Welcome Users! Thanks for using our services. The Services are provided by swopplys, located in the USA. By using our Services, you are agreeing to these terms & conditions. Please read them carefully. Our Services are very clear and easy to understand, sometimes additional terms or requirements (including age requirements) may apply. Additional terms will be available with the relevant Services, and those additional terms become part of your agreement with us if you use those Services. Quotations and Proposals and Creation of Contract
- No contract shall arise between swopplys and the Client unless and until the following occurs:
- swopplys has provided a Quotation and/or Proposal to the Client based on the brief and or instructions provided by the Client; and
- The Client accepts the Quotation before its expiration date and/or Proposal by placing an order, instructing swopplys to proceed and/or executing and returning the Proposal to swopplys, and paying to swopplys any upfront fees before the expiration date specified in the Proposal.
- Quotes are valid for 14 days from the date of issue. Quotes will be deemed accepted upon the Client placing an order and/or instructing swopplys to proceed with the Project.
- Proposals are valid and maybe accepted within 14 days from their date of issue. After such 14 day period has expired, swopplys reserves the right to reconsider any term or condition of the Proposal (including the re-pricing of the Proposal).
- Prices included in Quotations and Proposals are based on swopplys’s current cost of production, (materials, labor, machine time, etc). If between the date of the Quotation and/or Proposal and the date of completion of the project, the price of any component such as labor or materials increases, swopplys reserves the right to vary the costs payable for the Project to reasonably reflect such increased costs. swopplys will advise the Client of any such proposed increase and the Client will have the right to terminate (by notice in writing to swopplys) the Project, subject to payment of all costs for work performed by swopplys up to the date of such termination.
Agency Arrangements If the Client contracts swopplys on behalf of any other person i.e. other than for the Client personally, the Client warrants that they are authorized to enter into a contract on behalf of such person and that the Client will be liable for all costs irrespective of whether or not the details of such other person are disclosed to swopplys. If swopplys is contracted to work on a Proposal for a Client of the Client, swopplys will have no duty or responsibility to such Client and will not be contractually bound to such Client. The Client agrees to indemnify swopplys against any claim (of any nature) by any Client of the Client which arises as a direct or indirect consequence of the Client’s use, or inability or unwillingness to use, the material delivered by swopplys to the Client. Process and the Client Brief and Instructions swopplys prides itself on its ability to deliver quality work in a timely and cost-effective manner. Fundamental to this process is the completeness of the scope of the Client’s brief. To be able to provide Goods and/or Services and to deliver a project on time and within the parameters of a Quotation and/or Proposal, all supporting documentation and information must be provided to swopplys before the issue of any Proposal and before swopplys commences work. swopplys shall only be required to fulfill the instructions specified in the Quotation and/or Proposal. swopplys shall not be responsible for errors or omissions in the Client’s instructions or verbal instructions. On the valid acceptance of a Proposal, swopplys will, where applicable, confirm the proposed process, timeline, and delivery date for the performance of the Project. Costs and Fees All prices are based on work specified in the Quotations and/or Proposals and/or further instructions given by the Client. The labor costs specified in swopplys’s Quotations and/or Proposals are based either on an hourly rate or a Project basis. On occasion, where requested by a Client, swopplys may consider a retainer arrangement. The Client will be liable for any goods and services tax payable on the supply of Goods and/or Services by swopplys to the Client. Goods and services tax will be charged in addition to costs and fees and will be itemized in the Invoices. swopplys’s initial consultation is provided free of charge. Emergency turnaround requirements of less than 48 hours and out-of-business-hour requirements will attract a premium, which will be negotiated and agreed upon with the Client. Prices will be increased to cover overtime work or other additional costs incurred as a result of any requirement for urgent completion of a Project. Payment Terms All Invoices will be payable COD unless prior credit arrangements have been agreed with swopplys. Any credit arrangements will require swopplys’s Account Application form to be completed and approved by swopplys. Any credit provided to a Client must be paid in full within 30 days from the date of the Invoice. Any deposit specified in the Proposal must be paid by the Client on the date of acceptance of the Proposal and in any event before commencement of the Project. The amount of deposit will vary with the Services to be provided. The amount of a deposit will reflect swopplys’s reasonable estimate of costs incurred to the date before the due date of payment of the deposit and is non-refundable. swopplys will issue Invoices at Completion of the Project for the price specified in the Quotation and/or Proposal plus any additional charges referred to in these Terms and Conditions or as agreed, or if the project is lengthy, swopplys may at its discretion issue interim Invoices on either a monthly basis or such lesser period by reference to the work performed to that date under the fee schedule included in the Proposal, or if no fee schedule is specified, as reasonably calculated by swopplys by reference to the amount of work performed. swopplys may issue an Invoice for the amount specified in the Quotation and/or Proposal before commencing the Project where swopplys has not previously carried out work for the Client or where swopplys considers it prudent to do so. swopplys may if swopplys is of the view that completing the project will take more than a month, at any time before the Project is completed, issue one or more Invoices for a proportion of the amount specified in the Quotation and/or Proposal (the proportion to be at swopplys’s discretion) and require that proportion to be paid in advance of any further work being done. Late or Non-Payment If an Invoice is not paid when due, swopplys may cease any further work on the Project until all outstanding invoices have been paid. swopplys may at its option charge interest on amounts not paid when due. Such interest is to be calculated daily from the date any such amount should have been paid until the date of payment. Such charge represents swopplys’s genuine assessment of the liquidated damages which swopplys will suffer as a result of the Client’s delay in making payment. The Client must pay to swopplys any costs, expenses, or losses incurred by swopplys as a result of the Client’s failure to pay swopplys all sums outstanding from the Client to swopplys (including without limitation all debt collection and legal costs (on an indemnity basis)) which are incurred by swopplys in recovering monies due by the Client to swopplys. Delivery swopplys shall notify the Client when Services are ready for collection. The Client must collect Services from swopplys’s premises upon being notified by swopplys that the Services are ready for collection. If swopplys agrees to deliver the Services, the Client shall bear all freight and charges of such delivery. swopplys will use its best endeavors to deliver the correct quantity ordered however quantities will at all times be considered estimates only and are conditional upon a margin of five percent (5%) being allowed for overs or shortages, which shall be charged for or deducted as appropriate. Claims The Client must inspect Services supplied by swopplys within seven (7) days from delivery or otherwise, within seven (7) days of notification that the Services are ready for collection. Any claims against swopplys must be in writing within seven (7) days. Liability for our Services WHEN PERMITTED BY LAW, swopplys, AND ITS EMPLOYEES, WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES. TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF swopplys, AND ITS EMPLOYEES, FOR ANY CLAIM UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU PAID US TO USE THE SERVICES (OR, IF WE CHOOSE, TO SUPPLYING YOU THE SERVICES AGAIN). IN ALL CASES, swopplys AND ITS EMPLOYEES, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE. Expedited Completion of Project The Client acknowledges that a requirement for urgent completion of a Project increases the likelihood of defects. swopplys will use reasonable efforts to avoid defects but will not be liable for defects arising because of the urgent completion of a Project. Cancellation and Postponement If a Project is terminated or canceled or suspended or postponed for a period of up to 30 days by the Client before Completion, swopplys shall be entitled to be compensated for hours worked on the said Project to the date of termination, cancellation, suspension or postponement, including the costs of any materials, incidentals, and third party contractors. If the Project comprises in whole or in part any website development, then once the design work for a website has been signed off by the Client and website build has commenced, such website development component of the Project cannot be canceled and the total cost of such website development must be paid for in full. swopplys is not liable for any loss of income or for any indirect or consequential costs or damages suffered by the Client or by any third party as a result of any delay that has been caused to the Client’s business or the business of any third party due to the cancellation, suspension or postponement of any Project. Third-Party Contractors swopplys, may as agents for the Client directly or indirectly engage the services of another contractor (“Third Party Contractor”) to carry out all or part of the Project. swopplys shall pay the charges of Third Party Contractors on the Client’s behalf and recharge them under the Project fees. swopplys will take all reasonable care in selecting and instructing a Third Party Contractor. While reasonable care will be taken, swopplys has no control over the activities of a Third Party Contractor and therefore, swopplys has no responsibility for the services provided to the Client by any such Third Party Contractor or for any errors or omissions in its services or products. Any claim by the Client about such services must be made directly against the Third Party Contractor. Services from Third Party Suppliers If swopplys must obtain services not normally stocked or supplied by swopplys from a third party to carry out the Client’s instructions:
- swopplys will not be liable for any breach of these Terms and Conditions if that breach is a result of or is connected with the supply by the third party of such services.
- swopplys acquires these services as agents for the Client and not as principal. swopplys will have no liability to the Client about the supply of those services. Any claim by the Client about the supply of those services must be made directly against the third party supplier.
- swopplys will pay the third party for the services on the Client’s behalf and add the costs to the Client’s next Invoice as a disbursement.
Copyright and Trademarks Copyright in all work produced by swopplys shall remain the property of swopplys unless otherwise agreed in writing. All Services provided by swopplys may only be used for lawful and ethical purposes. This includes, but is not limited to copyrighted material. swopplys is not required to perform any Services it considers to be unethical, objectionable, threatening, obscene, or pornographic. The Client warrants to swopplys that the Client has copyright in, or a license to authorize swopplys to reproduce all materials supplied by the Client to swopplys for the Project. The Client expressly authorizes swopplys to reproduce all and any of such works for the Project. The Client warrants it has the right to use applicable trademarks which may be incorporated in any Project. The Client indemnifies and agrees to keep swopplys indemnified against all liability, losses, or expenses incurred by swopplys in any way directly or indirectly connected with any breach of copyright and trademarks or any third party about any materials supplied by the Client for the Project. Conditional upon receipt of payment in full for the work performed by swopplys, swopplys grants to the Client a non-exclusive license to use swopplys’s copyright in works created by swopplys for the Project only, but no other purposes. Confidentiality The Client must keep confidential and must not (without swopplys’s written consent) use any ideas, systems, or processes, intellectual property communicated or made available by swopplys to the Client.
Similarly, swopplys agrees to maintain the confidentiality of the Client in all confidential materials supplied by the Client to swopplys for the Project. Final Proofs Final proofs will be presented by swopplys to the Client for approval before Completion of work which forms part of the Project. When the Client executes swopplys’s proof approval document, the Client is assumed by swopplys to have reviewed all aspects of the material presented and to be satisfied with it, and to have noted any exceptions in writing. If swopplys has submitted to the Client proof of the work, swopplys will not be responsible for any error in the work which appeared in the proof and which was not corrected by the Client before the Project was completed. The cost of additions or alterations to any proof submitted to a Client will be added to the price (unless changes to the proof are merely typographical corrections). Risk The risk in the Services passes to the Client at the time of delivery if swopplys delivers the Services to the Client’s premises or the Client collects the Services from swopplys’s premises. If the Services are not collected or delivered within 7 days of swopplys notifying the Client that the Services are ready for collection, the risk passes on this date. swopplys shall not be liable for insurance, freight, or loss or damage to Services in transit incurred in delivery or which have been left at swopplys’s premises. swopplys has no obligation to ensure any property of the Client in swopplys’s possession. The Client must pay the cost of any insurance arranged by swopplys at the request of the Client. If a Client leaves property in swopplys’s possession for more than 12 months, swopplys may dispose of or sell the property and retain any proceeds of sale as compensation for holding and handling the property. Title Title to the Services contained in any Project delivered to the Client under any contract between swopplys and the Client, shall not pass to the Client until payment in full of all Invoices and sums due to swopplys under such contract has been made to swopplys. The risk of damage to or destruction of any item delivered by swopplys to the Client shall pass to the Client upon delivery, notwithstanding that ownership of the item has not then passed, and the Client shall ensure that such item is adequately insured from the time of delivery. Until the Services have been paid for in full, the Client must not:
- Either sell the Services or use the Services in a manufacturing process, other than in the ordinary course of its business, in which case the Client grants to swopplys a security interest in either every payment to the Client for Services or the portion of every payment for the manufactured product that relates to the Services (both as proceeds of the Services and as original collateral); and
- Sell, assign, charge or otherwise encumber or grant any interest over any debts and other obligations which any third party may owe to the Client as a result of the use, manufacture, or resale of the Services.
The Client irrevocably authorizes swopplys at any time, to enter any premises upon which the Services are stored to enable swopplys to inspect the Services and, if the Client has breached these terms and conditions or suffers an Insolvency Event, to reclaim possession of the Services. The Client indemnifies swopplys against any liability to any person in connection with the entry or reclamation. The Client acknowledges and agrees that:
- These Terms and Conditions and any contract between the Client and swopplys may create a security interest in all present and after-acquired Services and any proceeds as security for the Client’s obligations to swopplys for the Personal Property Securities Act 2010; and
- swopplys is a secured party about the Services and any proceeds of the Services and is entitled to register its interest on the register as a security interest and if applicable, a purchase money security interest.
The Client undertakes to:
- Take all steps requested by swopplys to ensure its security interest in the Services and the proceeds is enforceable, and to perfect, or better secure the position of swopplys;
- Reimburse swopplys for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Security Register;
- Give swopplys not less than 14 days prior written notice of any proposed change in the Client’s name and/or any other change in the Client’s details.
The Client waives any rights to receive any verification statement or other notice required to be issued under the Personal Properties Securities Act 2010. Immediate Termination If:
- The Client becomes insolvent (within the meaning of the Corporations Act 2001) or makes any voluntary arrangement with its creditors, or
- A petition is presented or a resolution is passed to wind up the Client (other than for reconstruction or amalgamation as a solvent company), or
- A receiver or other external administrator is appointed over the whole or any part of the assets of the Client, or
- The Client shall otherwise cease trading, or
- Any distress, writ of execution, or other process is levied or enforced against any property of the Client.
Then in any such event, swopplys shall (without prejudice to any other right or remedy available to it) be entitled to terminate or cancel any contract between itself and the Client or suspend any further deliveries of the Project or Services without any liability to the Client and if any materials or Services have been delivered or supplied but not paid for, the price of such materials and Services shall become immediately due and payable, notwithstanding any previous agreement or arrangement to the contrary. About these Terms, swopplys may modify these terms or any additional terms that apply to a Service to, for example, reflect changes to the law or changes to our Services. You should look at the terms regularly. swopplys will post notice of modifications to these terms on this page. swopplys will also post notice of modified additional terms in the applicable Service. Changes will not apply retroactively and will become effective no sooner than 14 days after they are posted. However, changes addressing new functions for a Service or changes made for legal reasons will be effective immediately. If you do not agree to the modified terms for a Service, you should discontinue your use of that Service.
- If there is a conflict between these terms and the additional terms, the additional terms will control for that conflict.
- These terms control the relationship between swopplys and the Client. They do not create any third-party beneficiary rights.
- If you do not comply with these terms, and swopplys doesn’t take action right away, this doesn’t mean that swopplys is giving up any rights that swopplys may have (such as taking action in the future).
- If it turns out that a particular term is not enforceable, this will not affect any other terms.
These laws will apply to any disputes arising out of or relating to these terms or the Services. All claims arising out of or relating to these terms or the Services will be litigated exclusively in the federal or state courts of the United States, and you and swopplys consent to personal jurisdiction in those courts.