Terms

01. Terms & Definitions

• "The Company" refers to Canary Australia Pty Ltd (ABN 44 617 734 399).
• "Trading Names" refers to all current and future registered trading names operated by the Company, including but not limited to Creative Canary, Canary Australia, Neon Canary, and Canary Agency. Any reference within these terms to Canary Australia Pty Ltd implicitly includes and applies to all current, listed, and future trading names.
• "Client" refers to the customer, person, or entity for whom the work is being carried out.
• "Contract" refers to the legal agreement between Canary Australia Pty Ltd and the Client incorporating these terms.
• "Quotation" refers to the document forwarded to the Client detailing the scope of work and costs, which the Client accepts in writing.
• "Project" or "Work" refers to the development, design, asset creation, fabrication procurement, or strategy of any website, graphic, signage, or digital asset as a part or whole.
• "Content" refers to all digital text, graphics, images, branding assets, logins, and documentation provided by the Client in relation to the Work.

02. Pricing & Payments

• Currency & GST: All prices are invoiced in Australian Dollars (AUD) and are exclusive of GST unless specifically stated otherwise.
• Deposit: A 50% deposit of the total quoted amount may be requested and must be paid prior to the commencement of any Work. This deposit is strictly non-refundable.
• Final Payments: The remaining 50% balance is due within 30 days of the final invoice date, or strictly based on the specific payment terms stipulated on the issued invoice.
• Late Fees: Any invoice outstanding past its specific due date will automatically incur a 10% late payment fee.
• Service Suspension: Canary Australia Pty Ltd reserves the right to suspend or disable any active service, website, project development, or hosting environment if payment terms are not met within 7 days of an invoice due date. File or asset releases will be withheld until the account is settled in full.
• Recurring Hosting Invoices: Website hosting invoices are automatically generated and issued annually on the 1st of July. If a hosting invoice is not paid by its stipulated due date, the hosting service will be suspended immediately by Canary Australia Pty Ltd to protect operational infrastructure.

03. Content, Delivery & Digital Workflows

• Digital Delivery Only: All Client source content and assets must be delivered digitally via email or Microsoft OneDrive. Canary Australia Pty Ltd operates a fully digital workflow and does not accept physical media or hard-copy assets.
• Client Warranties: The Client warrants that all supplied Content is the legal property of the Client, does not breach Australian or international copyright laws, and is free of computer viruses or malicious code.
• Indemnity: The Client completely indemnifies Canary Australia Pty Ltd from any third-party loss, legal action, or damage arising from a breach of these material warranties.
• Confidentiality: All sensitive information, credentials, and materials supplied by the Client to Canary Australia Pty Ltd will be kept strictly confidential.

04. Service Limitations, Revisions & Exclusions

• Technical Execution Only (Not a Marketing Agency): The Client explicitly acknowledges and agrees that Canary Australia Pty Ltd operates strictly as a creative graphic design and technical web development provider. The Company is not a marketing agency, business consultancy, copywriting house, or advertising strategy firm. We do not formulate advertising campaigns, market positioning strategies, slogans, or copy structures. All deliverables are built and executed mechanically based entirely on the specific briefs, directives, text, and operational concepts supplied by the Client. The Company accepts zero liability for the commercial efficacy, consumer response, or financial return on investment (ROI) of any project.
• Revision Limits: Standard project quotations include unlimited design revisions capped at a maximum of 5 hours of total execution time. If revision requests exceed 5 hours, additional fees will be incurred at Canary Australia Pty Ltd’s standard hourly rate.
• E-Commerce Exclusion: Unless explicitly detailed and costed as a standalone line item within the initial project Quotation, all standard web design scopes strictly exclude e-commerce functionality, online store configurations, inventory systems, and payment gateway setups.

05. Intellectual Property & Raw Files

• IP Ownership: Canary Australia Pty Ltd retains full intellectual property (IP) and copyright ownership over the final design of the work, including structural layouts, custom styles, colour schemes, and underlying custom code scripts. Client-supplied assets remain the property of the Client.
• IP Transfer & Release: If the Client wishes to obtain full legal ownership of the final IP, they must formally request it, arrange the appropriate legal transfer documentation at their own expense, and pay an agreed-upon IP release fee to Canary Australia Pty Ltd.
• Raw Working Files: Canary Australia Pty Ltd is under no obligation to hand over unflattened or raw working assets (e.g., Figma links, Photoshop/Illustrator files). A specialised release fee must be paid if raw working assets are requested.
• Trademark & Name Clearance: The Client acknowledges and agrees that Canary Australia Pty Ltd does not perform trademark, business name, or intellectual property availability searches (including IP Australia registry searches) for logos, slogans, business names, or branding concepts developed during a Project. It is the Client's sole responsibility to conduct all necessary legal due diligence and ensure that any name, text, or concept approved for use does not infringe upon existing third-party trademarks or registered designs. The Client assumes all liability for trademark disputes, rebranding costs, or legal claims arising from the commercial use of the final deliverables.

06. AI-Generated & Stock Content

• Utilisation of Assets: The Client acknowledges and agrees that Canary Australia Pty Ltd may utilise artificial intelligence (AI) generated elements, tools, and third-party stock content (including but not limited to AI-generated code, stock imagery, graphics, audio, vector elements, and video assets) as part or whole of any active Project, Website, or Graphic Design work.
• No Asset Warranties: Canary Australia Pty Ltd provides no absolute warranties or guarantees regarding the uniqueness, proprietary exclusivity, or global patentability/copyright registration limits of any integrated third-party stock assets or AI-generated output.
• Transfer of Full Liability: The Client explicitly understands, accepts, and approves the potential use of these digital tools and assets. The Client assumes 100% full legal risk, commercial liability, and platform usage responsibility for the ongoing publication, distribution, or online performance of deliverables containing AI or stock elements. The Client completely indemnifies and holds harmless Canary Australia Pty Ltd against any future third-party copyright, intellectual property infringement, or licensing claims arising from the Client's public use of these materials.

07. Signage Procurement & Third-Party Installations

• Independent Contractor Status: Where Canary Australia Pty Ltd manages, coordinates, or arranges physical signage, structural fabrication, or building installation services on behalf of the Client, the Client explicitly acknowledges that all manufacturing, structural engineering calculations, building attachments, and physical installation works are executed entirely by independent third-party contracting firms ("Signage Providers"). Canary Australia Pty Ltd acts strictly as a design coordinator and billing intermediary.
• Structural Integrity & Damage Disclaimer: To the maximum extent permitted by law, Canary Australia Pty Ltd accepts zero civil liability and extends no structural guarantees or structural safety warranties for the completed signage. Canary Australia Pty Ltd is completely exempt from liability for physical or structural damage to buildings, structural foundations, vehicles, or surrounding property caused by or during the installation, mounting, maintenance, or potential detachment of signage elements (including large-scale lettering structural failure).
• Personal Injury Protection: The Client acknowledges that structural security and safety enforcement belong entirely to the Signage Provider's insurance framework and the Client's own facility policies. Canary Australia Pty Ltd accepts zero liability for public liability claims, medical expenditures, personal injury, or death resulting from falling signage components, attachment failures, or installation site accidents.
• Business Interruption & Downtime: Canary Australia Pty Ltd is entirely excluded from liability for any consequential commercial losses, loss of trade, structural relocation fees, or operational business downtime experienced by the Client or building occupants during or after the execution of signage work.

08. Artwork Accuracy & Advertising Compliance

• Factual Vetting Responsibility: The Client assumes sole and absolute legal responsibility for reviewing, vetting, fact-checking, and verifying the total copy, pricing structures, statutory disclaimers, and data accuracy of all creative output (including print files, promotional banners, digital marketing graphics, menus, social media campaigns, and signage). Formal digital sign-off or explicit email confirmation by the Client constitutes an absolute legal declaration of accuracy.
• Pricing Errors & Commercial Exposures: Canary Australia Pty Ltd is completely exempt from liability for financial losses, lost profit margins, forced stock liquidations, or operational damage arising from typographical or graphical pricing errors embedded within design materials. If a design goes to print or live digital publication displaying an incorrect promotional price, the Client bears 100% of the commercial risk and financial consequences associated with honouring, fulfilling, or rectifying that pricing structure.
• Statutory Compliance & False Advertising Shield: The Client warrants that all marketing descriptions, performance metrics, comparative assertions, and pricing structures presented to the Company comply fully with the Competition and Consumer Act 2010 (Cth), the Australian Consumer Law (ACL), and all regional fair trading statutory instruments. Canary Australia Pty Ltd accepts zero responsibility for false, misleading, or deceptive advertising mechanics. The Client completely indemnifies and holds harmless Canary Australia Pty Ltd against all statutory fines, ACCC enforcement penalties, civil damages, legal actions, consumer class actions, or business reputation damage stemming from regulatory breaches within Client-approved materials.

09. Regulated Industries, Hospitality, Liquor & Gaming

• Regulated Sectors Acknowledgment: The Client explicitly acknowledges that certain commercial sectors—specifically including hospitality, liquor service, wagering, gaming, tobacco, vaping, and therapeutic goods—are bound by highly restrictive state and federal statutory frameworks, industry codes of conduct, and licensing guidelines (including but not limited to regional Liquor Control Acts, Gaming and Wagering Commission Regulations, the Alcohol Beverages Advertising Code (ABAC), and the National Consumer Protection Framework for Online Wagering).
• Mandatory Licensing Warranties: Where the Client requests design, website modification, copy editing, or digital promotional assets targeting these sectors, the Client warrants that the requested campaign strictly complies with their specific venue licence conditions, responsible service guidelines, and statutory advertising bans (including prohibitions against unapproved gambling inducements, rapid consumption appeals, or targeting minors).
• Regulatory Compliance Vetting: Canary Australia Pty Ltd acts purely as a technical execution vehicle and creative developer. The Company does not provide legal advice, compliance audits, or regulatory vetting. It is the Client’s standalone obligation to ensure that all copy, imagery, and promotional structures are reviewed by their own legal counsel prior to commissioning or approving the Work.
• Permits, Lotteries & Trade Promotions: If a Project or Work involves a trade promotion lottery, raffle, competition, sweepstake, or restricted liquor promotion requiring explicit state permits, clearances, or regulatory registrations, the Client is solely responsible for obtaining, paying for, and maintaining those permits. The Client must provide all mandatory permit numbers and statutory disclosure text to the Company for inclusion in the artwork prior to final production.
• Accessory Liability Indemnity: In the event that Canary Australia Pty Ltd is investigated, fined, prosecuted, or named as an accessory or co-defendant by any statutory regulatory body due to a breach contained within a Client-commissioned or Client-approved asset, the Client agrees to fully indemnify and hold harmless Canary Australia Pty Ltd. This indemnity covers the total cost of all corporate or individual statutory fines, legal defense expenditures calculated on a full solicitor-client basis, administrative operational costs, and consequential revenue losses suffered by the Company.

10. Third-Party Software, Plugins & Breakages

• Plugin Stability Disclaimer: Modern websites rely on third-party integrations (such as WordPress, core frameworks, and independent plugins). Canary Australia Pty Ltd is never responsible for a live website breaking, malfunctioning, or throwing errors due to an independent third-party software update or automated patch.
• Repairs & Backups: Any diagnostics, fixes, or backup restoration required due to plugin or third-party software changes will be billed explicitly at Canary Australia Pty Ltd's standard hourly rate.
• Software Licences: Software or premium theme licences provided under Canary Australia Pty Ltd’s agency developer accounts belong exclusively to Canary Australia Pty Ltd. Upon termination of services or migration away from Canary Australia Pty Ltd, these licences will be revoked. If the Client wishes to maintain these premium integrations, they must purchase their own independent software keys; Canary Australia Pty Ltd can assist in configuring new licences prior to migration at our standard hourly rate.

11. Web Hosting, Migration & Off-Boarding

• Downtime Liability: Canary Australia Pty Ltd is not liable for any loss of business productivity, revenue, or convenience due to website downtime caused by routine maintenance, acts of God, or disruptions stemming from upstream infrastructure providers.
• External Hosting Setup: If a Client chooses to host a completed project with an external third-party host, a flat migration and deployment fee will be incurred, calculated directly using Canary Australia Pty Ltd's standard hourly rate.
• Off-Boarding Support: Upon termination of services, standard hourly rates apply to all administrative off-boarding tasks, data exports, and packaging of files. Canary Australia Pty Ltd will grant the Client's incoming digital agency server access for a strictly limited time window to retrieve files. Should the incoming agency fail to download the files within this allocated window, additional access or extensions will incur hourly fees. Off-boarding actions will only commence once all outstanding balances owing to Canary Australia Pty Ltd are paid in full.

12. Compliance, Browsers & SEO

• Browser Compatibility: Websites designed by Canary Australia Pty Ltd are strictly optimised for the latest stable public versions of major modern browsers (Google Chrome, Apple Safari, Microsoft Edge, and Mozilla Firefox) at the exact time of the website's launch. Canary Australia Pty Ltd provides no guarantee of layout compatibility on obsolete, legacy, or highly niche custom browsers.
• Code Standards: Canary Australia Pty Ltd builds sites to current digital standards but is not liable for evolving web validation or accessibility changes once a project is complete. Continued compliance updates will incur additional costs.
• SEO & Tracking Limitations: Navigation metrics and ongoing optimization rankings are managed outside standard engineering scopes. Canary Australia Pty Ltd is not responsible for ongoing search engine optimisation rankings, metadata updates, or data discrepancies and cancellations within third-party tracking tools like Google Analytics unless explicitly contracted under a distinct marketing agreement.

13. Project Delays, "Ghosting" & Termination Expiry

• Project Pause & Restart Fee: If a Client is completely unresponsive or fails to provide critical required Content within 4 weeks of a project's formal approval date, the project will be categorised as "Paused". The project will be invoiced for all work completed up to that date, and a 10% reactivation fee (based on the total project value) will be charged by Canary Australia Pty Ltd to schedule and restart the project.
• 12-Month Contract Expiry: If a project remains paused, delayed, or uncompleted due to Client-side actions or lack of communication for a continuous period of 12 months, the contract will automatically terminate. Under these circumstances, the Client completely forfeits all monies paid, and all past project progress, designs, and files held by Canary Australia Pty Ltd are permanently forfeited.

14. Breach, Promotions & Legal Compliance

• Breach Metrics: A material breach of contract occurs upon a failure to pay invoices, continuous non-responsiveness, failure to interact professionally, or engaging in abusive or aggressive communication toward Canary Australia Pty Ltd staff. Canary Australia Pty Ltd reserves the right to terminate business immediately if a notified breach is not remedied within 7 days.
• Mutual Non-Disparagement: Both Canary Australia Pty Ltd and the Client agree to act professionally and refrain from making, publishing, or encouraging any defamatory, disparaging, or maliciously critical public comments, online reviews, or social media remarks regarding the other party's brands, trading names, staff, or services.
• Promotional Rights: Canary Australia Pty Ltd retains the right to display and showcase any portion of the completed or in-development Work, digital assets, and website screenshots across its own portfolio websites and generalised online social media channels for marketing purposes.
• Design Attribution: Canary Australia Pty Ltd retains the right to place a small, discreet design credit and backlink within the footer of any developed website (e.g., "Website Design by Creative Canary" or alternative applicable trading name). This attribution cannot be removed by the Client post-launch without a negotiated white-label fee paid to Canary Australia Pty Ltd.

15. Limitation of Liability & General Law

• Consequential Loss Exclusion: To the maximum extent permitted by Australian Law, Canary Australia Pty Ltd is not liable to the Client for any indirect, incidental, special, or consequential losses, including but not limited to loss of business profits, revenue, data, website traffic, marketing momentum, or commercial reputation.
• Liability Cap: Canary Australia Pty Ltd’s total aggregate liability in relation to any breach of contract or performance failure is strictly limited to either the re-supply of the specific services or a refund of the exact fees received under the specific active Quotation.
• Privacy Link: All Client data, credentials, and digital materials are handled strictly in accordance with Canary Australia Pty Ltd's independent Privacy Policy, which outlines data collection, security, and usage boundaries.
• Governing Law: This agreement is governed exclusively by the laws of Western Australia. Both parties submit to the exclusive jurisdiction of the courts of Western Australia.
• Severability: If any single clause or provision within these terms is deemed unlawful, void, or unenforceable by an Australian court, that specific section will be severed, and the remaining clauses will continue to be 100% legally binding and enforceable.