Terms & Conditions

2. DEFINITIONS

The words in this Agreement shall have the following meanings:

Agreement means the Design Brief and the accompanying terms and conditions.

Acceptable Revisions means revisions that do not require significant changes. For example, revisions such as change of colour, scale are considered acceptable revisions.

Pre-Existing Artwork means the pre-existing artwork copyright in which is owned by us and as set out in Schedule A of this Agreement.

Confidential Information means all information about our business that we have or may give to you in the course of providing the Services or in connection with this Agreement, including mood boards, initial concepts and designs, proposals, concepts created by us but not ultimately included, pricing information, strategy documents, drafts including the Drafts, regardless of how or in what form you receive that information, in each case save where the information is in the public domain other than as a result of a breach of confidence owed to us by any person (including you).

Deliverables means the final work resulting from the Services but excluding any drafts, concepts, initial stages nor works in progress.

Intellectual Property Rights means all rights to and interest in intellectual property throughout the world, such as any copyright, design, trade mark, trade name, confidential information, and trade secrets.

Personnel means a party’s employees, staff, contractors and agents.

Period means a Month, Quarter or Year as the case may be.

Sales Records means the detailed records of sales of any and all products incorporating the Deliverables or Pre-Existing Artwork that you must keep as required.

3. OUR RELATIONSHIP WITH YOU

3.1 Our contractual relationship with you under this Agreement commences on the Commencement Date of Agreement.

3.2 Each party enters this Agreement as an independent contractor. Nothing in this Agreement creates, constitutes or evidences a partnership, joint venture, agency, trust or employer/employee relationship between you and us, and a party may not make, or allow to be made, any representation that any such relationship exists between the parties. A party shall not have the authority to act for, or to incur any obligation on behalf of, any other party, except as expressly provided for in this Agreement.

3.3 You agree that this Agreement does not create an exclusive relationship between the parties. We can offer and provide design services to others, solicit other clients and otherwise advertise our services.

3.4 You warrant to us that by entering into this Agreement, you are not in breach of any of your other contractual obligations with third parties.

4. DELIVERY OF SERVICES

4.1 If you have engaged us for the Services, in consideration for your payment of the Service Fee, we will provide the Services in accordance with this Agreement.

4.2 The Services will be provided with reasonable skill, care and diligence.

4.3 We will provide the Services within a reasonable timeframe. However, you acknowledge and agree that all timelines provided are estimates only and creates no obligation on us.

4.4 Examples of works by other artists and designers can only be used for reference purposes, and, for copyright reasons, we cannot copy, modify, alter or vary the work of other artists and designers.

5. CLIENT CONTENT

5.1 On the Commencement Date, you grant us a perpetual, royalty-free, world-wide, unconditional, and irrevocable licence to use, develop, adapt and modify all Intellectual Property Rights in any materials that you provide to us in connection with this Agreement (Client Content) strictly to enable us to provide the Services and Deliverables.

5.2 You warrant that you own all Intellectual Property Rights in Client Content and or have the requisite rights in the Client Content to grant us the said licence.

5.3 You warrant that our use of the Client Content in accordance with your instructions and does not infringe any Intellectual Property Rights of any person.

6. REVISIONS

6.1 We will provide you with the Deliverables and you must accept or let us know if you require revisions to the Deliverables within 14 days of the delivery date (Acceptance Period).

6.2 We will only offer the number of Acceptable Revisions to the Deliverables that are set out under the Services.

6.3 If you require further revisions or if the revisions fall outside the scope of Acceptable Revisions, then this will attract further fees. We will advise you of the additional fees and seek your approval prior to incurring.

7. VARIATION OF SERVICES

7.1 Prior to providing you with the Deliverables, you may request a change to the Services (Varied Services) by providing written notice to us (Variation Request).

7.2 We may accept your Variation Request by:

(a) confirming in writing our acceptance of the Variation Request, including any required variation to the Service Fee to perform the Variation Request (Fee Variation); and

(b) adjusting the Service Fee to reflect the Fee Variation.

7.3 If we accept your Variation Request as per 7.2, we are under no obligation to perform the Varied Services until you agree to pay the updated Service Fee as adjusted by the Fee Variation in accordance with the payment terms.

8. YOUR OBLIGATIONS

8.1 You must clearly communicate your instructions and confirm them with us in detail before Services commence.

8.2 You must provide us all things reasonably necessary to enable us to provide the Services in a timely manner, including your feedback and comments.

8.3 You are responsible for final proofing and reviewing of Deliverables. In the event you have approved Deliverables, but if any errors (such as misspellings or typography errors) remain, you agree to incur the cost of correction. The cost will be a reasonable reflection of our time, resources and services to be determined at our sole discretion.

8.4 You warrant that you are solely responsible for ensuring that the products bearing the Deliverables or the Pre-Existing Artwork are safe, labelled correctly with no misleading information or advertising, fit for purpose, free from defects and do not pose any risks to humans, environments and animals. Under no circumstances, shall we be liable or responsible for any products you manufacture, distribute, supply or sell.

8.5 You agree to endeavour to exercise the Limited Licence in such a way that maximises commercial returns on the products that bearing the Deliverables or the Pre-Existing Artwork.

8.6 If we have granted a Limited Licence to you, you warrant that you will not sell, export or disseminate the products bearing the Deliverables or the Pre-Existing Artwork outside the Geography of Use.

8.7 If we have granted a Limited Licence to you, you must as soon as practicable and in any event within two (2) business days notify us of any actual, threatened or suspected infringement of any Intellectual Property Rights in the Deliverables or the Pre-Existing Artwork which comes to your knowledge or of which you become aware.

9. PAYMENT

9.1 You agree to pay us the fees when due and payable under this Agreement. If any payment has not been made in accordance with this Agreement, we may (at our sole discretion) not release the Deliverables or Pre-Existing Artwork to you.

9.2 If a payment is unpaid for 30 days after the due date for payment, then, without limiting our other rights, we may charge interest at the rate of 10% per annum on the unpaid amount. You acknowledge that such liquidated damages (being damages that are predesignated and agreed to as compensation) are fair and reasonable.

9.3 We further reserve the right to engage a solicitor or debt collector to recover any outstanding and payable amounts for our Services, in which case we will be entitled to recover legal or debt collection costs from you.

10. SALES RECORDS AND LICENCE REPORT

10.1 If we have granted a Limited Licence to you and you are required to pay a Royalty Fee, this clause 10 will apply.

10.2 You must keep detailed records of sales of any and all products and uses (whether tangible, digital or otherwise) featuring or incorporating the Deliverables or Pre-Existing Artwork (‘Sales Records’).

10.3 At the end of each Period, you will provide an itemised statement extracting data from your inventory management system (‘Licence Report’) to us, declaring the number of products incorporating the Deliverables or Pre-Existing Artwork sold in that Period and the calculation of the royalty payable to us. The Licence Report must be substantiated by attached Sales Records, such as a MYOB statement, which together must be provided to us within 14 days from the end of each Period during the Term.

10.4 You warrant that the Licence Report will be correct as at the date it is provided to us.

10.5 You expressly grant us the right to audit or to appoint a person to audit your accounting and sales records from time to time to verify the truthfulness of the Sales Records and the Licence Report. The costs of any audit will be borne by us.

11. CONFIDENTIALITY

11.1 You will (and will ensure your Personnel) keep confidential, and not use or permit any unauthorised use of, any Confidential Information without our prior written consent, except where disclosure is required by law.

11.2 Notably, you must:

(h) only access and use the Confidential Information for the purpose of us providing the Services;

(i) take all reasonable steps to maintain the strict confidentiality of the Confidential Information;

(j) ensure proper and secure storage is provided for Confidential Information while in your possession or under your control;

(k) take all precautions necessary to prevent disclosure of Confidential Information;

(l) not use or attempt to use the Confidential Information in any manner which may injure or cause loss, either directly or indirectly, to us, or which may be likely to do so;

(m) take reasonable precautions to prevent any unauthorised use, disclosure, publication or dissemination of Confidential Information;

(n) promptly notify us if you suspect, or become aware of, any loss or any unauthorised use, storage, copying or disclosure of the Confidential Information;

(o) immediately take all steps necessary to prevent or stop, and comply with all our reasonable directions in respect of, suspected or actual breaches of this Agreement; and

(p) if requested by us, immediately return to us, or destroy, delete and erase, all materials that contain Confidential Information.

11.3 This clause survives the termination of this Agreement. The return, destruction, deletion, erasure or retention of Confidential Information does not relieve you from any of your other obligations under this Agreement.

12. DELIVERABLES, PRE-EXISTING ARTWORK AND SAMPLES

12.1 If we have granted a Limited Licence to you and if we require samples of the products prior to market distribution, this clause 12 will apply.

12.2 The Deliverables or the Pre-Existing Artwork will be delivered to you in the agreed Format of delivery.

12.3 If you require physical delivery, you agree that all costs of shipping and postage will be at your expense.

12.4 After the Deliverables or Pre-Existing Artwork are delivered to you, you are solely responsible for the manufacture, production, use or otherwise of the product, form or purpose for which the Deliverables or Pre-Existing Artwork will be applied (Application).

12.5 Prior to the use, distribution or publication of the Application, you must provide us with samples of the Application (Samples) for our approval in the manner described in the Proposal. You must pay any delivery and shipping costs associated with providing us with the Samples.

12.6 If we approve the Samples, we will notify you in writing, which will not be unreasonably withheld. If we do not approve the Samples, we will likewise notify you in writing including the reason. Application must not proceed until this reason is addressed. You acknowledge and agree that the cost of addressing this reason is your sole responsibility.

12.7 You expressly agree that we will retain the Samples for our future marketing and advertising purposes and that we will not return the Samples to you.

12.8 You acknowledge and understand that we will not and do not provide any specific or specialist advice regarding product quality, use and performance.

13. INTELLECTUAL PROPERTY

13.1 Subject to clause 13.5, all Intellectual Property Rights developed, adapted, modified or created by us or our Personnel (including in connection with this Agreement or the provision of the Services), including in any Deliverables, Pre-Existing Artwork, drafts, draft documents or draft files, mood boards, design concepts and the like will at all times vest and remain vested in us.

13.2 Upon completion of the Services and in consideration of the Service Fee and any other fees payable, when due, under this Agreement, we will grant a Limited Licence, as defined in the Design Brief, in the Deliverables to you. Any other use of the Deliverables outside the Limited Licence is prohibited.

13.3 In consideration of the fees payable, when due, under this Agreement, we will grant a Limited Licence, as defined in the Design Brief, in the Pre-Existing Artwork to you. Any other use of the Pre-Existing Artwork outside the Limited Licence is prohibited.

13.4 If you wish to extend the scope of Limited Licence for the Deliverables or the Pre-Existing Artwork, then you must write to seeking a quote for the extension. We may, at our sole discretion, agree to extend the scope of Limited Licence for a fee.

13.5 If you wish to own copyright in the Deliverables or the Pre-Existing Artwork, you must pay us the Copyright Fee as defined in the Design Brief. In consideration of the Copyright Fee, we will absolutely assign all of our rights, title and interest in copyright in the Deliverables to you in accordance with the Copyright Act 1968 (Cth).

13.6 Notwithstanding the Limited Licence or Copyright Assignment, you acknowledge and agree that we retain all moral rights. This means you agree to attribute us as the creator of the Deliverables or the Pre-Existing Artwork in accordance with the Form of Attribution in the Design Brief. You further agree not to distort, edit or otherwise alter the Deliverables without our prior written consent unless such distortion or alteration is allowed under Variations to Deliverables or Pre-Existing Artwork in the Design Brief.

13.7 This clause survives termination of this Agreement.

14. MARKETING AND PROMOTION

1.4 1You acknowledge and agree that we will use the Deliverables or Pre-Existing Artwork for our marketing, promotional and portfolio purposes, including on our website and social media platform accounts.

14.2 You acknowledge and agree that such use is at our sole discretion, and that you do not have control over the manner and form of this marketing.

15. WARRANTIES

15.1 We warrant that:

(a) We own all the Intellectual Property Rights in the Deliverables or the Pre-Existing Artwork to grant a Limited Licence or to assign the Deliverables or the Pre-Existing Artwork;

(b) the Deliverables or the Pre-Existing Artwork will be or is our original work or that of our employees;

(d) We have not entered into any licence, agreement, arrangement or understanding with any third party which conflicts with this Agreement; and

(e) if the Deliverables or the Pre-Existing Artwork include the work of our independent contractors, we shall have secured agreements from such contractors granting all necessary rights, title and interest in the Deliverables or the Pre-Existing Artwork sufficient for us to grant the Intellectual Property rights in this Agreement.

15.2 We exclude all other representations, guarantees or warranties, whether explicit or implied.

15.3 Notably, due to variations in manufacturing, production processes, equipment, industrial methods and the inherent properties of materials, we make no guarantees about the final result of your Limited Uses or application of Deliverables or Pre-Existing Artwork. This is the responsibility of you and your manufacturer, supplier or producer.

15.4 We may, from time to time and without obligation, provide to you suggestions regarding the application of the Deliverables or Pre-Existing Artwork, including some manufacturing or production suggestions. However, you acknowledge and agree that such suggestions are general in nature and do not constitute professional advice or specialist knowledge – it is your sole responsibility to access such advice and specialist knowledge from the correct parties. If you rely on our general suggestions, you do so at your own risk and we will not be held liable.

15.5 Each of the warranties provided by one party to another party will survive the termination of this Agreement.

16. LIMITED LIABILITY

16.1.Under no circumstances, howsoever arising, will we be liable to you for any special, indirect, consequential or punitive damages, including, but not limited to that resulting from:

(a) Acts or omissions of you or your Personnel, including a breach of this Agreement by you or your Personnel;

(b) Events or circumstances beyond our reasonable control, such as delays caused by third parties;

(c) Lack of suitability or absence of any anticipated result, outcome or benefit of your intended use of the Deliverables or Pre-Existing Artwork; and/or

(d) any loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data.

16.2 To the maximum extent permitted by law our aggregate liability under or in connection with this Agreement, howsoever arising (including by reason of tort, negligence, breach of contract or otherwise), shall not exceed the sum of all fees paid to us under this Agreement.

16.3 This clause survives termination of this Agreement.

17. INDEMNITY

17.1.You will be liable for and agree to indemnify, defend and hold us and each of our employees and contractors harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly from:

(a) any information (including the Client Content) that is not accurate, up to date or complete or is misleading or a misrepresentation provided to us, our employees, contractors or agents;

(b) acts or omissions of you or your Personnel, including any breach of this Agreement by you, your employees, contractors or agents; or

(c) any claim by a third party that any use by us of the information, works, material or Client Content supplied by you infringes that third party’s rights in any way.

17.2 You agree to co-operate with us (at your own expense) in the handling of any disputes, complaints, investigations or litigation that arise as a result of your use of our Services including but not limited to disputes, complaints, investigations or litigation that arises out of or relates to incorrect information we have given you or you have given to us, respectively.

17.3 This clause survives termination of this Agreement.

18. TERMINATION

18.1.This Agreement will automatically terminate if either of the conditions are satisfied:

(a) The Term of the Limited Licence is not perpetual and the Limited Licence has not been renewed or extended. In this case the Agreement will terminate on the expiration to the Sell-off period;

(b) The parties enter into a new agreement in relation to the Deliverables or Pre-Existing Artwork. In this case, the Agreement will terminate on the day the new agreement is entered into; or

(c) Upon the completion of the Services if we agree to assign the copyright in the Deliverables to you. In this case, the Agreement will terminate on the day the copyright is assigned to you; or

(d) If we agree to assign the copyright in the Pre-Existing Artwork to you. In this case, the Agreement will terminate on the day the copyright is assigned to you.

18.2 We may terminate this Agreement immediately via written notice if you are in breach of a material term in this Agreement.

18.3 We may also terminate this Agreement immediately via written notice if you become insolvent if you enter into liquidation or administration or if you are unable to pay your creditors.

18.4 If you terminate the Services after the Commencement Date, but before we have provided any Deliverables, we may retain amounts paid to us by you (such as the deposit) and are entitled to be paid amounts for work completed up to the date of termination but not yet invoiced or paid, and any such amounts will represent a genuine amount of our costs, expenses and losses.

18.5 If you terminate the Services after we have provided you with the Deliverables, we are entitled to retain the Deposit and you must immediately pay to us the Service Fee.

18.6 If we cannot, for any reason, complete the Services or provide the Deliverables, we may terminate the Services before we have provided any Deliverables, and we will refund you the Deposit.

18.7 Termination may also occur by:

(a) us, if you breach a term of this Agreement and that breach has not been remedied within five (5) working days of being notified by us; or

(b) you, if we breach a term of this Agreement and that breach has not been remedied or overcome within five (5) working days of being notified by you.

18.8 On termination of this Agreement,:

(a) You must immediately return to us all property, including Confidential Information, belonging to us or our Personnel;

(b) We will retain any amounts paid to us by you;

(d) You must not use any Intellectual Property Rights (including copyright) belonging to us or our Personnel.

18.9 Termination of this Agreement will not affect any rights or liabilities which a party has accrued under it. This clause survives termination of this Agreement.

19. DISPUTE RESOLUTION

19.1.If there is a dispute between the parties in relation to any matter connected with this Agreement, the representatives of the parties must meet in good faith to seek to resolve the dispute by agreement between them. The parties agree to follow this procedure before resorting to any legal proceedings, save that nothing in this clause prevents either party from seeking urgent injunctive relief.

20. MATERIAL TERMS

20.1 The material terms of this agreement are Payment (clause 9); Client Content (clause 5); Sales Record and Licence Report (clause 10); Confidentiality (clause 11) and Intellectual Property (clause 13).

21. SPECIAL CONDITIONS

21.1 The Special Conditions set out in the Design Brief prevail over all other terms.

22. PRECEDENCE

22.1 In the event of a conflict between the Design Brief and the terms and conditions, then the clauses of the Design Brief will take precedence.

22.2 In the event of a conflict between the confidentiality provisions of this Agreement and the confidentiality provisions of any other agreement, the confidentiality provisions that affords us with the greatest degree of protection will prevail.

23. HEADINGS

23.1 Any headings in this Agreement are for the convenience of reading only and do not affect the interpretation of this Agreement.

24. GENERAL

24.1 Any notice given under this Agreement must be in writing addressed to the relevant representatives as set out in the Design Brief. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

24.2 We may assign, license or sub-contract our rights and obligations under this Agreement without your consent.

24.3 If any provision of this Agreement is held to be invalid, illegal or unenforceable, it will be severed and the remainder of the Agreement will remain in full force and effect.

24.4 This Agreement contains the entire understanding and agreement between the parties in respect of its subject matter.

24.5 This Agreement may only be amended in writing and as signed by all parties.

24.6 This Agreement shall be construed in accordance with and governed by the laws in force in the State of Queensland, Australia, and each party irrevocably submits to the exclusive jurisdiction of the courts of Queensland, Australia.