The Parties Agree
In these Engagement Terms:
Acts means the Trade Practices Act 1974 and any other applicable consumer protection legislation in force from time to time;
Confidential Information means the terms of these Engagement Terms and the terms of any other agreement between We and You, confidential information relating to the business or financial affairs of either party and any information, document, material or item which is designated by either party as confidential or relates to either party and is by its nature clearly confidential; and
GST means any consumption tax imposed by the government, whether at point of sale or at some other specified occurrence, which operates during the term or in the renewal holding over period and includes (without limitation) a goods and services tax, a broad-based consumption tax or indirect tax and value added tax.
Quotation means the document issued by Us to You that specifies the scope of the services, the associated fees and payment terms. The document will ordinarily be entitled “Quotation” however, we do not need to title all such documents with this term.
2. Commission for Artwork or Other Services
We will perform illustrative or other services specified in a Quotation (“Services”) in accordance with these Engagement Terms. Such Services shall include but not be limited to the commission of artwork, illustrations and related services as shall be requested by You and accepted by Us from time to time.
3. Fees and Charges
You must pay fees specified in a Quotation in the manner specified on the Quotation. All additional expenses incurred by us will be additional to those amount specified in the Quotation.
Any amount payable by You under these Engagement Terms is payable by You to We within fourteen (14) days of the day We issue an invoice. Payments not received within this timeframe will be subject to interest at a rate 10% p/a.
4.1 Other Taxes
Unless expressly stated to the contrary, all fees, costs and charges referred to in these Engagement Terms are exclusive of all taxes, duties and imposts.
If We is or will be liable for any taxes, duties or imposts (including GST) on or relating to these Engagement Terms or anything done pursuant to these Engagement Terms (excluding income tax) then You will pay We an amount equal to that liability at the time that it pays any fees, costs or charges to which the liability relates.
5. Ownership of Commissioned Works
Unless otherwise expressly stated in the Quotation, We retain ownership of the copyright and all intellectual property rights subsisting in any works including any outputs resulting from the Services. Where a Quotation specifies the transfer of ownership to You, an additional fee will be payable and any such transfer will be conditional upon receipt of all amounts owed by You to Us.
6. Time Lines
We will use our reasonable endeavours to adhere to all timelines specified in a Quotation, however, our ability to meet such timelines is conditional upon Your timely supply of reference materials, review of proofs and other items reasonably requested by Us.
Unless these Engagement Terms expressly provides otherwise:
all express and implied conditions, warranties or liabilities (including liability as to negligence) regarding the condition, accuracy, suitability, or quality of goods or services supplied under these Engagement Terms or any Quotation are negated and excluded; and
We gives no condition, warranty, undertaking or representation in relation to the condition, accuracy, suitability, or quality of goods or services supplied under these Engagement Terms or any Quotation.
The liability of We to You for a breach of these Engagement Terms, statutory causes of action, common law or tort (including negligence) in any way arising from these Engagement Terms or a Quotation will be limited to the following extent:
notwithstanding anything in this clause 7(b) or any other clause in these Engagement Terms, We will not be liable for any direct or indirect lost profit or revenue, exemplary damages, deletion or corruption of electronically or digitally stored information, or without limiting the foregoing, any indirect or consequential loss or damage howsoever described or claimed;
otherwise in respect to all other claims Our liability to You for all other proven loss and damage is limited to $2,000 for any one claim and for an aggregate of all claims to the amounts paid pursuant to these Engagement Terms by You to Us in the 3 months prior to Your notification to Us of Your then current claim.
Nothing in these Engagement Terms excludes, restricts or modifies any condition, warranty, right or remedy which is conferred on You by the Acts. Where We breaches a condition or warranty which has been implied by the Acts, its liability for breach will be limited to (where permissible by the Acts):
in the case of the supply of goods: the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; and
in the case of the provision of services: the supplying of the services again, or the payment of the cost of having the services supplied again, whichever We see fit to provide.
The rights and remedies which You have under these Engagement Terms are in addition to all the rights and remedies which You have under the Acts.
Clauses 7(b) to 7(d) will survive expiration or termination of these Engagement Terms and will continue to the benefit of and be enforceable by Us.
You may terminate any commissioned work at any stage, provided that such termination shall result give rise to a right for Us to invoice You for: (a) 25% of the amounts specified in the Quotation if termination occurs prior to delivery of a rough draft; (b) 75% of the fee specified in the Quotation if termination occurs following delivery of the draft but prior to the final artwork delivery; and (c) 100% of the fee specified in the quotation if termination occurs any time after delivery of the final artwork. Any rejection of artwork shall we treated as if You have terminated the relevant commissioned work.
You and We must keep confidential all Confidential Information; and not disclose any Confidential Information to any person, except: (i) as required by law; (ii) with the prior written consent of the other party; (iii) to its Related Body Corporates (as defined in the Corporations Act 2001) employees, contractors and agents to whom disclosure is necessary for the purposes of these Engagement Terms and who have first undertaken to keep the Confidential Information confidential and not to use it except for the purposes of these Engagement Terms.
In the event of any uncertainty as to whether any information is Confidential Information such information will be deemed to be Confidential Information and will be deemed not to be within the public domain, unless advised by the other party in writing to the contrary.
You and We will not use or permit the use of any Confidential Information except for the purposes of and in accordance with these Engagement Terms.
9.3 Breach of Confidence
You and We must promptly notify the other party if it becomes aware of any unauthorised use or disclosure of all or any part of the Confidential Information and must give the first party all reasonable assistance in connection with any action, demand, claim or proceeding which the first party may institute in connection with that unauthorised use or disclosure.
9.4 Equitable Relief
You and We acknowledge that the other party will be entitled to equitable relief against the first party (in addition to any other rights available under these Engagement Terms or at law) if the first party breaches the obligations contained in this clause 9.
9.5 Obligations to Continue
This clause 9 will survive expiration or termination of these Engagement Terms.
10.1 Relationship of the Parties
The sole relationship of the parties under these Engagement Terms shall at all times be one of independent contractors. Neither party shall have any authority to assume or create obligations on behalf of the other except as provided in these Engagement Terms nor take any action that has the effect of creating the appearance of such party having such authority or leading any third party to believe or assume that any relationship of agency exists.
10.2 Electronic Information
The parties acknowledge and agree that business may be undertaken by the electronic exchange of information and the provisions of these Engagement Terms will be read and construed to give effect thereto.
10.3 Governing Law
These Engagement Terms is governed by and will be construed in accordance with the laws of Victoria, Australia.
irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of Victoria, Australia and any courts which have jurisdiction to hear appeals from any of those courts; and
waive any right to object to any proceedings being brought in those courts.
10.5 Entire Understanding
This document embodies the entire understanding and agreement between the parties as to the subject matter of these Engagement Terms.
A notice, demand, certification or other communication under these Engagement Terms must be in writing, in the English language and may be given by an agent of the sender.