Terms of service.
1. OVERVIEW
1.1. The Agreement between you (Client) and us (Service Provider) is made up of these General Terms and Conditions (T&Cs), accepted Quote and the accompanying Proposal, along with any subsequent Proposal as agreed upon from time to time.
1.2. The Proposal contains the specific information that is relevant to our unique arrangement with you, and is designed to be read alongside the T&Cs.
1.3. If there is any inconsistency between the T&Cs and the Proposal, the content of the Proposal will prevail to the extent of the inconsistency.
1.4. Any variation to the Proposal must be mutually agreed upon in writing.
1.5. The Agreement will come into effect on the Commencement Date and continue for the Term.
1.6. Subject to the nature of the Services being provided, additional special conditions may apply as set out in the Proposal.
1.7. Both parties will ensure that they hold appropriate insurance where applicable, and agree to comply with all Applicable Laws, both during and following the Term.
1.8. You acknowledge that you have read and understood the T&Cs prior to accepting the Quote and paying the Deposit, and have sought professional and/or legal advice should you require clarification on any aspect of the Agreement.
2. SERVICES AND FEES
2.1. The total scope of the Services is as set out in the Proposal. If Services outside the scope are required, these will be quoted separately at our Hourly Rate.
2.2. A 50% Deposit is due on accepting the Quote within the timeframe specified on the invoice. The Services will not commence until the Deposit has been paid. The Deposit is non-refundable regardless of Service delivery.
2.3. The Deposit secures a start date for us to commence the Services. If you wish to delay the start date, you must provide us with a minimum of 14 days’ notice, otherwise a Restart Fee may apply.
2.4. All Fees will be payable via electronic funds transfer to our nominated bank account 7 days of receiving a tax invoice. You will receive a Tax Invoice from us prior to payment being due in each instance.
2.5. If you do not pay us any portion of the Fees within the stipulated timeframe, we may charge you interest at the Interest Rate set out in the Proposal. If unpaid Fees are recovered through an external agency, you acknowledge that you will be responsible for the costs involved in the recovery.
2.6. You agree to cover any out-of-pocket expenses incurred by us in the course of delivering the Services to you. These additional expenses will be approved by you in writing prior to being incurred.
2.7. Retainer clients will be billed monthly in advance.
2.8. We are entitled to vary our Hourly Rate during the Term on providing you with 14 days’ written notice.
3. DELIVERABLES
3.1. We agree to perform the Services and provide the Deliverables to the best of our ability and in accordance with the Key Dates.
3.2. You agree to provide us with all relevant Client Content and any other information we request from you in order to be able to perform the Services.
3.3. If the Services incorporate graphic design or copywriting services, we will provide you with an initial set of draft deliverables as per the quantity requested. Two rounds of changes to the draft deliverables are incorporated into the quoted Fees, and further changes will be subject to our Hourly Rate.
3.4. For website design services, the scope of work is as set out In the Proposal. The scope of work does not include correcting errors or deficiencies that are due to the improper use of the website or any third party add-ons, or provide additional technical support beyond the 14 day period, unless additional Fees are paid. These additional Fees will be quoted based on our Hourly Rate.
3.5. For social media management services, we will be guided by your instructions in terms of content, including brand voice and graphics which must be provided in writing.
3.6. You acknowledge that our ability to meet the Key Dates is partially dependent on how promptly your feedback is provided. You agree to provide written feedback within three days of our sending the draft Deliverables to you at any stage.
3.7. You acknowledge that if feedback is not provided within this timeframe, the draft Deliverables will be deemed to be accepted and the incorporation of any additional feedback will be subject to our Hourly Rate.
3.8. We will not be liable for any errors or defects in the Deliverables after they have been accepted by you, and the correction of any errors or defects after completion of the Deliverables will be subject to our Hourly Rate.
4. DELAYS AND NONCOMPLETION
4.1. We will not be liable for any failure to perform the Services or meet the Key Dates to the extent that it is caused by your noncompliance with your obligations under the Agreement.
4.2. If we are delayed or prevented from performing the Services or meeting the Key Dates, either due to your noncompliance with your obligations or a Force Majeure Event, we reserve the right to reschedule the Key Dates.
4.3. If we are unable to reschedule the Key Dates due to a Force Majeure Event, this shall not be deemed a breach of the Agreement.
4.4. If we are unable to perform the Services for any reason and are unable to reschedule the Key Dates, you are entitled to terminate the Agreement and receive a full refund of Fees paid, less deductions for Services already performed.
5. INTELLECTUAL PROPERTY
5.1. On full payment of the Fees, we will assign ownership rights (excluding Moral Rights) in the Assigned IP outlined in the Proposal to you. The Assigned IP may only be used for the Agreed Purpose.
5.2. Where additional costs are associated with said assignment, you acknowledge that you will be responsible for covering these.
5.3. We retain ownership of all Intellectual Property Rights in the Retained IP outlined in the Proposal, and grant you a limited licence to use it for the Agreed Purpose on full payment of the Fees.
5.4. You agree not to modify the Deliverables in any way, for any reason, without our prior consent.
5.5. You agree not to sublicence, publish, sell or otherwise provide the Deliverables to third parties.
5.6. We retain the right to reproduce the Deliverables, with reference to you (including your name, business name, logo and any trade marks), on websites, social media and any other media for recognition or professional advancement purposes.
5.7. You agree to credit us with performance of the Services and creation of the Deliverables wherever reference to them may appear, and ensure that any third party to whom you grant access to the Deliverables does the same.
5.8. You acknowledge that all Third Party Materials are the exclusive property of their exclusive owners, and where such materials are required to perform the Services, you agree to pay the costs associated with their use.
6. TERMINATION
6.1. We may terminate the Agreement with immediate effect if:
a. you do not pay the Fees by the Payment Dates/within the specified timeframe;
b. you fail to provide the Client Content or other information within a reasonable time of our request;
c. you otherwise breach any obligation under the Agreement;
d. we consider that mutual trust or confidence no longer exists; or
e. we determine that we are no longer able to perform the Services for any reason.
6.2. If we terminate the Agreement in accordance with clause 6.1(e), we will, at our sole discretion:
a. complete all work for which you have paid the associated Fees; or
b. refund Fees paid for work not yet performed, or not able to be performed as a result of termination.
6.3. You cannot request a refund if:
a. the reason for termination is outside of our control;
b. you change your mind;
c. you fail to clearly explain your needs to us; or
d. you insist on the Services being performed in a way that is against our advice.
6.4. Either party may terminate the Agreement on providing 30 days’ notice, or if the other party:
a. is unable to meet their obligations due to a Force Majeure Event for a period exceeding 30 days;
b. commits a material breach of the Agreement that is capable of remedy, and fails to remedy it within 7 days;
c. commits a material breach of the Agreement that is not capable of remedy; or
d. enters liquidation or administration, or becomes insolvent or bankrupt.
6.5. If the Agreement is terminated:
a. our obligation to perform the Services will cease;
b. you must immediately pay all Fees payable for the work completed at the date of termination;
c. provided you have paid all Fees due, we will provide you with all work completed up to the date of termination that comprises the Services;
d. any Fees paid for Services not yet performed may be refunded at our sole discretion; and
e. each party must return or destroy (at the other party’s request) all Confidential Information of the other party.
7. WARRANTIES AND INDEMNITIES
7.1. The Services and Deliverables are provided on an “as is” basis, without representation, warranty or condition of any kind (either express or implied).
7.2. The nature of certain Services means that we are unable to guarantee particular results, and any examples of Services or Deliverables provided to or created for other clients is a representation of potential results only.
7.3. The information we provide through our Services does not constitute professional business, financial or legal advice, regardless of whether we are licensed professionals of any type. We cannot be held liable for any action taken by you in reliance on the information we provide. You agree to consult with the relevant licensed professional/s prior to taking any action.
7.4. We are not responsible for any unforeseen advances in technology that may negatively impact the Services we provide.
7.5. You acknowledge that we cannot be held responsible for any negative impact on the Services or the Deliverables as a result of inaccuracies in information provided to us by you, nor the cost of rectifying such inaccuracies.
7.6. Any access to passwords or permission to use online accounts is granted at your own risk. You acknowledge that we cannot be held responsible for any loss incurred as a result.
7.7. We will use appropriately secure protections and protocols, however given the nature of electronic communication and data storage, we cannot be held responsible for third party interception, virus transmission, or issues with cloud-based storage facilities, including loss of data.
7.8. Any express or implied warranties or conditions relating to the Agreement or its subject matter that are not contained in the Agreement are excluded to the maximum extent permitted by law.
7.9. Nothing in the Agreement excludes, restricts or modifies any condition, warranty, right or remedy implied or imposed by any law that cannot be lawfully excluded, restricted or modified.
7.10. If any warranty or condition is implied into the Agreement and cannot be excluded, our liability is limited to resupplying the Services or payment of the cost of having the Services resupplied.
7.11. You agree to indemnify and hold us harmless from all claims and losses arising from damage, liability, injury or infringement that arise out of any information you supply to us or the Services we perform for you.
7.12. Neither party will be liable or held in breach of the Agreement for any failure to perform its obligations to the extent that said failure is caused by the other party’s noncompliance, negligence or misconduct.
7.13. Neither party will be liable to the other for any loss or damage arising out of the Agreement, whether foreseeable or not and however caused, with the exception of confidentiality and indemnification obligations.
7.14. We will not be liable for any loss or damage suffered by a third party in connection with the Agreement.
7.15. Each party agrees to take reasonable steps to mitigate any loss, damage or expense it may suffer or incur, arising out of anything done or not done by the other party in connection with the Agreement.
7.16. Our liability to you (including under indemnity) is capped to the return of all Fees paid, and will be reduced to the extent that your acts or omissions contribute to or cause the liability.
8. CONFIDENTIALITY AND PRIVACY
8.1. Each party agrees that, unless it has the prior written consent of the other party, it will:
a. keep the Confidential Information of the other party confidential at all times;
b. ensure that any person to whom Confidential Information is disclosed is aware of and complies with this clause; and
c. where there is prior consent, inform the other party of any proposed disclosure, including the form of disclosure, within a reasonable timeframe.
8.2. These obligations of confidentiality do not apply to any disclosure that:
a. is for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
b. is required by Applicable Law; or
c. relates to Confidential Information that is publicly available through no fault of the receiving party, or was rightfully received from a third party without restriction and without the breach of any obligation of confidence.
8.3. Any Confidential Information supplied to us that incorporates personal information will be dealt with in accordance with our Privacy Policy, which is available on our website.
9. MISCELLANEOUS
9.1. Relationship of Parties - We are independent contractors, and the relationship between you and us does not constitute that of a partnership, joint venture or employer and employee.
9.2. Exclusivity - We will be the exclusive provider of the Services during the Term, however we may offer similar services to others, solicit other clients and advertise our services at our discretion.
9.3. Subcontractors - We may use subcontractors to perform some or all of the Services. These subcontractors may be located outside of Australia.
9.4. Non-Disparagement - Without limiting either party’s rights, each party agrees not to disparage the other or provide negative feedback in a public forum (such as social media or an online review platform) at any time during or following provision of the Services. Where either party is dissatisfied, the issue must be dealt with in accordance with the provision of this Agreement relating to disputes.
9.5. Restraint Period - During the Restraint Period, you agree not to solicit, recruit or otherwise engage any of our subcontractors or employees on any basis. In the event of a breach of this clause, we will be entitled to an agency commission of 25% of the person’s starting salary with you, which will be payable within 7 days of the engagement.
9.6. Disputes - Should a dispute of any kind arise during the Term, you agree to contact us so that we can discuss the matter. Both parties will use their best efforts to resolve any dispute in good faith. Failing this, both parties will use their best efforts to resolve the dispute by engaging in mediation in the state where we reside at the time. All costs associated with the dispute, including legal, mediation or arbitration fees, will be borne by you.
9.7. Notices - Where a party gives notice, it must be done in writing to the email address specified in the Proposal, or by post to the residential or business address specified in the Proposal. For email, the notice will be considered delivered on the date it was sent, unless a delivery failure notice was received. For registered or express post, the notice will be considered delivered within 5 Business Days of being sent.
9.8. Entire Agreement - This Agreement constitutes our entire agreement with you about the subject matter. It supersedes all previous agreements, understandings and negotiations, whether written or verbal.
9.9. Governing Law - The formation, construction, performance and enforcement of the Agreement will be in accordance with the laws in force in the state where we reside. You and we submit to the exclusive jurisdiction of the courts of that state.
9.10. Execution - The Agreement will become binding on acceptance of the Quote and payment of the Deposit.
9.11. Amendment or Variation - Any amendment or variation to the Agreement is not effective unless agreed by you and us in writing.
9.12. Validity - If any provision of the Agreement is held invalid or unenforceable, it will either be severed from the Agreement or replaced by a valid or enforceable provision. If applicable, any new provision will take effect immediately. All other provisions will remain in effect throughout.
9.13. Assignment - You are not permitted to assign the Agreement or otherwise deal with any benefits or rights under it without our prior written consent. Conversely, we may do so without your consent.
9.14. Interpretation - All headings are for ease of reference and do not affect the interpretation of the Agreement. Words in the singular include the plural and vice versa, and references to “including” and similar words do not imply any limit.
DEFINITIONS
In the Agreement, the following terms have the stated meaning unless a contrary intention appears.
Acceptance: means the acceptance criteria set out in the Proposal.
Agreed Purpose: means the purpose set out in the Proposal.
Agreement: means these Terms and Conditions, the Proposal and each Subsequent Proposal.
Applicable Law: means any applicable statute, regulation, by-law, ordinance, policy or subordinate legislation in force from time to time in Australia, whether made by a State, Territory, the Commonwealth or local government that may apply to the Services or the party’s Obligations under the Agreement.
Deposit: means the amount set out in the Proposal.
Business Day: means a day other than a Saturday, Sunday or public holiday in the city of Our address in the Proposal.
Business Hours: means 9am to 5pm on any Business Day.
Cancellation Fee: means the fee that may apply for cancellation of the Services as set out in the Proposal.
Client Content: means all materials, information, photography, writings and other content, including social media content, provided by You to Us for use in the performance of the Services and/or incorporation into the Deliverables including that specified in the Proposal.
Commencement Date: means the date specified in the Proposal.
Confidential Information: means information of a confidential nature including information about a party’s business, operations, strategy, administration, technology, affairs, clients, customers, employees, contractors or suppliers and includes the terms of the Agreement but does not include any information in the public domain other than through a breach of confidence.
Deliverables: means all content developed by or for us and incorporated into and delivered as part of the Services including any presentation, written documentation, toolkits, guidelines, visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typography treatments and text, modifications to Client Content and Our selection, arrangement and coordination of such elements together with Client Content or Third Party Materials.
Feedback Dates: means the dates set out in the Proposal.
Fees: means the fees set out in the Proposal.
Force Majeure: means illness, injury, emergency, pandemic, epidemic, war, act of God, sudden event or other circumstance beyond our control.
GST: means goods and services tax chargeable under A New Tax System (Goods & Services Tax) Act 1999 (Cth).
Interest Rate: means the annual interest rate set out in the Proposal.
Intellectual Property Rights: means all current and future registered and unregistered rights in respect of patents, copyright, designs, circuit layouts, trade marks, trade secrets, know-how, Confidential information, inventions (including patents), domain names, discoveries, data, databases, business strategies, digital products, templates, and all other rights resulting from intellectual activity whether created before or after the Commencement Date and whether in Australia or otherwise, which is connected with the product or services of the Service Provider or is invented, created, produced and/or conceived by the Service Provider (independently or jointly with a third party) in the course of their engagement under the Agreement.
Key Dates: means the dates set out in the Proposal.
Moral Rights: means the moral rights granted under the Copyright Act 1968 (Cth) including the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship and any similar rights existing under foreign laws.
Our Assigned IP: means the Intellectual Property Rights in respect of the items listed in the Proposal.
Our Employees: means our employees, contractors, suppliers, advisors and personnel.
Our Obligations: means our Obligations under the Agreement.
Our Retained IP: means the Intellectual Property Rights that we retain ownership in and as set out in the Proposal.
Payment Dates: means the dates set out in the Proposal.
Proposal: means Proposal 1 incorporating the package agreed in the accepted Quote and any Subsequent Proposal.
Proposal 1: means the first document titled “Proposal” in relation to the Services.
Quote: means the quote setting out the packages for your selection and acceptance.
Restart Fee: means the additional fees set out in the Proposal.
Restraint Period: means the period of time set out in the Proposal.
Services: means the services set out in the Proposal.
T&Cs: means these General Terms and Conditions.
Tax Invoice: has the meaning as set out in A New Tax System (Goods & Services Tax) Act 1999 (Cth).
Term: means the term of the Agreement starting on the Commencement Date and ending when the Agreement ends or is terminated.
Third Party Materials: means all materials, including any documents, designs, photography and information of a Third Party.
You/Client: means the party set out in the Proposal [the Client] and includes your employees, personnel, agents, contractors and advisors.
Your Obligations: means your Obligations under the Agreement.
We/Us/Our/Service Provider: means the party set out in the Proposal [the Service Provider] and includes our employees, personnel, agents, contractors and advisors.