Terms and Conditions
Conditions of Provision of Goods & Services
Purchase of goods and services from ESG Media Pty Ltd (trading as and hence forth referred to as ‘Code Brewery’) are subject to the following terms and conditions. By purchasing or receiving goods or services from Code Brewery, you accept the following terms and conditions, without limitation or qualification.
In these conditions:
“Conditions” means these Conditions of Provision of Goods and Services;
“Customer” means a person, firm or corporation, jointly and severally if there is more than one, acquiring goods or services from Code Brewery;
“Goods” means goods supplied by Code Brewery to the Customer;
“GPO” means the central Post Office in the nearest Capital City;
“Services” means services supplied by Code Brewery to the Customer; and
“Code Brewery” means ESG Media Pty Ltd ABN 55 160 870 057
2. Basis of Contract
2.1 Unless otherwise agreed by Code Brewery in writing, these conditions apply exclusively to every contract for the sale or other supply of goods or services by Code Brewery to the Customer. These Conditions cannot be varied or supplanted by any other conditions without the prior written consent of Code Brewery.
2.2 Any written quotation provided by Code Brewery to the Customer concerning the proposed supply of goods or services is valid for 7 days and is an invitation only to the Customer to place an order based upon that quotation. The Conditions may include additional terms in Code Brewery’s quotation, which are not inconsistent with the Conditions.
3. Charges and Payment
3.1 Payment for goods and services must be made by EFT, cash or cheque prior to the provision of goods or services, upon receipt of invoice unless the Customer has a credit account with Code Brewery.
3.2 All Code Brewery work is charged in fifteen minute units. Any part thereof is chargeable at the same rate as fifteen minutes.
4. Payment Default
4.1 If the Customer defaults in payment by the due date of any amount payable to Code Brewery, or if any cheque drawn by the Customer is dishonoured, then all money which would become payable by the Customer to Code Brewery at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Code Brewery may, without prejudice to any other remedy available to it:-
- charge the Customer interest on any sum due at the Reserve Bank’s cash target rate as at the date of default plus 4 per cent, for the period from the due date until the date of payment in full;
- charge the Customer for all expenses and costs (including legal costs on a solicitor/own client basis and dishonoured cheque fees) incurred by it resulting from the default and in taking whatever action it deems appropriate to recover any sum due;
- cease or suspend for such period as Code Brewery thinks fit, the supply of any further goods or services to the Customer;
- by notice in writing to the Customer, terminate any contract with the Customer remaining not fully performed by Code Brewery; without affecting the accrued rights of Code Brewery under any contract.
- limit the access to network resources of users at the Customer’s premises
- temporarily change any passwords on the Customer’s network
- limit or disable access to any campaigns, projects or solutions developed or worked on by Code Brewery.
4.2 Action under clauses 4.1(c) and 4.1(d) may also be taken, at the option of Code Brewery where the Customer is:
- an individual and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
- a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer (except for the purpose of a solvent reconstruction, notice in writing of which is given to Code Brewery).
5. Passing of Property
5.1 Until full payment in cleared funds is received by Code Brewery under a contract:-
- title and property in all goods supplied under that contract remain (as between Code Brewery and the Customer) vested in Code Brewery and do not pass to the Customer;
- the Customer holds the goods as trustee for Code Brewery;
- the Customer must keep the goods separate from its own goods and those of others and maintain the labelling and packaging of the goods; the Customer is required to hold the proceeds of any sale of the goods on trust for Code Brewery in a separate account however failure to do so will not affect the Customer’s obligation to deal with the proceeds as trustee;
- Code Brewery may without notice, enter any premises where it suspects the goods may be and remove them, notwithstanding that they may have been attached to other goods not the property of Code Brewery, and for this purpose the Customer irrevocably licenses Code Brewery to enter such premises and take such action and also indemnifies Code Brewery from and against all costs, claims, demands or actions by any party arising from such action.
6. Risk and Insurance
All risks associated with the goods will pass to the Customer immediately upon delivery of the goods to the premises nominated by the Customer, notwithstanding that title may not have by then passed to the Customer. The Customer must take out all usual insurances in respect of such risks as a prudent business person in the Customer’s position would take out.
7. Performance of Contract
Any period or date for delivery of goods or provision of services stated by Code Brewery is intended as an estimate only and is not a contractual commitment. Code Brewery will use all commercially reasonable endeavours to meet any estimated dates for delivery of the goods or completion of the services.
8. Code Brewery Warranties
8.1 Subject to this clause 8 and clause 9 below, Code Brewery warrants that all goods and services supplied by it shall be free from defects in materials and workmanship for a period of 30 days from the date of delivery. In the case of software the date of delivery shall be deemed to be the date of first successful installation on computers used by the Customer.
8.2 The Customer’s sole remedy in the case of non-compliance with the above warranty is for Code Brewery to attempt to diagnose and rectify the relevant problem at its cost. If Code Brewery is not able to diagnose the cause of any hardware or software problem, then no charge will apply to the Customer. Code Brewery does not warrant that it will be able to rectify all problems which it diagnoses.
8.3 This warranty does not apply in circumstances where:
- goods or services are not defective;
- the goods were used or services required for a purpose other than for which they were intended;
- the goods were repaired, modified or altered by any person other than Code Brewery;
- the defect has arisen due to misuse, neglect or accident;
- the defect has arisen due to normal wear and tear on the goods;
- the goods have not been stored or maintained as recommended by Code Brewery or the manufacturer; or
- the Customer is in breach of the Conditions.
9.1 Except as specifically set out herein, any term, condition or warranty in respect of the quality, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.
9.2 Replacement or repair of the goods or resupply of the services is the absolute limit of Code Brewery’s liability howsoever arising under or in connection with the description, quality, condition, performance, assembly, manufacture, design, merchantability or fitness for purpose of the goods or services or alternatively the sale, use of, storage or any other dealings with the goods or services by the Customer or any third party.
9.3 Code Brewery is not liable for any program or data loss or damage by any Customer arising directly or indirectly from or in connection with the provision of the goods or services.
9.4 Any replacement of parts under warranty will be carried out at the premises nominated by Code Brewery. The cost and risk of transport of any defective part to the nominated premises is the responsibility of the Customer.
9.5 Code Brewery is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party.
9.6 Code Brewery will not be liable for any loss or damage suffered by the Customer or any person claiming through the Customer where Code Brewery has failed to meet any delivery date or cancels or suspends the supply of goods or services.
9.7 Nothing in the Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be legally excluded, restricted or modified.
10. Intellectual Property
10.1 Code Brewery will not be responsible to the Customer or any third party for any breach of any software licence in respect of software provided to Code Brewery by the Customer to be installed on a Customer’s computer.
10.2 The Customer hereby indemnifies Code Brewery against any claim, loss, damage, costs, harm or other expense whatsoever arising either directly or indirectly as a result of or in connection with Code Brewery installing software at the request of the Customer.
10.3 The Customer acknowledges that, as between it and Code Brewery, any and all Intellectual Property rights created, developed, subsisting or used in or in connection with the Software are and shall remain the sole property of Code Brewery. The Customer shall not during or at any time after the completion, expiry or termination of this agreement in any way question or dispute the ownership by the Developer thereof.
10.4 Code Brewery grants to the Customer, upon Acceptance of Software, and subject to the payment in full of the Development Cost, a non-exclusive, perpetual licence to use the Software for its own internal business operations purposes only. Such licence does not include the right to sub-license others to use the Software, or to commercialise the Software in any way or to reproduce or copy the Software except for legitimate back-up purposes.
11. Cancellation and Deposits
11.1 If, through circumstances beyond the control of Code Brewery, Code Brewery is unable to effect delivery or provision of goods or services, then Code Brewery may cancel the Customer’s order (even if it has already been accepted) by notice in writing to the Customer, upon which appropriate compensation will be supplied to the client, based on the discretion of Code Brewery.
11.2 Once the contract is signed (in the form of the formal proposal) and the deposit is paid, if the client cancels the project for any reason, the deposit shall be forfeit. This is up to the discretion of Code Brewery. On special request, Code Brewery may hold accounts in credit to the value of deposits paid for future work.
12. Website and Software Development Specifics
Any changes to scope of works following signing of a proposal will incur additional charges. Such charges will be approved by The Customer before commencement of work.
Changes to scope will affect timeline, and in these cases Code Brewery cannot be liable for delivery delays.
When Code Brewery have been engaged for design, we will require brand guidelines, imagery and copy to be delivered to us before commencement. One revision will be included. Further revisions will be charged at $160 plus GST per hour.
Cross-browser testing will include the latest versions of Firefox, Safari, Chrome and MS Edge on PC and Mac equivalents. If other legacy browsers are required for inclusion in testing, these must be specified before commencement of development as these systems may impact cost and delivery times.
Code Brewery cannot be held responsible from a liability or cost perspective for any changes to external APIs. This includes (but is not limited to) Facebook, YouTube, Vimeo, Twitter, Instagram, Google, WordPress, Drupal, Magento, Umbraco, Kooboo, Sitecore, Salesforce, Stripe, PayPal etc. Similarly, Code Brewery cannot be held responsible from a liability or cost perspective for any changes to programming frameworks, operating system updates across all device types, or new device launches as these are all out of our control. The benchmark for these elements will be based on what is currently active in the marketplace on commencement of a project. While we are subject matter experts and have access to information regarding when these updates/releases are due to happen, we cannot control their release nor can we control their impact on an existing project. Costs associated with these changes will be charged separately.
Hosting will be charged directly from one of our hosting partners, if desired. Cancellation of these services is the responsibility of the Customer.
In every case a deposit payment of 50% will be required prior to commencement of any services.
13. SEO Services
Code Brewery provide SEO services upon request with prudent skill and care. The Customer understands that SEO is governed by many factors which are outside the direct control of Code Brewery.
Search Engines are third party systems with unknown variables, algorithms and indexing decisions that can change at any time, with which we have no control over. As such, the Customer acknowledges that Code Brewery has no direct control over Search Engines and cannot guarantee the speed of performance of technologies provided by Search Engines in relation to the delivery of the services, or guarantee getting the website in question gets ranked #1 on any major Search Engine for a particular search term(s).