SMACK DESIGN PTY LTD ACN 609 642 542 of the Australian Capital Territory (the Designer)
AND The Client (as named in the Schedule)
IT IS AGREED:
1. Agreement: These are the terms and conditions upon which the Designer will provide Estimates and, if accepted by the Client, the basis upon which the Designer will supply the Services to the Client for the Price. Together with the Estimate, and any Schedule attached hereto these terms and conditions form “the Agreement”.
2. Binding Terms: By executing this Agreement or, if not fully or properly signed by the Client, by continuing to instruct the Designer to provide the Services after the Estimate has been given, the Client and the Guarantor acknowledge and agree that they are bound by this Agreement.
(a) The “Estimate” means the document which details the hourly rate estimates the professional fees and details of the scope of Services to be provided to the Client by the Designer for the development and delivery of the Concept.
(b) Unless specifically withdrawn by the Designer, an Estimate is valid for 30 days or such period as stated in it.
(c) A Client may accept the Estimate by:
(i) signing and returning a copy of this Agreement;
(ii) by confirming their acceptance of the Estimate in writing; or
(iii) by continuing to instruct the Designer to provide the Services.
(d) By accepting the Estimate the Client engages the Designer to deliver the Services (as described in the Estimate) in consideration for the Price.
(e) The Client acknowledges and agrees that the Estimate is an estimate of fees only, exclusive of Disbursements and based on the information provided by the Client at the time and is subject to change.
4. Duration: The Designer will commence providing the Services on the Commencement Date and continues for the Term, unless:
(a) otherwise agreed by the parties in writing; or
(b) terminated earlier pursuant to clause 23.
5. Deposit & Disbursements: Upon request, the Client must pay:
(a) a non-refundable deposit of 25% of the Price Estimate on the Commencement Date; and
(b) all Disbursements (which either separately or together exceed $500) in advance on the Commencement Date,
unless agreed otherwise by the Designer in writing.
6. Services: The Designer will deliver the Services to the Client in accordance with the scope of the Estimate, subject to any Variations and Additional Fees.
7. Price: The Client must pay “the Price” for the Services which includes:
(i) the lump sum stated in the Estimate; or
(ii) the professional fees incurred by the Designer calculated at the hourly rate for each hour (or part hour) that the Designer has spent delivering the Services (regardless of whether this is below or above the Price Estimate); and
(b) all Disbursements incurred by the Designer; and
(c) any Additional Fees.
8. Additional Work
(a) The Client acknowledges and agrees that the Estimate is based on the information provided by the Client at the time, and that additional services may be required in order to deliver the Concept (Additional Work).
(b) Where Additional Work is required to deliver the Concept, the Designer will promptly notify the Client in writing of:
(i) the Additional Work required to deliver the Concept; and
(ii) the Additional Fees payable for the Additional Work
(together “the Update”).
(c) Within 7 days of receipt of the Update, the Client must confirm in writing whether the Additional Work and Additional Fees are accepted or rejected.
(d) If the Client:
(i) accepts the Update or fails to respond to the Update in accordance with clause 8(c), the Update will be deemed to have been accepted and the Additional Work and Additional Fees will form part of the Services and the Price respectively; or
(ii) rejects the Update, the Agreement will be deemed to have been terminated and the Designer will render an invoice for the Services performed to date within 7 days of receipt of the rejection notice under clause 8(c).
(a) The Client may from time to time request to vary the Services, within the scope of the services ordinarily provided by the Designer (Variations).
(a) Any Client requested change to the Services (including any feedback given to a Working Concept) which, in the reasonable opinion of the Designer, is outside the scope of the Estimate, will be a Variation for the purpose of clause 9(a).
(b) The Designer will apply all reasonable endeavours to accommodate any reasonably requested Variations.
(c) The Client agrees to pay any Additional Fees incurred by the Designer for the Variations as part of the Price.
(a) The Client must pay any invoice rendered by the Designer for the Price (plus GST) by electronic funds transfer to the Designer’s nominated account within 7 days of the receipt of an invoice (the Due Date), unless agreed otherwise by the Designer in writing.
(b) The Designer may issue invoices to the Client at intervals determined by the Designer, including (but not limited to) on a fortnightly or monthly basis.
(c) If the Client fails to pay an invoice in accordance with 10(a) above:
(i) interest will accrue on the outstanding balance of the invoice at the rate of 10% per annum, calculated daily from the Due Date until the invoice is paid in full;
(ii) if the invoice remains outstanding for a period of more than 14 days after the Due Date, the Designer may suspend delivery of the Services until paid in full; and
(iii) if the invoice remains outstanding for a period of more than 28 days after the Due Date, the Designer may terminate this Agreement.
(a) The Client is responsible for proof reading and approving all drafts of the Concept (the Working Concept) sent to them by the Designer. The Client must take care to identify any errors or omissions, typographical or otherwise.
(b) Whilst care is taken by the Designer to avoid errors, by virtue of clause 11(a), the Client accepts and assumes liability for any and all errors which exist in the final version of the Concept.
3. Use of Client Property: The Client grants to the Designer for the Term, a royalty free licence to use any information or intellectual property supplied by the Client to the Designer in the course of the Services (Client Material), subject to the following conditions:
(a) the Client Material is to be used solely and exclusively for the purpose of delivering the Services;
(b) the Designer will not disclose the Client Material to any third party (other than its employees, agents or subcontractors) except for the purpose of delivering the Services;
(c) the Client warrants that it holds the appropriate copyright, trademark, intellectual property rights and any other permissions required for all Client Material and that the supply of the Client Material to the Designer is not in breach of any person’s copyright, trademark, intellectual property or other rights;
(d) the Client indemnifies the Designer from any and all claims and liability resulting from the Designer’s use of the Client Material;
(e) the Designer will take reasonable steps to ensure that the Client Material is stored securely; and
(f) the licence expires at the end of the Term.
4. File Formats:The Client will apply its best endeavours to ensure that all Client Material is delivered to the Designer’s nominated email in accordance with the following:
(a) all text files in electronic Word “.doc” or “.docx” or “.txt” format;
(b) all images or logos have a minimum of 300dpi in resolution, and/or are supplied in a vector file format if the Designer determines that it is required for the job;
(c) files are delivered in a compressed zip file, if they requested by the Designer.
5. Title to Working Concepts and the Concept:
(a) All right, title and interest in all Working Concepts remains with the Designer at all times, even after delivery of the final version of the Concept to the Client.
(b) Title to the Concept passes to the Client immediately upon full payment of the Price provided that Approval of the final version of the Concept has been given. Until full payment of the Price is made, title and all intellectual property rights in the Concept remain with the Designer.
(c) If this Agreement is terminated early in accordance with clauses 10(c)(iii), 8(d)(ii) or 23, title to the Concept remains with the Designer, notwithstanding that all outstanding invoices may have been paid in full.
6. Delivery & Risk: Upon full payment of the Price and provided that Approval of the final version of the Concept has been given:
(a) the Designer will outline the work to be delivered, and the file formats in which the final version of the Concepts will be provided to the Client;
(b) all risk in the Concept passes to the Client.
7. Approval of Final Design:
(a) The Designer will provide to the Client a final version of the Concept for Approval.
(b) Work on the Concept will be considered complete where the Client provides Approval to the Designer in writing.
(c) Where the Designer provides a final version of the Concept in accordance with clause 16(a) and the Client does not provide a response within 30 days, Approval by the Client will be deemed to be given and work on the Concept will be considered complete.
(d) Where work on the Concept is considered complete, the Designer will render a final invoice for any outstanding amount of the Price.
8. Licence of Concept: The Client grants the Designer a perpetual, world-wide, royalty-free licence to use and reproduce the Concept for the exclusive purpose of marketing and promoting the Designer’s business.
1. Client Obligations: The Client must not (until title to the Concept has passed to the Client):
(a) remove, deface or cover up any marks of identification or ownership from the Concept;
(b) misrepresent that the Client owns the Concept; or
(c) in any way assign, charge, lease or otherwise deal with, or create a Security Interest over, the Concept except with the prior written consent of the Designer.
2. Client responsibilities regarding Trade Marks: The Client acknowledges and agrees that:
(a) the Client is responsible for all appropriate trade mark searches to ensure that the Concept, any trade marks within the Concept and the Client’s use of the Concept does not infringe any other person’s trade mark rights;
(b) the Designer provides no warranty or representation that the Concept and any trade marks within the Concept will be capable of registration as a trade mark in Australia or any other jurisdiction;
(c) the Designer provides no warranty that the Concept and any trade marks within the Concept will not infringe the rights of an existing trade mark; and
(d) use of the Concept by the Client is at the Client’s risk.
3. Designer’s Warranties:
(a) The Designer warrants that they will perform the Services with due care and skill, but provides no further warranties in relation to the Services or the Concept.
(b) The Designer provides no guarantee that the final Concept will match earlier preview colours. The Client acknowledges and agrees that there may be differences between colours as they appear on a computer and the actual colour in printed form, and that the Designer is not liable for any such differences.
4. Liability: The Designer excludes liability for all claims, losses, damages and costs suffered by the Client directly or indirectly arising out of the Services and the Client’s use of the Concept.
5. Consumer Guarantees: The Designer’s liability for a breach of a condition or warranty implied by the Australian Consumer Law is limited to any one or more of the following (in the Designer’s absolute discretion):
(a) re-supplying the Services; or
(b) a refund of the Price (excluding Disbursements) provided that the Client provides an undertaking not to use in any way the Working Concepts or the Concept and title to the Concept is retransferred to the Designer upon payment of the refund.
(a) The Designer may terminate this Agreement with 7 days’ notice to the Client if the Client has breached this Agreement.
(b) Where the Designer terminates this Agreement in accordance with clause 23(a), the Client must pay the Price for all Services performed up to and including the date the termination takes effect.
(c) Either party may terminate this Agreement by giving to the other party 30 days notice in writing.
(d) If this Agreement is terminated in accordance with clause 23(c):
(i) the Designer will stop performing the Services from the date the termination takes effect; and
(ii) the Client must pay the Designer the Price for all Services performed up to and including the date the termination takes effect.
7. Personal Property Securities Act 2009:
(a) As security for the payment of the Price, the Client (and the Guarantor) grant the Designer a Security Interest over all present and after-acquired property of the Client (and the Guarantor). All present and after-acquired property referred to in this clause is hereby referred to as “Collateral”.
(b) The Designer may, in its absolute discretion, register the Security Interests over the Collateral at any time.
(c) The Client (and the Guarantor) agree to do all things and sign all documents necessary to facilitate the registration and enforcement of the Security Interest.
(d) The parties agree that this Agreement is a security Agreement for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA).
(e) Attachment of the Security Interest is immediate and, to the extent that the Security Interest relates to after-acquired personal property, the Security Interest attaches on the date that the Client or Guarantor (whichever is applicable) has the power to transfer rights in the after-acquired personal property to the Designer.
(f) The Security Interest in the Collateral has the same priority in relation to all money owed by the Client to the Designer and extends to all proceeds of the Collateral.
(g) The Client waives its rights to receive any notice under the PPSA (including notice of verification statement) unless the notice is required by the PPSA and cannot be excluded.
(h) The Designer has all powers granted to it by law to enforce the Security Interest, including all rights and powers of secured parties at common law and pursuant to the PPSA.
(i) The Client (and the Guarantor) agree to pay all costs (including legal costs and disbursements on an indemnity basis) incurred by the Designer in connection with the registration or enforcement of the Security Interest.
8. Guarantee: In consideration for the Designer entering into this Agreement with the Client, the Guarantor:
(a) guarantees to the Designer the due and punctual payment of all moneys to be paid by the Client, and guarantees the due and punctual performance of all of the Client’s obligations in this Agreement; covenants with the Designer that this guarantee will be a continuing guarantee and that the liability of the Guarantor will continue until all obligations of the Client under this Agreement are duly performed and that liability will not be abrogated, altered, prejudiced(a) or affected by any neglect or forbearance by the Designer; and
(b) indemnifies the Designer against any loss, damage, expense or cost which the Designer may incur in connection with any breach or default by the Client under the terms of this Agreement.
1. Force Majeure: The Designer will not be liable for any failure or delay in the supply or delivery of the Services where such failure or delay is wholly or partly due to any cause or circumstances whatsoever outside the reasonable control of the Designer including but not limited to war, strikes, lockouts, industrial disputes or unrest, government restrictions or transport delays, fire, power outages, failure attributable to hosting suppliers, breakdown of plant, theft, vandalism, riots, civil commotions, accidents of any kind or acts of terrorism.
2. Variation: This Agreement is not to be varied except in writing signed by each of the parties.
3. No Assignment: The Client and the Guarantor must not assign any of their rights or obligations under this Agreement to any person without the prior written consent of the Designer. Any such consent may be given or withheld in the absolute discretion of the Designer.
4. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the Australian Capital Territory and the Commonwealth of Australia and the parties submit themselves to the exclusive jurisdiction of the Courts of those jurisdictions and those Courts that have jurisdiction to hear any appeals from them.
5. Confidentiality: The Designer and Client agree that this Agreement and all related information and document(s) are confidential and will not be disclosed to unauthorised representatives or third parties without the other party’s prior consent, except to the extent disclosure is permitted by this Agreement or required by law.
6. Relationship: The Designer is and will always be an independent contractor to the Client for the purposes of the supply of the Services. Nothing in this Agreement creates or is intended to create or imply a relationship of agency, employment, partnership or joint venture between the parties or their respective agents, employees, subcontractors or assigns.
7. GST: All amounts in this Agreement are exclusive of GST, unless stated otherwise, and the Client must pay GST (and any other applicable taxes) on any taxable supply made to it under this Agreement in addition to any consideration payable for that supply.
8. Definitions: In this Agreement, a term described in the Schedule has the same meaning throughout the Agreement and:
(a) ‘Approval’ means final approval of the Concept by the Client given to the Designer in writing in accordance with clause 16(b) or 16(c);
(b) ‘Commencement Date’ means the later of:
(i) the date specified in the Estimate; or
(ii) the date this Agreement is accepted pursuant to clause 3(c).
(c) ‘Concept’ means the final design, brand, print, image, illustration, style guide, sculpture, map creation, infographics or other product or services as produced or delivered by the Designer for the Client as specified in the Estimate;
(d) ‘Delivery Dates’ means the agreed delivery dates for the Services as set out in the Estimate;
(e) ‘Disbursements’ includes any costs or expenses reasonably incurred by the Designer in the course of delivering the Services, including but not limited to: printing, scanning, photoshop manipulation, photography, copy writing, proofs, print management fees, courier and delivery charges, CDs, DVDs and document mock ups;
(f) ‘Price Estimate’ means the estimate of fees stated in the Estimate.
(g) ‘Security Interest’ means the security interest granted by clause 24 as defined by the Personal Properties Securities Act 2009 (Cth);
(h) ‘Services’ means the design services identified in the Estimate required to deliver the Concept, and includes any Additional Work and/or Variations.
(i) ‘Term’ means the period commencing on the Commencement Date and ending upon the earlier of:
(i) full payment of the Price and delivery of the Concept to the Client; or
(ii) the date this Agreement is terminated in accordance with clause 8(d)(ii), 10(c)(iii) or 23.