Terms and Conditions

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RECITALS:

The Agency aims to provide creative, strategy, advertising, design, print and multimedia services to a broad client base, from small retail business, through to corporate, national and international organisations.
The Client wishes to engage the Agency to conduct works and provide services on behalf of the Client on the terms and conditions outlined in this agreement.

OPERATIVE PART:

THE PARTIES AGREE that:

1. Definitions

Agency’s Fee means the fees set out in Schedule 1;
Agreement means this Agreement, including the Background and Schedules, as amended from time to time;
Commencement Date means the date stated in Schedule 1;
Confidential Information means facts or knowledge that are not in the public domain, including, but not limited to, information relating to the general business operations within the Client or the Agency, such as:
a) financial statements;
b) actual and proposed client lists, customer lists, licensee lists and distributors lists;
c) cost and selling price information;
d) trade secrets, know-how, work-in-progress, services and intellectual property;
e) business and marketing plans; and
f) third party information disclosed by one party to the other party in confidence.
Delivery Date means the date that acceptance is given under clause 10;
Parties means the Agency and the Client;
Schedules means Schedule 1 and Schedule 2 to this Agreement;
Services means the services to be performed by the Agency set out in Schedule 2;
Works means the works to be created by the Agency and assigned to the Client as set out in Schedule 2.

2. Interpretation

In this Agreement, unless the context otherwise requires:

the singular includes the plural and vice versa, and a gender includes other genders;
a reference to the singular includes the plural and vice-versa;
another grammatical form of a defined word or expression has a corresponding meaning;
a reference to a clause, paragraph, schedule or annexure is a reference to a clause or paragraph of, or schedule or annexure to, this Agreement, and a reference to this Agreement includes its schedules and annexures;
a reference to a document or agreement includes the document or agreement as novated, altered, supplemented or replaced from time to time;
all references to $ or dollars are references to Australian Dollars.
a reference to a person includes the person’s executors, administrators, successors and permitted assigns and substitutes;
a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
a reference to a statute, ordinance, code, other law or international convention includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
any obligation in this Agreement on a person not to do something includes an obligation not to agree or to allow that thing to be done;
the meaning of general words is not limited by specific examples introduced by “including” and similar expressions;
a reference to writing or written includes any method of reproducing words, figures, drawings or symbols in a visible and tangible form and includes communication by electronic mail; and
the word “including” is not a word of limitation and means ‘including without limitation’.

3. Term of Agreement

This Agreement commences on the Commencement Date and continues until the Agency completes the Services or this Agreement is terminated in accordance with clause 15 (‘Term’).

4. Agency’s Fee

In consideration for the Agency providing the Services the Client will pay the Agency all fees in the manner set out in Schedule 1.
Where Schedule 1 provides for an upfront payment to be paid by the Client prior to the Agency commencing providing the Services, that payment is strictly non-refundable.
The Client will reimburse the Agency for such out-of-pocket expenses incurred by the Agency in the course of providing the Services.
Prices are provided in Australian dollars and all payments must be made in Australian dollars, unless otherwise and specifically stated.

5. Assignment of Copyright

The ownership of copyright in all Works produced by the Agency which are not ultimately used remains with the Agency. The Agency also retains copyright in the following:
a) Draft concepts;
b) Working notes and any other internal written materials;
c) Preliminary drafts, drawings illustrations, photographs, and designs;
d) Preliminary electronic works including website drafts, source code development tools, programs, multimedia
e) applications and programmers’ notes;
f) Draft videos, sound recordings, outtakes, storyboards, scripts, screenplays, and character lists;
g) Designs which are rejected by the Client; and
h) Source files.
No copyright or any other intellectual property rights in the materials will be licensed to the Client until the Agency has been paid in full all of the Agency’s Fee.
Once the Agency’s Fee is paid in full by the Client, the Agency will grant to the Client an exclusive, worldwide, royalty free licence to use the Works, limited to the purpose and media described in the Services set out in Schedule 2. The Agency’s Fee is based upon this limited licence of copyright. If the Client requires a more encompassing licence or assignment, this must be the subject of further negotiations between the Client and Agency.
The Agency warrants that:
a) The assignment of copyright will only be granted if the Agency provides this in writing.
b) In all other respects, the Agency retains copyright and all other intellectual property and moral rights (including the right of adaptation) in the Works.
c) the Agency Works are original works created by the Agency and/or licensed by the Agency;
d) to the extent that any employer, employee, officer, agent or commissioner of the Agency contributes to the creation of Works, the Agency has obtained or will obtain a written assignment of Intellectual Property Rights from that person;
The Agent will indemnify the Client against all claims and actions against the Client for infringement of any patent, trade mark, registered design or copyright arising from the use of the Work provided always that this indemnity shall not apply to any infringement which is due to:
a) A breach by the Client of clause 5.1, 5.2 and/or 5.3; or
b) The use of the Work in a manner outside the Services specified at Schedule 2 or for a purpose or in a country not specified or disclosed to the Agency in writing prior to this Agreement; or
c) Any infringement which is due to the use of the Work in association or combination with any other article not supplied by the Agency and provided also that this indemnity is conditional on the Client giving to the Agency the earliest possible notice in writing of any claim being made or action threatened or brought against the Client, and on the Client permitting the Agency at the Agency’s expense to have the sole conduct of all correspondence, negotiations and litigation that may ensue, and on the Client giving the Agency all reasonable assistance for the purposes of such correspondence, negotiations and litigation and doing nothing which would or might vitiate any policy of insurance or insurance cover which the Agency or the Client may have in relation to such infringement and taking such steps as the Agency may reasonably require to mitigate or reduce all such claims and actions against which the Agency indemnifies the Client under this clause 5.5.

Self-Promotion by Agency

The Agency retains the right to use and reproduce the Works for the purposes of:

Promoting the Agency’s skills and services, including by entering the Works in competitions or design publications relating to professional quality and recognition in the Agency’s industry; and
Display of the Works in the Agency’s portfolio of work, including for the purpose of soliciting new work from third parties.

Moral Rights

In relation to all materials in which copyright subsists produced by the Agency in the course of providing the Services, the Client agrees that it will not engage in acts or omissions that are contrary to any of the present or future moral rights of the Agency under Part IX of the Copyright Act 1968 (Cth).

Typeface

If, in its provision of the Services, the Agency is required to create an original typeface for use in the Works, then the Agency retains all rights in relation to that typeface;
The Agency may, at its discretion, licence any original typeface referred to in the preceding clause to be used by the Client or any third party. Any such licence is not and does not form part of this Agreement;
If, in the provision of the Services, the Agency is required to use an original typeface belonging to a third party, then the Client must:
a) pay any licence fees to the third party; and
b) acquire a license to use the typeface.

Client’s Performance

The Client must provide the Agency with clear and concise written instructions in a timely manner to allow the Agency to perform the Services in accordance with Schedule 2.

Acceptance

The Agency will deliver the Works to the Client:
a) upon completion of the Works; or
b) otherwise in accordance with the milestones set out in Schedule 1.
Following receipt of the Works the Client agrees within 14 days of delivery to examine the Works and to give the Agency notice of acceptance or rejection of the Works or advise the Agency of the changes or revisions which the Client requires to be made. All changes or revisions will be charged to the Client by the Agency on a time and materials basis as set out in Schedule 1. This clause is subject to Clause 11(b) herein;
The day upon which the Client gives the Agency notice of acceptance of the Works is deemed to be the Delivery Date.

Expansion of the Scope of Work

Work falling outside of the scope of the Services requested by the Client, either orally or in writing, will incur charges additional to the Agency’s Fee. Work falling outside of the scope of the Services includes, but is not limited to:
a) additions to the list of Works;
b) alterations to text supplied by the Client for use in the Works;
c) additional drafts required in the provision of the Services;
d) changes to the Client’s instructions or the brief;
e) changes to any of the Works after the Delivery Date;
f) additional consultations; and
g) conversion, adjustment or manipulation of images;
Where additional work requested outside of the scope of the Services, is in the sole and exclusive discretion of the Agency, substantial, a Schedule of the additional Services and the additional Works must be annexed to this Agreement. The provision of those Services and Works will be subject to the terms of this Agreement;
Urgent work requested outside of the scope of the Services which is required outside of ordinary business hours will be charged at an additional 50% of the Agency’s Fee as set out in Schedule 1 (‘Urgent Charges’).

Retrieval of Work

The Agency retains electronic archives of completed Works for a period of no longer than seven years. If the Client requests retrieval and delivery of the Works after the Term has expired, and the Agency provides those services, then the Client must pay the Agency a service charge for those services as outlined at Schedule 1 (‘Service Charges’);
To the fullest extent permitted by law, the Agency accepts no liability for any loss or damage that may occur to archived work.

Client’s Undertakings and Warranties

By signing this Agreement the Client undertakes and warrants that:

the Client will exercise control over the Works. The Agency will exercise reasonable care, honesty and diligence in providing the Services. The Client nonetheless warrants that it is responsible for ensuring that the Works are not contrary to law, including ensuring that:
a) the Works do not infringe the copyright or moral right of any person in relation to any material the Client has provided to the Agency;
b) the Works do not infringe the trade mark rights of any person, including by undertaking trade mark searches where appropriate;
c) the Works are not by law defamatory of any person; and
d) the Works do not constitute conduct that is in breach of the provisions of the Competitions and Consumer Act 2010 (Cth) or that gives rise to an action in passing off, including by undertaking trade practices clearances where appropriate;
the Client must ensure that all statements purporting to be facts in the Works are true and correct and that no advice or instructions in the Works will if followed or implemented by any person cause loss, damage or injury to them or any other person;
the Client will use and publish the Works at its own risk; and
the Client will indemnify the Agency against all claims arising from the Agency’s use of any information or documents supplied by the Client or for any act or thing done by the Agency on the Client’s instructions or with the Client’s approval.

Liability

Although the Agency will take all care in providing the Services, it accepts no liability to the fullest extent of the law regarding:
a) any consequential loss, damage or injury, however it may arise; or
b) any punitive, additional or exemplary damages;
If the Agency is found to be liable for any claims, losses, damages, costs or injuries arising out of this Agreement, the quantum of the sum of all liability or liabilities is strictly limited to the value of this Agreement.

Termination for Breach

Without prejudice to any other right or action or remedy, either party may terminate this Agreement, by written notice to the other with immediate effect, if:
a) the other party commits a breach of this Agreement or is in default of any warranty and the defaulting party fails to correct such breach or default within 7 days of receiving notice specifying such breach or default;
b) the other party is insolvent or otherwise unable to pay its debts as and when they fall due; or
c) an administrator, trustee in bankruptcy, receiver, liquidator or controller is appointed to the other party;
If the Agreement is terminated under the preceding clause, the Client agrees to pay the Agency all amounts accrued and owing in accordance with Schedule 1 within 14 days of that termination.

Termination of Services

The Agency may terminate this Agreement for any reason whatsoever by giving the Client 30 days’ notice in writing;
If the Agency terminates the Agreement under the preceding clause, the Client agrees to pay the Agency all amounts accrued and owing in accordance with Schedule 1 within 14 days of the expiry of the period of notice.

Confidentiality

The parties agree to remain bound by the terms of the Confidentiality Agreement entered into on the date listed at Schedule 1 to this Agreement and both agree that the terms of that agreement are essential terms and constitute a collateral agreement to this Agreement.

Disputes

Except where the party seeks urgent interlocutory relief, if a dispute arises out of or relates to this agreement (including any dispute as to breach or termination of the agreement) (Dispute) neither party may commence any court proceedings relating to the Dispute unless it has first complied with this clause 18.
A party claiming that a Dispute has arisen under or in relation to this agreement must give written notice to the other party specifying the nature of the Dispute. On receipt of that notice by that other party, the parties must endeavor in good faith to resolve the Dispute expeditiously using the mechanism set out in sub-clause 18.3.
The parties must first endeavor to resolve the dispute using the mediation procedure set out in this clause 18.3:
a) The parties must jointly appoint a mediator and agree on the mediator’s remuneration.
b) The parties must observe the instructions of the mediator about the conduct of the mediation.
c) If the Dispute is not resolved within 10 Business Days after the mediator is appointed or any other time that the parties agree to in writing, the mediation ceases.
d) Each party must pay an equal share of the costs of the mediation to the mediator and each party agrees to indemnify the mediator against liability in respect of the mediation of the Dispute.
e) If the Dispute is resolved, each party must sign the terms of the mediation agreement and the terms are binding on the parties and override the terms of this Agreement if there is any conflict.
f) The mediation procedure is confidential and:
i) written statements prepared for the mediator or for any party; and
ii) any discussion between the parties and between the parties and the mediator before or during this procedure, cannot be used in any arbitration or legal proceedings.

General

This agreement is governed by the laws of Victoria and the parties submit to the jurisdiction of that State.
All notices and consents required or permitted to be given under this Agreement must be in writing and given by personal services, pre-paid postage, email or facsimile transmission at the addresses of the parties set out in this Agreement or to such other address as either party may designate to the other by written notice;
This Agreement must not be assigned or otherwise transferred without the prior written consent of the Parties;
This Agreement may be modified only in writing and signed by duly authorised persons for both parties;
If any provision of this Agreement is held to be invalid in any way or unenforceable, the remaining provisions are not in any way affected or impaired and this Agreement must be construed so as to give effect to the intent of the parties as it was originally executed;
Clauses 5, 7, 13, 14, and 17 survive termination of this Agreement.