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.
Deposit and Commencement of Work
The Client agrees to provide written approval and acceptance of a provided quote, scope of work, or engagement letter; herein the “Proposal”; along with payment of 50% deposit before any work commences. Written approval represents the Client’s acceptance of a quote provided and all the conditions and provisions listed in the T&C. 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. A schedule of progress payments may be agreed in writing between the parties for major projects over $10,000 prior to the commencement of work. 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 $500.00 for every thirty (30) days a Client withholds paying an outstanding invoice.
Fees for Services
The fees for service are outlined in the investment section of the proposal according to each milestone of the proposal. Fees for service are required to be paid before the next milestone will be commenced. Any costs stated in the proposal are GST exclusive unless otherwise stated. If the client or Bench Studios terminates the project before the completion of the current milestone but when it has been over 14 days since the last milestone was completed (as expressed in writing to the client), the client will be required to pay the investment cost that would otherwise be required for the completion of the current milestone. Only the deposit is refundable and only within the conditions specified under the Terms and Conditions section labelled “Termination”.
Monthly fees of service
Where fees for services are listed as per month in the Proposal, invoices will be provided and payments due at the end of each month. Monthly fees for service are for the concluding month and are listed on each invoice. Monthly fees for service are ongoing until advised by the Client in writing. After advised by the Client, termination of ongoing services included in the Project will be at the end of that month, with a final invoice issued and payment required for that month. Clients also have the ability to pay for monthly fees either in six (6) month or twelve (12) month instalments. Where the client advises the termination of ongoing services within an instalment period, the remainder will be calculated from the start of the next month after the advise was given until the end of the instalment period, and a refund given.
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 or modifications to the list of deliverables specified in the Proposal or changes in overall direction in content, after work has commenced on the Project, will cause work on the Project to cease until such time that both parties agree to the new scope of the project in writing and on any additional costs that will be incurred.
Delays in delivery
Bench Studios will not be held liable for any delays in delivery of milestones within the proposal. Time frames for delivery are given as estimates and should not be interpreted as hard deadlines. Where deadlines are specifically listed, Bench Studios is not responsible for any delay in meeting them where actions by the client have caused the delay, such as delay in sign-off or payment.
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 week before the due date of any milestone. Deposits are only refundable on termination of a project up to the less of:
- 14 days after the initial date of acceptance of the provided quote, or
- 3 days before any date specified in the provided Proposal where a representative of Bench Studios would be physically in attendance to provide services.
In all other circumstances, the deposit will not be refundable. Any additional fees for service are not refundable regardless of the reasons for the termination of the project.
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 communication, not forthcoming in providing requested content, absent from an organised meeting or event where their attendance was expected, or otherwise unapproachable to Bench Studios to the point where it becomes unachievable to complete the milestones as outlined in the proposal.
- The Client has not satisfactorily remedied a breach of any part of these terms and conditions within 30 days of being advised in writing of the breach.
- The Client undertakes activities that would be deemed illegal.
- The actual work required by Bench Studios differs from the initial scope of work, or the expected methodology differs from the process outlined in the proposal, or the client’s ideas of design or functionality contrast with Bench Studios’ interpretation of the brief as outlined in the proposal. In such a case Bench Studios may assess whether it is still practical and appropriate for Bench Studios to undertake the work.
- 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.
- Bench Studios personnel on the Project become mentally incapacitated or otherwise deceased.
Archiving of Digital Files
Bench Studios will store digital data ﬁles for all work produced for a period no greater than five (5) years, with the exception of raw footage which will be held for sixty (60) days after the completion of a project.
The client is responsible for all text content to appear as part of any deliverable listed in this quote, including proofreading to assess spelling and grammar. The client will have an opportunity to view any final deliverable before it either goes live or goes to print. The client agrees not to hold Bench Studios liable for any spelling, grammar, or other content mistakes at any point of the project.
It is agreed that Bench Studios may, at its discretion, involve subcontractors as part of the project, without requiring to disclose to the client whether there are subcontractors involved and if so whom. Any subcontractors engaged by Bench Studios will be held to these same terms and conditions in the delivering of services, the maintaining of confidentiality, and the dispensing of copyright claims once payment is received.
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 a “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 Resources
Where the client is insistent on the use of a specific third-party resource (such as a stock photo or stock footage) the client will be liable for the cost of that resource as included in the final fee of service for the project.
- Third-Party Printing
Expertise in the Creative Field
Engagement with Bench Studios is a recognition of our expertise in our field, trust in our creative process, and recognition of our understanding of communication and engagement especially as it pertains to the desired outcomes of the Project. As such, throughout the course of the Project and engagement with the client and so long as it is in the best interests of achieving the outcomes set out in the Proposal, Bench Studios retains the right to veto any requests by the client that may, in whole or in part, influence any design or any part of the development or the development process. This includes but is not limited to any request around design, layout, colour, fonts or text, positioning, functionality, the size of any element or other stylistic choices, or any request that may influence the end user’s experience of any deliverable of a milestone.
Unless otherwise specified in this proposal, the copyright for the code of any websites developed as part of the project remain with Bench Studios throughout the project and beyond the conclusion and final payment for the project. The client maintains any copyright on any content provided to Bench Studios either during or after the conclusion of the project. On final payment for the fee of services, the client shall be issued an ongoing worldwide license granting the rights to use the website programmed code to display their own content online in the manner outlined in this proposal. These rights allow for modification by the client and third-parties they may engage, the changing of content, but does not include the right to resell any part of the provided website programmed code in whole or in part or removal of the attribution to Bench Studios either during or after the project is completed. It is agreed by the client that any website created will include, at the bottom of each web page next to any other agency attributions, the phrase “site design by Bench Studios” or “site created by Bench Studios” with a hyperlink to the Bench Studios website. Additionally the client agrees that Bench Studios is to have an ongoing administrator user account called ‘bench’ as part of any user management system Bench Studios sets up, in order to provide future support and maintain rights over the code beyond the end of the project. It is agreed that the requirements of attribution and an admin account continue beyond the end of the project and that removal of either will void the license granted to the client by Bench Studios for the website and may result in the website being deactivated to the public until such time that the client and Bench Studios can come to a resolution. The license to use a website programmed code may be rescinded if the client violates the conditions outlined in this section of the terms and conditions of this proposal, including if the client attempts to resell the website programmed code in full or in part or fails to pay any issued invoice associated with the development or hosting of any website developed by Bench Studios. At no time does the client obtain the full ownership and copyright over the website programmed code beyond what is expressed in these conditions, unless explicitly stated and agreed to in writing by both parties.
Unless otherwise agreed upon, 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 hosting is offered by Bench Studios, it is understood that this service is provided by a third-party hosting company through Bench Studios. It is agreed that as part of engaging with a third-party hosting company, there is the potential for website outages to occur that are outside of the control of Bench Studios. Unless otherwise arranged, Bench Studios can work alongside the hosting company to work towards restoring the website to full working order where possible, with hours to be costed to the client at a rate of $150 per hour. In the case of prolonged downtime where the hosting company is at fault, Bench Studios is not liable. Payment of the project in full must be made before the website is transferred to the final website hosting location and is made live. Where clients fail to pay invoices for either website design, development, or website hosting, by the invoice due date, or where a due date is not specified within thirty (30) days of the invoice date, or where the client breaches any part of these terms and conditions and does not rectify it, Bench Studios may at its discretion choose to deactivate, hide, or otherwise temporarily suspend the website from being live and available until such time that the client resolves the outstanding payments that are due or breaches. Failure to resolve may result in the rescinding of any website licenses granted to the client by Bench Studios.
Unless explicitly stated in this quote, Bench Studios is under no obligation to utilise any plugins, programming languages, templates, or third-party products or services requested by the client in the course of development or deployment of any website as part of the project. Where a client requests for the specific use or integration of any of the above, and Bench Studios accepts, the client may be liable for any additional costs incurred as part of that use or integration.
Michael Debevec, Bench Studios, and subcontractors retain the nonexclusive, perpetual and worldwide right to display, reproduce, and distribute any designs or media created throughout the course of the project in their portfolios and websites, social media channels, third-party trade publications, awards or exhibits, solely for the purpose of promoting or exemplifying the creator’s work, and the right to be credited with copyright ownership and authorship of the designs in connection with such use. The client agrees that usage of any designs or media content in the manners described above will not constitute a breach of the client’s copyright granted to them on final payment of the project, and will require no consent from the client for its use as described above.
Unless otherwise specified within this proposal, copyright for all deliverables of a project shall transfer to the client from Bench Studios on receipt of final payment of the fee of service for the project, with the exception of any website programmed code. Where the project has been terminated by either party, copyright of any completed deliverable provided as part of a completed milestone shall be transferred to the client from Bench Studios on payment of all outstanding fees of service issued including at the termination of the project, with exception to any website programmed code unless otherwise agreed to in writing by both parties at the termination of the project. While there are still outstanding fees for service, all copyright for any creative generated or deliverable provided during the project shall be with Bench Studios and the client will have no claim to ownership of any content developed by Bench Studios.
Copyright on Raw Footage
Raw footage is any direct-from-camera digital video or image files captured by Bench Studios during the course of the project. Bench Studios will own the copyright of all raw footage during the course of the project and retains all copyright on the conclusion and payment of the project. Bench Studios will have the exclusive right to raw footage to make reproductions for, including but not limited to, marketing materials, portfolio entries, sample products, editorial submissions and use, or for display within or on Bench Studios’ website and/or other social pages. Where raw footage may feature talent or individuals, the client affirms the existence of a signed permission to publish document, and its extension to the reproductions listed above. Where raw footage does not contain any talent or individuals, Bench Studios retains the right to sell or license the raw footage. On final payment for the fee of services, the client shall be granted the ongoing worldwide rights by Bench Studios to receive, use, display, reproduce, and modify any raw footage from the project, but not including the right to selling or licensing raw footage. It is the responsibility of the client to request raw footage on conclusion of the project, as after sixty (60) days it is at Bench Studios’ discretion to delete any and all archived raw footage.
Bench Studios is not required to provide any source material or development files created by Bench Studios or their subcontractors during the course of the project. If source files are agreed to be provided in writing, Bench Studios will not conduct additional formatting to conform the files to a specified format or framework, nor does Bench Studios provide any warranty that files will be readable or usable by the client’s software.
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.
By engaging with the services of Bench Studios you as the client are agreeing that under no circumstances shall Bench Studios, its subcontractors, or the trustee for the Debevec Family Trust, be liable for direct, indirect, incidental, consequential, special, punitive, exemplary, or any other damages arising out of your engagement with the services offered in this quote. Additionally, Bench Studios is not liable for damages in connection with:
- Any failure of performance, error, omission, denial of service, attack, interruption, deletion, defect, delay in operation or transmission, computer virus or line or system failure;
- Loss of revenue, anticipated profits, business, savings, goodwill or data; and
- Third-party theft of, destruction of, unauthorised access to, alteration of, or use of your information or property, regardless of our negligence, gross negligence, failure of an essential purpose and whether such liability arises in negligence, contract, tort, or any other theory of legal liability.
- Technical malfunctions or failures resulting to loss or damage of digital collateral including captured footage.
The foregoing applies even if Bench Studios has been advised of the possibility of or could have foreseen the damages. In those States and Territories that do not allow the exclusion or limitation of liability for the damages, Bench Studios liability is limited to the fullest possible extent permitted by law. In no event shall any cumulative liability to you exceed $100. In no event will Bench Studios be liable to any party for any type of direct, indirect, special, incidental, or consequential damages for any use of or reliance on services delivered through Bench Studios, its subcontractors, or the trustee for the Debevec Family Trust.
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.
Bench Studios make no warranty or guarantee as to the accuracy of any content presented as part of or as a result of delivering the services described in the Proposal. The client shall indemnify and hold Bench Studios harmless from and against any and all losses, damages, settlements, liabilities, costs, charges, assessments and expenses, as well as third party claims and causes of action, including, without limitation, attorneys’ fees, arising out of any breach by the client of any of these Terms and Conditions. Where Bench Studios is capturing footage, Bench Studios makes no guarantee and is under no obligation to capture any specific moment or pose or person(s) during filming. Bench Studios is not responsible for compromised coverage due to causes beyond the control including but not limited to obtrusive guests, lateness of the client or organised talent/guests, weather conditions, schedule complications, incorrect addresses provided to Bench Studios, restrictions of the locations. Unless specified in the Proposal, Bench Studios is not responsible for backgrounds or lighting conditions which may negatively impact or restrict the capturing of footage; for missed coverage of any part of a film shoot or filming on location; or for failure to deliver footage including any specific individuals or any specific objects unless directly specified in this scope of work. The client agrees to indemnify and hold faultless Bench Studios, its employees and subcontractors, for any and all personal injury which may occur during the course of the capturing of any footage by Bench Studios. The terms of this section shall survive any termination of this Agreement.
Bench Studios, their subcontractors, and the client are independent contractors and nothing contained in this Agreement places any parties in the relationship of principal and agent, partners or joint venturers. No 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 another party, or to obligate or bind another 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 : January 11th 2023