Terms and Conditions
GENERAL DESIGN STUDIO
1. OVERVIEW
1.1 This Agreement is between Shellmade Studio (herein referred to as ‘Shellmade Studio, ‘We’, ‘Us’ or Service Provider’) and the Client (herein also referred to as ‘You’ or ‘Your’).
1.2 This Agreement consists of these General Terms & Conditions (T&Cs) along with any subsequent Proposal between the parties from time to time (Agreement).
1.3 This Agreement sets out the terms and conditions under which the Client will engage the Service Provider to provide the Services to the Client. The Service Provider will provide the Client with the Services as set out in the Proposal.
1.4 If there are any inconsistencies between the T&Cs and the Proposal, the Proposal prevails to the extent of the inconsistency.
1.5 Subject to the nature of the Services being provided, additional special conditions may apply as set out in the Proposal.
1.6 Any variation to the Proposal must be agreed upon in writing by all parties.
1.7 The Agreement will start on the Commencement Date and continue for the Term, unless terminated prior to that date in accordance with these Terms.
2. CLIENT OBLIGATIONS
2.1 The Client acknowledges that they:
a) have full power, capacity and authority to enter into and perform their obligations under the Agreement;
b) have read and understood the T&Cs and the Proposal prior to signing the Agreement; and
c) have sought professional and/or legal advice should they require clarification on any aspect of the Agreement.
2.2 Timely and Accurate Information: The Client agrees to provide all necessary and accurate information, documentation, and data relevant to the project in a timely manner as set out in this Agreement.
2.3 Feedback and Approvals: The Client will promptly review and provide feedback on deliverables and will approve or request revisions within the agreed-upon timeframe as set out in this Agreement.
2.4 Material and Resource Availability: The Client will ensure the availability of any required materials, items, or resources necessary for the successful execution of the Services.
2.5 Decision-Making: The Client will make timely decisions on design choices, selections, and other relevant matters to prevent delays in the project.
2.6 Payment: The Client will ensure payments of Fees will be made on time and as set out in this Agreement.
2.7 Communication: The Client will maintain open and effective communication with the Service Provider, promptly addressing any questions, concerns, or requests for information.
2.8 Password Access: The Client agrees to furnish the Service Provider with essential password access to the designated accounts, exclusively for the purpose of carrying out the agreed-upon services. The Client retains the privilege to modify or withdraw password access at their discretion. The Client acknowledges and agrees that any resultant impact on the Services due to changes in password access will not be attributed to the responsibility of the Service Provider. Prompt notification of changes to password access is the responsibility of the Client.
2.9 Compliance with Agreed-Upon Proposal: The Client will facilitate the timely completion of the Services by adhering to the Key Dates set out in the Proposal.
2.10 Third-Party Agreements: If applicable, the Client will fulfill any obligations related to third-party agreements or services that are integral to the progress of the Services.
2.11 Respect for Intellectual Property: The Client will respect the Service Provider's intellectual property rights and agree to use the Final Content for the Agreed Purpose as set out in this Agreement.
3. SERVICE PROVIDER OBLIGATIONS
3.1 We agree to perform the Services and provide the Services, Deliverables and Final Content to the best of our ability and in accordance with the Key Dates as set out in the Proposal.
3.2 Graphic Design Services
Scope
Where Graphic Design Services are provided, our obligations are as set out below:
a) The Service Provider agrees to perform graphic design work in accordance with the terms and conditions set forth in the Proposal. The Service Provider will execute the design projects, incorporating the creative elements and design concepts as outlined in the Proposal.
Limitations
The following limitations and considerations apply to the graphic design Services:
a) Revisions and Alterations
i. The Proposal specifies the number of design revisions included. If any additional revisions beyond this limit are requested by the Client, they may incur additional charges.
ii. Any changes requested by the Client that significantly alter the original design concept may incur additional charges.
b) Content and Assets
i. The Service Provider’s scope is limited to creating and incorporating design elements, such as graphics, layout and visual assets, based on the Client’s input and requirements. The Service Provider is not responsible for generating written or textual content, including copywriting, unless explicitly specified in the Proposal.
ii. Service Provider is not responsible for any delays in project completion due to late or incomplete content submissions by the Client.
c) Print and Production
i. Clarification that printing or production services (e.g., printing brochures, banners, etc.) are not included unless specified in the Proposal.
ii. If printing services are required, additional costs and timelines may apply.
d) Stock Images and Fonts
The use of stock images, fonts, or other design elements not created by the Service Provider. Any associated licensing or purchase costs are the responsibility of the client.
e) Third-Party Services
Any third-party services or software required for specific design needs (e.g., software licenses, photo retouching services) are not included unless expressly mentioned in the Proposal.
f) Project Timelines
i. Client responsibilities in adhering to project timelines and deadlines.
ii. Delays caused by Client feedback or approval processes may impact project delivery schedules.
3.3 Web Design and Build Services
Where Web Design and Build Services are provided, our obligations are as set out below:
Scope a) Strategic Planning: Develop a user-focused and responsive web design that aligns with the client's goals and audience.
b) Visual Aesthetics: Create visually appealing layouts and design elements that reflect the client's brand identity.
c) Functionality Integration: Incorporate desired features, functionalities, and user interactions into the design.
d) Client Collaboration: Engage in regular communication with the Client to incorporate feedback and ensure alignment.
e) Technical Expertise: Utilise appropriate technology and coding standards to ensure seamless website functionality.
Limitations: a) Unless as agreed between the parties in writing and set out in the Proposal, web design services do not include domain registration, hosting setup, or third-party software licensing.
b) The Service Provider is not responsible for changes requested outside the agreed-upon design scope and if any such changes are agreed, they will incur additional fees at our hourly rate and must be paid before work can commence.
c) Ongoing content updates and maintenance are not part of the initial design scope.
Support and Technical Assistance:
d) The Service Provider will be available for a maximum of 14 days after completion of the deliverables to provide reasonable technical support for addressing errors or deficiencies related to the design. Additional technical support beyond the 14-day period may incur additional fees. These fees will be quoted based on our hourly rate.
e) The Service Provider is not responsible for errors or deficiencies resulting from improper use of the website or third-party add-ons.
f) Any requested changes, modifications, or technical support required after the initial support period will be subject to the Client's approval and will incur additional Fees quoted based on our Hourly Rate.
3.4 Web Hosting and Maintenance Services
Where Web Hosting and Maintenance Services are provided, our obligations are as set out below:
Scope a) Access and Security
When web hosting services are detailed in the Proposal, and you have received direct access logins, you agree to the following terms:
i. You are prohibited from sharing these logins with any other person.
ii. Notify us before logging into the site directly to prevent any potential disruption or site lockout issues.
iii. We reserve the right to update passwords at our discretion, without prior notice, to enhance site security upon detecting unauthorised access. b) Security Measures
We are committed to safeguarding your website and data. In case of any suspicious activity, we will:
i. Take immediate steps to protect your data.
ii. Perform the following security actions (please insert specific steps to be taken).
You expressly authorise us to carry out these tasks without prior notice. You acknowledge that failure to take these actions may pose a greater risk to the site's security.
Where web hosting and maintenance Services are set out in the Proposal, you agree and acknowledge that we are unable to guarantee the sites performance and there are a variety of factors outside of our control which will impact a site’s performance. If we are engaged for the ongoing support and maintenance of a site, we will also perform routine maintenance tasks as well as performance optimisation tasks, such as spam maintenance. Routine maintenance tasks and security services will attract our hourly rate, unless otherwise agreed.
Limitations
It's important to clarify that the following are not included in the web hosting services:
a) Development or coding work beyond the scope of hosting.
b) Content creation or updates, unless specified in the Proposal.
c) Maintenance of third-party plugins or software, unless otherwise agreed.
4. MUTUAL OBLIGATIONS
Each party agrees that: a) they will hold appropriate insurances and comply with all Applicable Laws,
b) the other party will not be liable for any failure to carry out any obligation under this Agreement to the extent it is caused by the failure of the other party to comply with its obligations under the Agreement; and
c) if delays occur for reasons beyond the parties’ control, such as due to a Force Majeure Event or the failure of third parties to meet their obligations, rendering the Key Dates in need of being rescheduled, the parties will use their best efforts to reschedule Dates accordingly.
5. FEES
Fees
5.2 The total scope of the Services is as set out in the Proposal, along with the Key Dates for delivery. If Services outside the scope are required, these will be quoted separately at our Hourly Rate.
5.3 The Service Provider will issue the Client with a tax invoice for the Fee outlined in the Proposal, and the Client will pay the Fee in accordance with the process set out in the Proposal in receipt of a valid tax invoice.
5.4 All amounts payable or other consideration provided in respect of amounts payable in relation to this Agreement are exclusive of GST unless otherwise stated.
5.5 All GST must be paid at the time any payment to which it relates is payable (provided a tax invoice has been issued).
5.6 All Fees will be payable by you in accordance with the payment method nominated on our invoice within the time frames specified on the invoice or otherwise on the Payment Dates set out in the Proposal. You will receive a Tax Invoice from us prior to payment being due in each instance.
Deposit
5.7 A Deposit is due on signing the Agreement within the timeframe specified in the Proposal. The Services will not commence until the Deposit has been paid. For conditions regarding refunds or return of the Deposit, see clause 6 .
5.8 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.
Retainer
5.9 Retainer clients will be billed monthly in advance.
Expenses
5.10 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.
Increase to Hourly Rate
5.11 We are entitled to vary our Hourly Rate during the Term on providing you with 14 days’ written notice, this will not affect any Fee already agreed and as set out in the Proposal, however, it may impact future Services and any out of scope work.
Additional work Fees
5.12 If you engage us to complete additional work (outside of the scope of the original Proposal) we will issue you with an estimate of additional work fees, charged at our hourly rate. Once agreed by you, we will issue you with a tax invoice for the additional work, payable within seven (7) days. We will not be able to commence the additional work until the tax invoice has been paid in full.
Recovery of Unpaid Fees
5.13 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.
6. CANCELLATION & REFUNDS
Cancellation by the Service Provider
6.2 In the event of cancellation by the Service Provider, the Service Provider agrees to provide prompt notice to the Client and make reasonable efforts to find a suitable replacement for the Service Provider, if applicable. If a suitable replacement cannot be found, any payments made by the Client for the unfulfilled portion of the Services shall be refunded.
Cancellation due to Force Majeure
6.3 The Client acknowledges that they cannot hold the Service Provider responsible for any damages or other claims resulting from a Force Majeure event. In such a case, the Service Provider has the right to request a fair and reasonable extension of time to reschedule the affected Services, if possible. If the Services are cancelled due to a Force Majeure event, the Service Provider and the Client will engage in good faith negotiations to reschedule Services and the Fee will be applied towards the rescheduled Services.
Cancellation by Client
6.4 Subject to the payment terms set out in clause 5 , if the Client cancels the Agreement within seven (7) days of signing the applicable Proposal, a Cancellation Fee as set out in the Proposal will be deducted from the Deposit and the remaining balance will be refunded to you. The Cancellation Fee accounts for the time, effort and resources invested in preparing for the Services. By cancelling, you acknowledge the administrative costs incurred.
6.5 If you cancel the Services after seven (7) days of signing the Proposal, the Deposit is non-refundable. and is designed to offset the administrative and operational costs associated with processing and reserving resources for your project. By cancelling, you acknowledge and agree that retention of the Deposit is fair and reasonable.
6.6 The Service Provider agrees to make reasonable efforts to mitigate the impact of the Client's cancellation by seeking a replacement, client.
Refund Process
6.7 If you cancel the Services within the eligible period and are entitled to a refund, we will process the refund within 14 business days.
6.8 Refunds will be issued using the original payment method unless otherwise agreed upon.
6.9 Refunds may be offered based on the following conditions:
a) If a cancellation is made within the designated notice period, a full or partial refund may be granted.
b) If a cancellation is made outside the designated notice period, no refund will be provided.
6.10 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.
6.11 Refunds are provided in compliance with all Applicable Laws.
7. CLIENT INFORMATION AND FEEDBACK
7.1 The Client agrees to provide the Service Provider with clear and comprehensive Client Information, instructions, and specifications for the Services as set out in the Proposal.
7.2 You acknowledge that we will rely upon information you provide as being accurate to the extent of your knowledge and you are responsible for providing us with updated information throughout the Term of the Agreement.
7.3 If the Service Provider has any questions or requires clarification regarding the Client Information, they will promptly seek clarification from the Client to ensure there is a clear understanding of the requirements.
7.4 In the event that the Service Provider believes any aspects of the Client Information are contradictory, unclear or impractical, the Service Provider will notify the Client for further discussion and resolution and the Client agrees to provide timely feedback in accordance with the Key Dates specified in the Proposal.
7.5 You acknowledge that our ability to meet the Key Dates is partially dependent on how promptly your feedback or approval is provided. You agree to provide written feedback or approval within seven (7) days of our sending materials to you at any stage during the Term of our Agreement.
7.6 You acknowledge that if feedback is not provided within the timeframes specified in the Proposal, the draft deliverables will be deemed to be accepted and the incorporation of any additional feedback will be subject to our Hourly Rate.
7.7 We will not be liable for any errors or defects in the Final Content after they have been accepted by you, and the correction of any errors or defects after completion of the Final Content will be subject to our Hourly Rate.
8. DELAYS AND NON-COMPLETION
8.1 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.
8.2 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.
8.3 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.
8.4 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.
9. INTELLECTUAL PROPERTY
Licence Grant
9.2 To the extent that a party is required to use any of the other party’s Intellectual Property (IP) for the purpose of performing their obligations under this Agreement, each party grants to the other a revocable, non-transferable, non-exclusive, royalty-free licence to use the other party’s IP for that sole purpose.
9.3 The licence granted by each party to the other to use IP for the purpose set out in the Agreement is conditional on the recipient not sub-licensing, publishing, selling, or otherwise allowing it to be used by third parties, and also not modifying it in any way except as otherwise agreed.
Usage and Distribution of Final Content
9.4 The Client shall have the right to use the Final Content for the Agreed Purpose, as specified in the Proposal.
9.5 Client agrees to credit the Service Provider with performance of the Services wherever reference to them may appear and ensure that any third party to whom you grant access to any Deliverables and Final Content.
Assignment of Intellectual Property
9.6 The Service Provider agrees to grant the Client full ownership and exclusive rights to the Final Content created under this Agreement upon receipt of full payment of all Fees owed by the Client.
9.7 Until full payment is received, the Service Provider retains ownership of the Intellectual Property rights and any other content created as part of the Services and grants the Client a non-exclusive, revocable license to use the Intellectual Property and any other content solely for the purpose of evaluating the Services provided.
9.8 Upon receipt of full payment, ownership of the Assigned IP will automatically transfer to the Client, and the Service Provider shall promptly provide (if necessary) any documentation or transfer of rights to evidence such transfer at the Client’s expense.
9.9 You agree not to sublicence, publish, sell the Final Content or otherwise provide the Final Content to third parties except in accordance with the Agreed Purpose.
9.10 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.
Recognition
9.11 The parties agree that unless otherwise expressly agreed in the Proposal, the Service Provider will retain the right to reproduce, publish and display their involvement in the Services together with reference to the Client reference to the Client (including Client’s name, business name, logo and any trade marks) in portfolios, on websites, and in galleries, design periodicals and other media (including social media) or exhibits for the sole purpose of recognition of Services provided.
Moral Rights and Third Party Rights
9.12 Each party must obtain written consent from individuals who hold Moral Rights for any materials they contribute under this Agreement. This ensures that the materials can be used in accordance with this Agreement and that the use of the materials by either party, its licensees, successors, or authorised individuals will not infringe anyone's Moral Rights.
9.13 You and we acknowledge that all Third-Party Materials are the exclusive property of their respective owners and where Third Party Materials are required to perform the Services or otherwise required to be integrated into the Final Content then:
a) the parties will agree and obtain a licence and any costs associated with obtaining a licence; and
b) any costs associated for the use of Third-Party Materials will be borne by the Client.
9.14 This clause 9 survives termination or expiry of this Agreement.
10. TERMINATION AND POST TERMINATION OBLIGATIONS
10.1 Termination by Service Provider
We may terminate the Agreement with immediate effect if:
a) you do not pay the Fees by the Payment Dates or within the timeframe specified in the Proposal or applicable tax invoice;
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;
e) we determine that we are no longer able to perform the Services for any reason.
If we terminate the Agreement in accordance with clause 10.1(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.
Upon termination for the Client's breach, the Client shall immediately cease any further use or distribution of any content, including the Final Content provided by the Service Provider.
The Client acknowledges that in the event of termination due to their breach, they shall remain liable for the outstanding Fees owed to the Service Provider.
10.2 Termination by Client
The Client may terminate this Agreement by providing written notice to the Service Provider in the event of a material breach by the Service Provider such as a failure to deliver the Services as agreed in the Proposal and the Service Provider has not remedied the same within 7 days of the date of written notice.
Upon termination for the Service Provider's breach, the Service Provider shall promptly refund any Fees paid by the Client for Services not yet provided.
10.3 Termination by either party
Either party may terminate the Agreement immediately 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.
10.4 Webhosting termination obligations
Where Web Hosting and Maintenance services are set out in the Proposal, you agree and acknowledge that if these services are terminated, you will, in addition the above obligations agree to:
a) provide us with the information for a new host within 7 days from the date of termination;
b) pay our reasonable fees for any redevelopment within 7 days of a tax invoice being issued for this service; and
c) Within 7 days, purchase any licences/plugins that we recommend for the continuation of the site and/or promptly provide us with licence keys for any third-party licences or plugins and details for any account to be transferred (where applicable). In such a situation, we will remove our license key and activate the plugin using the license key you provide. In the event of termination and where we have purchased plugin licenses on your behalf, you agree to settlement any outstanding payments for said plugins. Upon receipt of payment, we will transfer the respective accounts and login details to you. You will then assume all responsibilities and liabilities concerning these accounts and plugins. Failure to settle the outstanding payments within 7 days of the termination notice may result in account restrictions and/or additional charges.
You also acknowledge and agree that some licence/plugins are a lifetime purchase, whilst others attract annual fees, which may increase incrementally from the time they are first purchased. We will provide you with the licences/plug-in information within 7 days from the date of termination of our Agreement.
If you fail to comply with your obligations as set out in this clause 10.4, you agree and acknowledge that we are not responsible for any detrimental impact on your site.
10.5 Post Termination Obligations
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.
11. WARRANTIES AND INDEMNITIES
11.1 The parties warrant that they have full power, capacity and authority to enter into and perform their obligations under the Agreement.
11.2 The nature of certain Services means that we are unable to guarantee particular results, and any examples of Services provided to or created for other clients is a representation of potential results only.
11.3 We are not liable for any errors or omissions in Final Content after it has been approved by the Client.
11.4 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.
11.5 You acknowledge and agree that you are providing us access to your online accounts, including passwords and permissions, at your own risk. While we will take reasonable measures to protect your data and the security of your accounts including the use of antivirus and malware protection software and password authentication processes, however, you understand that there are inherent risks associated with sharing such access and information and we cannot be held responsible for any direct or Consequential Loss suffered due to a data breach.
11.6 We strongly recommend that you maintain strong security practices for your accounts, including regularly updating passwords, enabling two-factor authentication, and promptly reporting any suspicious activity. You also acknowledge that we are not responsible for any loss incurred from security breaches, and that any loss resulting from such breaches is not in any way our fault.
11.7 You agree to indemnify and hold us harmless from any loss, damage, or liability arising from the granting of access or sharing of information related to your online accounts. This includes, but is not limited to, any unauthorised access, hacking, or misuse of your accounts or the accounts of any third parties connected to your business.
11.8 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.
11.9 The Services are provided on an “as is” basis, without representation, warranty or condition of any kind (either express or implied). 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.
11.10 We are not responsible for any unforeseen advances in technology that may negatively impact the Services we provide.
11.11 You acknowledge that we cannot be held responsible for any negative impact on the Services as a result of inaccuracies in information provided to us by you, nor the cost of rectifying such inaccuracies.
11.12 Any express or implied warranty or condition relating to the Agreement or its subject matter that are not contained in the Agreement are excluded to the maximum extent permitted by law.
11.13 If any warranty or condition is implied into the Agreement and cannot be excluded, our liability is limited to resupplying our services or payment of the cost of having our services resupplied.
11.14 Each party agrees to indemnify and hold harmless the other party, their respective affiliates, officers, directors, agents, and employees from and against any and all claims, damages, liabilities, costs, and expenses, including reasonable attorneys' fees, arising out of or relating to any breach of this Agreement, negligent acts or omissions, wilful misconduct, or any actual or alleged infringement or misappropriation of any Intellectual Property Rights by either party or their respective affiliates, officers, directors, agents, or employees.
11.15 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.
11.16 Neither party will be liable to the other for any Consequential Loss, whether foreseeable or not and however caused, except for confidentiality and indemnification obligations.
11.17 Neither party will be liable to the other for any loss or damage suffered by a third party in connection with this Agreement.
11.18 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.
11.19 The liability of each party to the other party (including under indemnity) is mutually capped to $5,000 the total amount of Fees paid in connection with the Services provided under the Agreement in the 12 months preceding the liability event and will be reduced to the extent that the other party's acts or omissions contribute to or cause the liability.
11.20 This clause 11 survives termination or expiry of this Agreement.
12. CONFIDENTIALITY AND PRIVACY
12.1 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.
12.2 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.
12.3 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.
12.4 This clause 12 survives termination or expiry of this Agreement.
13. SUBCONTRACTORS
13.1 We reserve the right to appoint subcontractors to perform some or all of the Services or provide the Deliverables as set out in the Proposal.
13.2 We will be responsible for any appointed subcontractor for the Term of the Agreement and thereafter and will be held to the same conditions as set out above with respect to acceptable behaviour, security, confidentiality and privacy.
14. MISCELLANEOUS
14.1 Relationship of Parties
We are independent contractors and the relationship between you and us does not constitute that of a partnership, joint venture, agency or employer and employee. Nothing in this Agreement gives either party the authority to bind the other in any way, nor impose any fiduciary duties on the other party.
14.2 Exclusivity
The parties agree that this agreement does not establish an exclusive relationship between the Service Provider and the Client. The Service Provider is free to provide their services to other clients and engage in similar projects, including those that may be in direct competition with the Client's business. The Client acknowledges and agrees that the Service Provider may work with other clients.
14.3 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 the Term. Where one party is dissatisfied, the issue must be dealt with in accordance with the provision of this Agreement relating to disputes. In the event that either party breaches this provision by engaging in disparagement or posting negative feedback in a public forum, the non-breaching party has two options:
a) The non-breaching party may initiate the dispute resolution process as outlined in clause 14.6 of this Agreement to resolve the matter amicably.
b) The non-breaching party may pursue legal action to seek remedies, including injunctive relief and damages, as allowed by applicable laws.
The choice between these options will be at the sole discretion of the non-breaching party.
14.4 Conflict of Interest
Each party warrants that they are free to enter into this Agreement and that it shall not violate the terms of any other agreement between that the party and a third party.
14.5 Disputes
Should a dispute of any kind arise during the Term, you agree to contact us so that we can discuss the matter in the first instance. 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, such costs to be borne equally by the parties. Without limiting either party’s right to seek urgent injunctive or declaratory relief, neither party may commence court proceedings in any jurisdiction until the mediation process is complete.
14.6 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, 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.
14.7 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.
14.8 Governing Law
The formation, construction, performance and enforcement of the Terms will be in accordance with the laws in force in NSW Australia. You and We submit to the non-exclusive jurisdiction of the courts of that jurisdiction.
14.9 Execution and Counterparts
The Agreement will become binding when any one or more counterparts individually or taken together, are signed by the parties. The Agreement may be executed by way of electronic signature, including by clicking “I consent” or similar. If the Agreement is executed in this way, it will be considered an original that has been properly executed.
14.10 Amendment or Variation
We reserve the right to amend or vary the Agreement and we will notify you of the changes. You can choose to terminate if you do not accept the amendments and/or variations. If you continue to engage our services, you are deemed to have accepted the amendments and/or variations to these Terms.
14.11 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.
14.12 Assignment
You are not permitted to assign the Agreement or otherwise deal with any rights under it without our prior written consent. Conversely, we may do so without your consent.
14.13 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. 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 that may apply to the Services or either party’s obligations under the Agreement.
Assigned IP
means the intellectual property assigned by the Service Provider as 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 Information
means the information provided by the Client to the Service Provider and as set out 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.
Consequential Loss
means any liability in relation to incidental, indirect, consequential, punitive or special damages (including but not limited to damages to business reputation, lost business, or lost profits) arising out of or in connection with the Agreement.
Deliverables
means the deliverables set out in the Proposal.
Deposit
means the initial payment as set out in the Proposal, that secures provision of the Services in accordance with the Key Dates.
Final Content
means all content developed by or for us, as incorporated into and delivered as part of the approved Services.
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.
Intellectual Property Rights
means all current and future registered and unregistered rights associated with 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. These rights apply to any person who is the original creator, whether the creation occurred before or after the Commencement Date, and regardless of the country in which it was created. The creation may be connected with the individual or may be independently or jointly conceived and produced by them 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.
Proposal
means the Proposal that forms part of the Agreement alongside the T&Cs, and any Subsequent Proposal between the parties in relation to the Services.