Terms of
Service
Last updated: 14 November 2024
1. INTRODUCTION
(a) The pronto studio website located at www.prontostudio.com.au (“Website”), is owned, controlled and operated by Melissa Jaye Wimberley t/as Pronto Studio (ABN: 94 318 686 744) (“Pronto Studio”, “we”, “our”, and/or “us”).
(b) These terms and conditions (T&Cs) apply to you if you purchase any of our Subscriptions. By purchasing any of our Subscriptions, you acknowledge and agree that you have read and accept these T&Cs, agree to be bound by these T&Cs, and understand that you are entering into a legally binding agreement with us.
(c) If you do not agree with these T&Cs, you should not purchase a Subscription.
(d) We reserve the right to vary these T&Cs from time to time. If we vary these T&Cs during your Subscription, we will provide you with 7 days’ written notice. If you do not agree to the variation of the T&Cs, you must cancel your Subscription under clause 8.
2. SUBSCRIPTIONS
(a) Pronto Studio offers the subscriptions set out on our website (see here) (each a “Subscription”).
(b) The availability of our Subscriptions is limited to a set number of Clients per month. Therefore, we cannot guarantee your preferred Subscription will be available.
(c) Prior to you purchasing a Subscription, we will request specific information from you, including your company name, company website URL and social media pages, email address, phone number, and cardholder details for payment of the Subscription Fees.
(d) The Subscription will activate at the date we receive payment of the Subscription Fees (“Activation Date”).
(e) Once your Subscription is activated:
(i) You become a “Client” and your Subscription will continue from the Activation Date until your Subscription is cancelled by you or us under these T&Cs (Subscription Term). If you wish to cancel your Subscription, you must provide 5 business days’ notice, otherwise your Subscription Term will automatically rollover into the next Subscription Period; and
(ii) You will be required to make an account with Trello, in order to receive our Services and Deliverables. If you do not wish to make an account with Trello, you should not purchase a Subscription.
(f) The period of each Subscription (“Subscription Period”) and the fees charged for each Subscription (“Subscription Fees”) are outlined on our website (see here). Unless otherwise specified, all Subscription Fees are in Australian Dollars ($AUD).
(g) You may pause your Subscription at any time, under clause 7.
(h) You may cancel your Subscription at any time, under clause 8.
(i) We reserve the right to vary Subscription features, pricing and other terms at the start of a new Subscription Period of your Subscription. If we wish to vary the terms of your Subscription, we will provide you with 7 days’ written notice of these variations. If you do not agree to these variations, you must cancel your Subscription under clause 8. If you do not cancel the Subscription, you will be deemed to have accepted the variations.
(j) Where we provide Services or Deliverables to you under these T&Cs as part of a Subscription, we do so as a non-exclusive independent contractor.
(k) We may engage sub-contractors to perform all or any part of our obligations under these T&Cs.
3. CONTRIBUTORS
(a) As a Client, you can grant members of your team access to your Subscription as “Contributors” by adding them to your Trello Board.
(b) Contributors can access the Trello Board, create Projects, move Projects, and delete Projects.
(c) Contributors cannot delete Clients or other Contributors and cannot create ‘power ups’.
(d) By granting Contributors access to your Subscription, you warrant that they will comply with these T&Cs.
(e) If a Contributor breaches these T&Cs, we may cancel your Subscription, in our discretion, under clause 9.
4. PROJECTS
(a) When you purchase a Subscription and become a Client, you gain access to our Services and Deliverables (see here under ‘Scope of Work’), in accordance with the terms of the relevant Subscription (see here).
(b) For the avoidance of doubt, the following deliverables are out of scope and not currently provided in any of our Subscriptions: Video, animations, complex packaging design, magazines or books.
(c) Clients can engage us to provide our Services and Deliverables for specific projects (each a “Project”) during the Subscription Term by accessing their Trello Board and:
(i) Adding a new Project to our queue; and
(ii) Submitting a brief on what is required for the Project; and
(iii) Outline the scope of use you require for the Final Deliverables (i.e.. what you want to use the materials and content we create for) (Usage Scope),
(each a Project Request).
(d) We reserve the right to reject Project Requests that fall outside the scope of our Services and Deliverables. We will inform you if your Project Request is not accepted.
(e) We reserve the right to reject or negotiate the Usage Scope requested under a Project Request. If we do not accept the requested Usage Scope, we will contact you to discuss and outline our approved Usage Scope with you, prior to commencing the Project.
(f) Once we have completed a Project and it is ready for review, the Project will be moved into the ‘Out of Proof’ section of the Trello Board. If you (and/or a Collaborator) would like us to make changes to the Project, a Revision request must be submitted via the Trello Board.
(g) For each Project, you are entitled to the following:
(i) Unlimited Project Requests, subject to clause 4(d);
(ii) Unlimited Revisions to each Project (each a “Revision”);
(iii) Delivery of final versions of the Project Deliverables (Final Deliverables) for use in accordance with clause 10. The Final Deliverables will be provided to you via Dropbox and/or your Trello Board; and
(iv) If your Subscription is a ‘Professional’ Subscription (see here), you are entitled to ‘Unlimited Brands’ for each Project. This means that if you own multiple brands or businesses (each a Brand) and you sign up for a Professional Subscription, you may make Project Requests for each of your Brands. Other Subscription types are limited to one Brand per Subscription.
(h) If your Subscription has a monthly Subscription Period, you are entitled to one 30-minute meeting (via phone or video call) each month of your Subscription Period to discuss your Projects and goals for that month. If a meeting is not booked in the relevant month, it does not roll-over to the next month.
(i) Our turn-around time for Projects varies based on the Services, Deliverables, Project Requests and Revisions you require. We aim to deliver the Services and Deliverables for each Project within 1-3 business days of commencing a Project. If Revisions are requested, we aim to deliver these within 1-3 business days of each request. You acknowledge that these timeframes are an estimate only and may be subject to change.
5. CLIENT OBLIGATIONS
(a) As a condition of your Subscription, you agree that during the term of your Subscription you (and any Contributors to your Subscription) will:
(i) Provide all necessary, complete, timely, and accurate instructions, briefs, information, documentation, images, brand assets, feedback, approvals, and other assistance that we require from time to time to provide our Services, by the dates we require and in the form we require;
(ii) Be easily contactable, respectful, open and considerate in your dealings with all people providing our Services, or otherwise connected with our Services; and
(iii) Not act in a way that is inappropriate, offensive, illegal or otherwise in breach of these T&Cs (as determined by us).
(b) If you (or your Contributors) breach clause 5(a):
(i) Our Services may be delayed;
(ii) We are not liable for any loss you may suffer because of this delay; and
(iii) We may cancel your Subscription, in our discretion, under clause 9.
6. SUBSCRIPTION FEES
6.1 General
(a) For Subscriptions that have a fortnightly Subscription Period, Clients will be charged the Subscription Fees:
(i) On the Activation Date for the first fortnight of the Subscription; and then
(ii) Fortnightly, in advance on the anniversary of the Activation Date, until the Subscription is paused (under clause 7) or cancelled (under clause 8 or 9).
(b) For Subscriptions that have a monthly Subscription Period, Clients will be charged the Subscription Fees:
(i) On the Activation Date for the first month of the Subscription; and then
(ii) Monthly, in advance of the anniversary of the Activation Date, until the Subscription is paused (under clause 7) or cancelled (under clause 8 or 9).
(c) Subscription Fees must be paid through Stripe, and you agree that the following terms will apply:
(i) We reserve the right to terminate your Subscription where you fail to respond to correspondence from us regarding any failed payment(s);
(ii) It is your responsibility to ensure that your Subscription details are accurate and up to date, including all contact and payment details;
(iii) You are not permitted to transfer your Subscription to another person; and
(iv) We reserve the right to vary Subscription Fees from time to time. If we wish to vary your Subscription Fees, we will provide you with 30 days’ written notice. If you do not agree to the variation of the Subscription Fees, your only remedy will be to cancel the Subscription under clause 8.
(d) All prices quoted by us for Subscriptions, whether on our Website or otherwise, include GST, unless otherwise specified.
6.2 Payment of Subscription Fees
(a) By purchasing a Subscription, you authorise our third-party payment processor, Stripe, (“Payment Processor”) to automatically direct debit your Subscription Fees from your nominated bank account.
(b) You acknowledge and agree that payments you make to us via our Payment Processor are subject to the Payment Processor’s applicable terms of service, which are available for reading on Stripe’s website: https://stripe.com/au.
(c) We reserve the right to charge a fee where a direct debit payment is unable to be processed by us and we reserve the right to suspend the provision of our Services and Deliverables for a Client’s Subscription until payment is made.
(d) We reserve the right to charge Interest on late payments.
(e) Where payments are more than 10 days late, we reserve the right to charge a late fee of 5% of your Subscription Fees (Late Fee). Where payments are 15 days late, your Subscription will be cancelled.
(f) Subscriptions Fees continue to accrue regardless of whether you engage us for any Projects during the relevant Subscription Period.
7. PAUSING YOUR SUBSCRIPTION
(a) We offer you the option to pause your Subscription for a period of up to 1 month.
(b) To pause your Subscription:
(i) You must notify us in writing that you want to pause your Subscription;
(ii) Your Subscription will then be ‘paused’ once we have delivered the Deliverables for all current Projects (i.e. if your Subscription has a monthly Subscription Period, and that month contains 31 days, and your Subscription is paused on day 10, then when you recommence your Subscription, you will have 21 more days left in that Subscription Period); and
(iii) You (and any Contributors) will not be able to access our Services or Deliverables while your Subscription is paused.
(c) To recommence a paused Subscription:
(i) You must notify us in writing that you wish to recommence your Subscription; and
(ii) Your Subscription and Subscription Period will recommence (i.e. if your Subscription has a monthly Subscription Period, and that month contains 31 days, and your Subscription paused on day 10, then when you recommence your Subscription, you will have 21 more days left in that Subscription Period).
(d) If you do not recommence your Subscription after 1 month, your Subscription will be cancelled and clauses 9(c) and 9(d) will apply.
8. CANCELLING YOUR SUBSCRIPTION
(a) If you wish to cancel your Subscription, you must notify us at least 7 days before your next payment is due and, if you do so by this date, your Subscription will expire at the end of the current Subscription Period.
(b) If you fail to notify us at least 7 days before your next payment is due, you will be charged for the next Subscription Period’s Subscription Fees in full and your Subscription will be cancelled at the conclusion of the next Subscription Period.
(c) Subject to clause 13.1(a), if you cancel your Subscription, you are not entitled to a refund of the Subscription Fees paid to us for your Subscription.
(d) Your agreement with us (as governed by these T&Cs) will terminate once your Subscription is cancelled.
9. OUR RIGHTS TO CANCEL YOUR SUBSCRIPTION
(a) We are entitled to cancel your Subscription in our discretion, including when you (or your Contributors) breach these T&Cs.
(b) If we wish to cancel your Subscription, we will provide you with 7 days written notice before the Subscription Fees for your next Subscription Period are due, following which your Subscription will expire at the end of the current Subscription Period.
(c) Subject to clause 13.1(a), if we cancel your Subscription, we reserve the right to retain the Subscription Fees paid to us for your Subscription.
(d) Your agreement with us (as governed by these T&Cs) will terminate once your Subscription is cancelled.
10. INTELLECTUAL PROPERTY AND PROMOTION
10.1 Your IP
(a) If you provide us with intellectual property owned or controlled by you (Your IP) during the Subscription Term, we confirm that you retain all rights, title and interest in and to Your IP. Nothing in these T&Cs transfers any right, title or interest in Your IP to us.
(b) You grant us and our Representatives a non-exclusive licence to use Your IP to enable us to perform our obligations under these T&Cs.
(c) You warrant that you have obtained all necessary consents and permissions to allow us and our Representatives to use Your IP in connection with these T&Cs and that this use of Your IP will not infringe any third party rights.
10.2 Our IP
(a) If we incorporate any intellectual property owned or controlled by us, that was not created specifically by us for any of the Projects under your Subscription (Our IP), you confirm that we retain all rights, title and interest in and to Our IP. Nothing in these T&Cs transfers any rights, title or interest in and to Our IP to you.
(b) Where we incorporate any of Our IP into the Final Deliverables, we grant you a non-exclusive licence to use Our IP for the limited and sole purpose of you being able to use the Final Deliverables in accordance with these T&Cs.
10.3 Third Party IP
(a) We may at our discretion (or at your request) incorporate IP owned by third parties into the Deliverables such as stock images, fonts, source code and other licensed materials (Third Party IP).
(b) Your use of the Third Party IP as part of the Final Deliverables is subject to terms set by the relevant third party owner (Third Party Licences). Where licence fees are required for your use of the Third Party IP as part of the Final Deliverables, we will inform you of such fees. You will be responsible for maintaining and paying for all applicable Third Party Licences, unless otherwise notified by us in writing.
10.4 IP Licence and Usage Rights
Subject to these T&Cs and clause 10.5 (which applies in the case of logo designs):
(a) We grant you an exclusive, perpetual, global, sublicensable licence to use the Final Deliverables that we create for you as part of your Subscription for the Usage Scope approved by us (Licence);
(b) You are not entitled to use the Final Deliverables other than in accordance with the terms of the Licence;
(c) If you would like to use the Final Deliverables other than in accordance with the Licence or seek an assignment of the Intellectual Property in the Final Deliverables, you must seek our prior written consent, and further charges may apply. We reserve the right, in our sole discretion, to reject such a request; and
(d) These T&Cs do not transfer ownership to you of any Intellectual Property created in connection with the provision of the Services including the Deliverables and Final Deliverables (“Developed IP”), or any modifications of the Developed IP.
10.5 Logos
If we create a logo for you as part of your Subscription, then, subject to your compliance with these T&Cs, we hereby assign the intellectual property (including copyright) in the final version of the logo (Final Logo) to you upon delivery of the Final Logo to you.
10.6 Promotion and Credit
(a) We retain a non-exclusive licence to use the Deliverables and Final Deliverables for our self-promotional, marketing or demonstrative purpose (including in awards, pitches, on our website and social media, and in our portfolio) and you consent to us using your name and logo as part of any published client list.
(b) We reserve the right to be credited for our creation of the Final Deliverables for a Project (Credit) in accordance with the following terms:
(i) We will inform you (upon receipt of a Project Request) if we require a Credit for that Project (and how the Credit must be provided), before commencing that Project;
(ii) If we have requested a Credit for a Project, we will commence the Project you confirms you will provide the Credit; and
(iii) If you do not wish to provide the Credit, you must cancel that Project Request.
11. ARCHIVING OF FINAL DELIVERABLES
(a) After a Subscription Terms ends, we will hold copies of Final Deliverables for that Subscription in our archives for a period of up to 3 months (Archiving Period), after which the Final Deliverables will be removed from our archives, unless otherwise agreed in writing, where additional fees may apply.
(b) During the Archiving Period, we archive Final Deliverables on reliable media which is commercially available at that time. We take utmost care with the archiving and storing of Final Deliverables but will in no way be liable for any Loss resulting from media that deteriorates, breaks, develops faults, is in a format that otherwise becomes obsolete or are otherwise unable to be accessed or used.
(c) We do not guarantee any applicable archives of Final Deliverables can be recovered and/or used.
12. PRIVACY
(a) We will collect, use and disclose any personal information you provide in accordance with the privacy policy on our Website: [insert URL link to privacy policy] (“Privacy Policy”).
(b) For information on our information collection and handling practices, please refer to our Privacy Policy.
13. SERVICE STANDARDS
13.1 Australian Consumer Law
(a) Nothing in these T&Cs restricts, limits or excludes any rights you may have under the Australian Consumer Law or any other law.
(b) We will provide the Services with due care and skill and:
(i) If you acquire the Services as a Consumer, we will provide the Services in accordance with any applicable Consumer Guarantees, however to the fullest extent permitted by law, we exclude any implied warranty or condition in relation to those Services; or
(ii) If you do not acquire the Services as a Consumer, then to the fullest extent permitted by law, we do not make any warranties or guarantees that the Services will be suitable or fit for any particular purpose and otherwise exclude any implied warranty or condition in relation to those Services.
13.2 Liability and Indemnity
(a) Each party to these T&Cs (the First Party) is liable for and indemnifies the other party and that other party’s employees and agents (the Indemnified Party) against any reasonable and quantifiable Loss or Claim suffered by the Indemnified Party in respect of any breach of these T&Cs by the First Party subject to:
(i) The Indemnified Party taking reasonable steps to mitigate such Loss or Claim; and
(ii) The First Party’s liability being reduced proportionately to the extent that the Indemnified Party’s negligent act or omission contributed to the Loss or Claim.
13.3 Limitations of Liability
(a) Neither party is liable to the other party for any kind of Consequential Loss arising out of or in connection with these T&Cs.
(b) Any recommendations, strategies, opinions, Services, Deliverables and Final Deliverables provided by us as part of a Subscription are based on our experience and professional judgment and are not guarantees that the Services and Deliverables will achieve certain results or outcomes. Subject to any rights you have under clause 13.1(a), by purchasing a Subscription you acknowledge and agree that reasonable people may disagree on matters involving professional judgment and, accordingly, a difference of opinion on a question of professional judgment will not excuse you from paying for Services rendered. Furthermore, and subject to any rights you have under clause 13.1(a), where our Services and Deliverables do not obtain certain results or outcomes, you agree that this will not excuse you from paying for the Services rendered.
14. GENERAL
14.1 Miscellaneous
(a) Capitalised words may be defined in the Definitions section or the body of these T&Cs.
(b) These T&Cs form the entire agreement between the parties as to its subject matter. We reserve the right to vary certain terms of these T&Cs per clauses 1(d), 2(i), and 6.1(c)(iv).
(c) These T&Cs will be governed by the laws of Queensland, Australia. The parties agree that the courts of Queensland, Australia (or where applicable, the Federal Court of Australia) will have exclusive jurisdiction of these T&Cs.
(d) Unless expressly allowed in these T&Cs or with our consent, you must not assign or novate your rights and obligations under these T&Cs to another person.
(e) If the whole or any part of these T&Cs is void, unenforceable or illegal, it will be severed, and the remainder of the T&Cs will continue in full.
(f) The following clauses will survive the conclusion of these T&Cs: Clauses 6.2, 8(c), 9(c), 10, 12, 13 and 14.
14.2 Definitions
In these T&Cs, the following definitions apply:
Australian Consumer Law means the Competition and Consumer Act 2010 (Cth) Schedule 2.
Claim means any allegation, debt, cause of action, liability, claim, proceeding, suit or demand of any nature whether present or future, fixed or unascertained, actual or contingent, at law, in equity, under statute or otherwise.
Confidential Information means any information belonging to or relating to us howsoever acquired that is marked confidential or is by its nature confidential, including, without limitation, trade secrets, Intellectual Property, know-how, business and financial data, policies, plans, databases, client lists and reports but does not include information which is or becomes generally available in the public domain (other than through breach of these T&Cs or an obligation of confidence).
Consequential Loss means special, incidental, indirect or consequential damages, loss of revenue, anticipated savings, profits, goodwill, reputation, interest or business, but specifically excludes legal and other professional costs of the parties.
Consumer Guarantees has the same definition as in the Australian Consumer Law.
Consumer has the same definition as in the Australian Consumer Law.
Force Majeure Event means anything outside the reasonable control of a party to these T&Cs including without limitation an act of god, war, natural disaster, pandemic, global financial crisis, financial crisis, injury or illness, death in the family, government shutdown or similar restrictions, hacking, viruses, internet connectivity issues, power outages and any other cause not reasonably within the control of the party affected.
GST has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property means all rights conferred under statute, common law or equity, wherever in the world subsisting, in relation to trade marks, copyright, patentable inventions and designs, whether existing now or in the future, and whether or not registered or registrable, and includes any rights subsisting in or relating to trade secrets, know how, geographical indications of origin, techniques, libraries and databases, Confidential Information, and further includes the right to apply for the registration or grant of any such intellectual property.
Interest means interest at the rate of 2% above the cash rate set down from time to time by the Reserve Bank of Australia, such interest which is capitalised monthly.
Loss means any loss, cost, expense (including legal costs on a full indemnity basis) or damage, whether direct or indirect, present or future, fixed or ascertained, actual or contingent and whether arising under contract, in tort, at common law, in equity, under statute, under an indemnity or otherwise.
Representative means any person acting for or on behalf of us and includes any director, officer, employee, agent, contractor, sub-contractor or authorised representative of ours.
T&Cs means the terms and conditions of this agreement.
14.3 Interpretation
In these T&Cs:
(a) a word importing the singular includes the plural and vice versa;
(b) a law is a reference to that law as amended, consolidated or replaced;
(c) a party to these T&Cs includes its agents, personal representatives, successors and permitted assigns;
(d) a person, includes a natural person, partnership, joint venture, corporation, trust, governmental agency, association or other body corporate;
(e) a time, is a reference to the time in the State or Territory of the jurisdiction that governs these T&Cs;
(f) $, is a reference to Australian dollars unless otherwise expressly stated; and
(g) the words ‘such as’ or ‘including’ are not used as words of limitation.