will indicate at the bottom of this Agreement the date of the last revision. Any revisions to this Agreement will become effective when posted unless otherwise provided. You agree to any modification to this Agreement by continuing to engage in our Services after the effective date of any such modification.
If any provision or portion of any provision of this Agreement is found to be illegal, invalid or unenforceable by a court of competent jurisdiction, the remaining provisions or portions (unless otherwise specified) thereof shall remain in full force and effect.
No failure or delay by you or Bench Studios to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise of any right or remedy. No express waiver of, or assent to, any breach of or default in any term or condition of this Agreement by any party hereto shall constitute a waiver of, or an assent to, any succeeding breach of or default in the same or any other term or condition hereof.
You may not assign or transfer this Agreement or any of your rights or obligations hereunder, without the prior written consent of Bench Studios. Any attempted assignment in violation of this Agreement shall be null and void and of no force or effect whatsoever. Bench Studios may assign our rights and obligations under this Agreement, and may engage subcontractors or agents in performing our duties and exercising our rights hereunder, without the consent of User. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any Third-Party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
Last Updated : November 9th 2017