Ucidity Terms & Conditions

These terms and conditions set out the agreement between Ucidity and you, the Client. By accepting any quotation provided by Ucidity, you agree that you have read and agreed to these terms and conditions.

Operative provisions

1. Definitions and interpretation

Definitions

1.1. The following definitions apply in this agreement unless the context requires otherwise:

Agreement: means this Services Agreement, as amended in respect of each Statement of Work.

Authorised Third Party Disclosee means any Representative of a Disclosee to whom that Disclosee discloses Confidential Information in accordance with clause 7.

Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Sydney, New South Wales are open for business.

Change of Control means, in respect of a particular entity, a person who Controls that entity ceasing to do so or another person acquiring Control of it.

Charges means Fees and Expenses.

Claim means any claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse (whether in contract, tort, under statute or otherwise).

Company means Kasshill Pty Ltd ACN 639 182 808 trading as Ucidity.

Confidential Information means all information relating to a party, any customer, clients, suppliers, distributors or joint venture partners, of the party and/or any of the business or financial affairs of any of them, including:

(a) any information that is specifically designated by any of them as confidential;

(b) any information which, by its nature, may reasonably be regarded as confidential;

(i) agreements, arrangements or terms of trade with any existing or prospective customers, clients, suppliers, distributors or joint venture partners or other contractual counterparties;

(ii) customers, clients, suppliers, distributors, joint venture partners, employees, technologies, products, services, proposals, market opportunities, business or product development plans, pricing, financial position or performance, capabilities, capacities, operations or processes; or

(iii) Intellectual Property Rights,

of any of them; and

(d) any note, calculation, conclusion, summary or other material derived or produced partly or wholly from any such information.

Control has the meaning given in Section 50AA of the Corporations Act.

Copyright Act means the Copyright Act 1968 (Cth).

Corporations Act means the Corporations Act 2001 (Cth).

Deadline Date means, in respect of a Quote, the dates (if any) specified in the Quote as the dates on or before which the Company must complete each Phase of the Engagement in accordance with clause3.9.

Default Rate means a rate of interest of 1.00% per month.

Deliverables means the end products and/or services provided to the Client by the Company, in the form or media described in the Quote (or as otherwise agreed between the Company and the Client)

Disclosee means, in respect of any particular Confidential Information, any party that has received that Confidential Information (whether directly or indirectly) from another party.

Discloser means, in respect of any particular Confidential Information, any party that has disclosed or discloses that Confidential Information (whether directly or indirectly) to another party.

Draft means a preliminary design, mock-up, or other items to be provided to the Client for approval prior to the preparation and provision of a Deliverable.

Engagement has the meaning given in clause 3.1, being each individual engagement for the Company to provide specific Services to the Client pursuant to a Quote.

Event of Default means any of the following on the part of the Client:

1. committing any material or persistent breach of this agreement;
2. repudiating or, or, in the reasonable opinion of the Company, evincing an intention to repudiate, this agreement;
3. if the Client is a company, undergoing a Change of Control without the prior written consent of the Company;
4. misleading the Company in any material way; and/or
5. an Insolvency Event occurring in respect of the Client.

Estimate means the estimated fees to provide the Services, as set out in the Quote.

Expenses mean the expenses of the Company for which the Company is entitled to be reimbursed by the Client pursuant to clause 4.4.

Fees has the meaning given in clause 4.1.

Governmental Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity whether foreign, federal, state, territorial or local.

GST has the same meaning given to that expression in the GST Law.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as in force from time to time.

GST Law has the same meaning given to that expression in the GST Act.

Hourly Rate means the hourly rate set out in the relevant Quote, if applicable.

Insolvency Event means, in respect of a party:

1. where the party is an individual, that party commits an act of bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under any law relating to bankruptcy or insolvency;
2. where the party is a company, a resolution is passed or court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law;
3. a receiver or manager or receiver and manager is appointed to the assets or undertaking of the party or any part thereof; or
4. the party is otherwise unable to pay its debts as and when they fall due.

In-Scope Work means work that has been expressly and specifically designated as being within the scope of the Services.

Input Tax Credit has the meaning given in the GST Law.

Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how, trade secrets and marketing secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability of any kind or character (including legal and other professional fees and expenses on a full indemnity basis) that a party pays, suffers or incurs or is liable for, including all:

1. liabilities on account of Tax;
2. interest and other amounts payable to third parties;
3. legal and other professional fees and expenses (on a full indemnity basis) and other costs incurred in connection with investigating, defending or settling any Claim, whether or not resulting in any liability; and
4. all amounts paid in settlement of any Claim.

Moral Rights has the same meaning as that term has in Part IX of the Copyright Act.

Non-Solicitation Period means 12 months from the termination of this Agreement.

Out-of-Scope Work means any work that is not In-Scope Work, including the work specifically described as being out of scope in the Quote (if any).

Personal Information has the meaning given in the Privacy Act.

Phase means any particular phase of the Services as specified in the Quote.

Privacy Act means the Privacy Act 1998 (Cth).

Procuret means Procuret Operating Pty Ltd ABN 77 630 036 789.

Project management means the planning, organization, and implementation of marketing initiatives on behalf of the Client. This includes the management of resources, timelines, budgets, and quality control to ensure that each Phase is delivered efficiently, effectively to the Client.

Quote means, in respect of a particular Engagement, the document headed “Statement of Work” or similar setting out the scope of the Services for that Engagement as provided by the Company to the Client and accepted by the parties in accordance with this agreement.

Client means the recipient of the Services as named in the Quote.

Relevant IP means all Intellectual Property Rights that the Company makes, develops or conceives (whether alone or in conjunction with someone else, and whether during or outside normal working hours) in the course of, or arising out of, the provision of the Services and/or Company’s engagement with the Client, including any Intellectual Property Rights so made, developed or conceived:

1. using the premises, resources or facilities of the Client or any of its customers, clients or suppliers;
2. in the course of, as a consequence of, or in relation to, the provision of the Services by the Company and/or the performance (whether proper or improper) of the Company’s duties and responsibilities to the Client under this agreement or otherwise;
3. as a direct or indirect result of any person’s access to any Confidential Information or Intellectual Property Rights of the Client or any of its customers, clients or suppliers; or
4. in respect of any of the products or services of the Client or any of its customers, clients or suppliers, or any alterations, additions or methods of making, using, marketing, selling or providing such products or services.

Representatives means, in respect of a person, the employees, officers, consultants, agents and professional advisers of that person.

Services means the services provided by the Company to the Client under this agreement in respect of each Engagement, as set out in the relevant Quote.

Stamp Duty means any stamp, transaction or registration duty or similar charge imposed by any Governmental Agency and includes any interest, fine, penalty, charge or other amount in respect of the above, but excludes any GST.

Commencement Date means the date of this agreement or such other date as the parties may agree in writing.

Statement of Work: means the document, that prescribes (amongst other things) the types of Services to be provided by the Company, the charges payable for them and any key performance dates.

Tax Acts means the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth).

Tax or Taxation means:

1. any tax, levy, impost, deduction, charge, rate, compulsory loan, withholding or duty by whatever name called, levied, imposed or assessed under the Tax Acts or any other statute, ordinance or law by any Governmental Agency (including profits tax, property tax, interest tax, income tax, tax related to capital gains, tax related to the franking of dividends, bank account debits tax, fringe benefits tax, sales tax, payroll tax, superannuation guarantee charge, group or Pay as You Go withholding tax and land tax);
2. unless the context otherwise requires, Stamp Duty and GST; and
3. any interest, penalty, charge, fine or fee or other amount of any kind assessed, charged or imposed on or in respect of the above.

Works means all programs and programming and literary, dramatic, musical and artistic works within the meaning of the Copyright Act.

Working Files means all documents, files, designs, artwork, source code, data and other materials that are created, compiled or developed by the Company in the course of providing the Services.

Interpretation

1. 1. The following rules of interpretation apply in this agreement unless the context requires otherwise:

1. headings in this agreement are for convenience only and do not affect its interpretation or construction;
2. no rule of construction applies to the disadvantage of a party because this agreement is prepared by (or on behalf of) that party;
3. where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
4. a reference to a document (including this agreement) is a reference to that document (including any schedules and annexures) as amended, consolidated, supplemented, novated or replaced;
5. references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to this agreement;
6. in each schedule to this agreement, a reference to a paragraph is a reference to a paragraph in that schedule;
7. a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;
8. an expression importing a natural person includes any individual, corporation or other body corporate, partnership, trust or association and any Governmental Agency and that person’s personal representatives, successors, permitted assigns, substitutes, executors and administrators;
9. a reference to writing includes any communication sent by post, facsimile or email;
10. a reference to time refers to time in Sydney, New South Wales and time is of the essence;
11. all monetary amounts are in Australian currency;
12. a reference to a “liability” includes a present, prospective, future or contingent liability;
13. the word “month” means calendar month and the word “year” means 12 calendar months;
14. the meaning of general words is not limited by specific examples introduced by “include”, “includes”, “including”, “for example”, “in particular”, “such as” or similar expressions;
15. a reference to a “party” is a reference to a party to this agreement and a reference to a “third party” is a reference to a person that is not a party to this agreement;
16. a reference to any thing is a reference to the whole and each part of it;
17. a reference to a group of persons is a reference to all of them collectively and to each of them individually;
18. words in the singular include the plural and vice versa; and
19. a reference to one gender includes a reference to the other genders.
20. Engagement as Company
  1. The Client hereby engages the Company on a non-exclusive basis to provide the Services to the Client, and the Company hereby accepts that engagement and agrees to provide the Services to the Client, in accordance with the terms of this agreement.

Commencement and duration

1. 1. The Company’s engagement with the Client will:

1. commence on the Commencement Date; and
2. continue indefinitely unless and until it is terminated in accordance with clause 11.

Nature of relationship

1. 1. The Company is an independent contractor of the Client and nothing in this agreement constitutes a relationship of employer and employee, principal and agent, partnership or joint venture between the parties.
2. Provision of the Services

Quote

1. 1. In respect of each individual engagement for the Company to provide Services to the Client under this agreement (each an Engagement), the parties must first agree on a Quote. The Quote will outline the services the Company will provide to the Client, the timeframe within which those services can be completed and an Estimate. The Company’s obligation to provide the Services that are the subject of each Engagement does not arise unless and until the Client has notified the Company of the Client’s acceptance of the relevant Quote.
  2. The Client acknowledges that the Estimate stated in the Quote is an estimate only and that upon completion of the Services the fee charged may be less or more than the Estimate.
  3. The Company will advise the Client as soon as reasonably practicable when it is clear to the Company that the Fees will exceed the Estimate.

Changes to the Services

1. 1. The Client acknowledges that the Company will follow the process outlined in the Agreement. If the Client decides to deviate from this process, they must indicate this in writing and acknowledge that the Client understands the implications that this may have on the outcomes of the Services and also understands that they take responsibility for the outcome of the Services not being to expectation. The Client acknowledges that the Company will manage and refine the strategy as required during the execution of the Services and all changes will be communicated in writing.
  2. All change requests must be sent in writing by the Client, and the Company will respond to the Client in writing.

Delivery of the Services

1. 1. Delivery of the Services will be online and face-to-face and both parties agree to communicate between telephone, email, face-to-face (if located in Sydney) and/or by video conference.
  2. If the Company is required to alter the description of the Services, the Company must first obtain the written consent from the Client.
  3. Where the Services include the provision of technology, then due to the inherently complex nature of technology, the Company is unable to provide the Client with a guarantee that the Services will be free from technical errors and/or bugs.

Deadline Dates

1. 1. The Client will advise the Company in writing of any deadlines for the completion of the Services prior to the Company commencing the Services.
  2. If the Services for an Engagement are divided into Phases, the Company must ensure that the Services for each Phase of the Engagement are fully completed on or before the relevant Deadline Date.
  3. If the Company foresees being unable to complete the Services by the Completion Date, the Company must inform the Client at least three (3) days prior to the Completion Date.
  4. If the Client advises the Company that the Services are required earlier than the Client previously advised, then the Company reserves the right to charge a premium of up to 20% of the hourly rate set out in each Quote.
  5. If the Services required by the Client are required to be finished in a shorter timeline than usual, the Company reserves the right to charge a premium of up to 20% of the hourly rate set out in each Quote, at the sole discretion of the Company.
  6. The Company is not liable for any delays resulting from:

1. Changes required by the Client to the Services;
2. Delays in the Client responding to enquiries from the Company relating to the Services or
3. Delays by the Client in approving the Services.

Drafts

1. 1. The Company will provide the Client with initial, low-resolution designs for the Client’s approval throughout the provision of the Services.
  2. The Client agrees to either approve or reject these Drafts in writing, within 3 business days.
  3. If the Client rejects a Draft, the Client must provide the Company with the reasons for any such rejection, and clear instructions as to the Client’s proposed amendments to the Draft.
  4. If the Client does not either approve or reject a Draft in writing within 3 business days, then the Draft is deemed to have been approved and the Company will proceed with the further provision for the services in relation to that Draft, including but not limited to the creation of the Deliverables.
  5. Any amendments to the Draft after an approval will result in an additional cost to the Client, charged at the hourly rates set out in the Quote.
  6. Any revisions requested by the Client after the Company has provided the Deliverables will be charged at a premium of up to 20%, to be determined at the sole discretion of the Company.

Outside Work

1. 1. The Client agrees that the Company may engage a third party to provide the Services (or any part of them) to the Client (Third Party).
2. Pricing and invoicing
  1. Subject to clause 3.1, in respect of each Engagement, the parties have agreed that the total price for the relevant Services (exclusive of GST and Expenses, (the Fees) will involves the following:

1. The Client agrees to pay the Company the Fees in accordance with the method prescribed in 5.2.
2. The Company will request and the Client must provide full payment for projects below AUD $2,000 (excluding GST).
3. If payment is not requested by the Company, the Client acknowledges and agrees that the Company has provided the Client with this Service Agreement prior to commencing the Services, and by instructing the Company to commence the Services the Client has accepted this Services Agreement
4. The Client will pay the cost of any Working Files including costs for export and delivery which are requested by the Client.
5. For any Engagement that spans over a period of 6 months or longer, the Company reserves the right to increase the Fees for each consecutive 6-month period by 2%.
6. If the Company’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Client or its Representatives, the Company shall not be liable for any Charges incurred by the Client that arise directly or indirectly from such prevention or delay, nor will it be liable for any delay in providing the Services (or any part of them) to the Client.
7. The Client shall be liable to pay the Company, on demand, all reasonable Charges sustained or incurred by the Company (including any direct, indirect, or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Client’s failure to pay Fees when due, or as a result of the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Agreement.
8. The Client acknowledges that time is of the essence in relation to payment of the Company’s Fees.

Out-of-Scope Work

1. 1. In relation to any Out-of-Scope Work, or where Project Management, including email administration, internal briefing and external client meetings exceeds 20% of the overall project scope, the Company at its sole discretion and upon providing 7 days’ notice to the Client, may charge additional fees to the Client on an hourly basis from the initial notice date.
  2. The Company reserves the right to charge the standard hourly rate plus an additional 20% for every hour spent on Out-of-Scope Work.

Reimbursement of Expenses

1. 1. The Client will pay any expenses associated with providing the Services, such as costs of commissioning images or subcontracting talent, run-time license costs, research, postage and delivery, photocopying, storage media expenses, procurement of stock images, printing, and pre-approved travel costs associated with providing the Services provided that:

1. the Company:
  1. 1. 1. obtains the Client’s written consent before incurring the expenses;
      2. provides the Client with acceptable documentation for the expenses incurred; and
      3. complies with any applicable expenses policy of the Client in force from time to time, provided that a copy of the policy has been provided to the Company by the Client prior to the relevant expense being incurred; and
2. the Client will not be required to reimburse the Company for any amount of GST that the Company has paid, or is liable to pay, in relation to any supply acquired by the Company from any third party if the Company has received, or is entitled to receive, an Input Tax Credit for that GST.
3. Payment

Timing of payments

1. 1. Prior to the Services being provided to the Client, the Client must pay to the Company all Charges properly invoiced pursuant to clause 4 in full on or before the date that is 7 days after the Client’s receipt of the relevant invoice. The Client acknowledges that after payment of the invoice, the Company requires up to 5 Business Days before the Services are provided to the Client.

Method of payment

1. 1. All The Client shall make payments of amounts into the following bank account:

Account Name: Kasshill Pty Ltd

BSB: 032-135

Account Number: 66 11 60

Bank: Westpac

1. 1. The Client is at liberty to opt for a payment plan provided by Procuret which will allow the Client to pay in instalments of either 4, 6 or 12 months. Any request to pay by this method should be made prior to the Services being provided.

No set-off or deduction

1. 1. All amounts payable under or in connection with this agreement must be paid without set-off, counterclaim, withholding, deduction or claim to a lien whatsoever, whether or not any such set-off, counterclaim, withholding, deduction or lien arises under this agreement (unless otherwise required by law).
  2. If a party is required by law to make a deduction or withholding in respect of any sum payable under or in connection with this agreement to another party, it must, at the same time as the sum that is the subject of the deduction or withholding is payable, make a payment to the other party of such additional amount as is required to ensure that the net amount received by the other party will equal the full amount that would have been received by it had no such deduction or withholding been required to be made.

Default interest

1. 1. If the Client fails to pay any sum payable by it under this agreement to another party at the time and otherwise in the manner provided in this agreement, it must pay interest on that sum from the due date of payment until that sum is paid in full at the Default Rate, compounded monthly. Interest will accrue from day to day and will be payable on demand. The payment of interest by a party to another party in respect of any late payment under this clause 5.6 is in addition to any other remedies that the other party may have in respect of such late payment.
  2. If a liability of a party to another party under this agreement becomes merged in a judgement or order and the interest rate that applies under that judgement or order is lower than the Default Rate, that party must, as an independent obligation, pay to the other party, at the same time and in the same manner as the sum that is the subject of that judgement or order is to be paid, such additional interest on that sum as is required to ensure that the total amount of interest that the other party receives in respect of that liability is equal to the Default Rate.
2. GST

Definitions regarding GST

1. 1. In this clause 6:
2. expressions that are not defined, but which have a defined meaning in the GST Law, have the same meaning as in the GST Law;
3. any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 6; and
4. any Fees that are specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purpose of this clause 6.

Consideration is exclusive of GST

1. 1. Unless expressly stated otherwise, any sum payable, or amount used in the calculation of a sum payable, under this agreement has been determined without regard to GST and must be increased on account of any GST payable under this clause 6.

Receiving Party to pay additional amount

1. 1. If GST is imposed on any supply made under or in accordance with this agreement, the recipient of the supply (Receiving Party) must pay to the supplier (Providing Party) an additional amount equal to the GST payable on the supply, subject to the Receiving Party receiving a valid tax invoice, or a document that the Commissioner will treat as a tax invoice, in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time and in the same manner as payment for the supply is required to be made in accordance with this agreement.

Fines, penalties and interest

1. 1. The amount recoverable on account of GST under this clause 6 by the Providing Party will include any fines, penalties, interest and other charges incurred as a consequence of any late payment or other default by the Receiving Party under this clause 6.

Reimbursement

1. 1. If any party is required to pay, reimburse or indemnify another party for the whole or any part of any cost, expense, loss, liability or other amount that the other party has incurred or will incur in connection with this agreement, the amount must be reduced by the amount for which the other party can claim an Input Tax Credit, partial Input Tax Credit or other similar offset.

Adjustment events

1. 1. If, at any time, an adjustment event arises in respect of any supply made by a party under this agreement, a corresponding adjustment must be made between the parties in respect of any amount paid to the Providing Party by the Receiving Party pursuant to clause 6.3 and payments to give effect to the adjustment must be made and the Providing Party must issue an adjustment note.

1. Confidentiality
  1. Subject to clauses 7.4 and 5, a Disclosee must:
2. keep all Confidential Information confidential;
3. not use or exploit any Confidential Information unless the Disclosee obtains the prior consent of the Discloser and must not use the Confidential Information in any way except in the proper performance of the Services in accordance with this agreement;
4. not copy, reduce to writing or otherwise record any Confidential Information except in the proper performance of the Services in accordance with this agreement (and any such copies, reductions to writing and records will be the property of the Discloser); and
5. ensure that any and all Authorised Third Party Disclosees:
  1. 1. 1. comply with the obligations in this agreement as if each of them was a party to this agreement in the place of the Disclosee; and
      2. do not do, or omit to do, anything which, if done or omitted to be done by the Disclosee, would constitute a breach of this agreement by the Disclosee.
  2. The Disclosee shall be responsible for, and liable to the Discloser in respect of, the actions or omissions of any and all of its Authorised Third Party Disclosees in relation to the Confidential Information as if they were the actions or omissions of the Disclosee.
  3. All obligations arising from this section 7 will continue in full force and effect after the Services have been fully performed.
  4. The Confidentiality obligations in this section do not apply where the Company engages a Third Party under clause 3.21. The Company will only engage with a Third Party when a mutual confidentiality agreement is in place.

Exceptions

1. 1. The Disclosee may disclose Confidential Information to those of its Representatives who have an actual need to know the Confidential Information but only in the proper provision of the Services and performance of its duties under this agreement and provided that it informs such Representatives of the confidential nature of the Confidential Information before such disclosure.
  2. Subject to clause 7.5, the obligations in clause 7.1 will not apply to any Confidential Information which (as shown by appropriate documentation and other evidence in the relevant Disclosee’s possession):

1. was already known to the Disclosee on a non-confidential basis prior to the time of its first disclosure by the Discloser to the Disclosee, unless it came to be so known as a direct or indirect result of having been:
  1. 1. 1. unlawfully obtained by the Disclosee, whether from a third party or otherwise; or
      2. received by the Disclosee from a third party that owed a confidentiality obligation to the Discloser in respect of that information at the time of such receipt, in circumstances in which the Disclosee knew, or ought reasonably to have known after due enquiry, that the third party owed that confidentiality obligation to the Discloser;
2. is or becomes generally available to the public, unless it became so generally available as a direct or indirect result of having been disclosed by any person:
  1. 1. 1. in circumstances that constitute a breach of this agreement by the Disclosee (for the avoidance of doubt, including any breach by the Disclosee of its obligations under clause (d) to ensure that its Authorised Third Party Disclosees comply with the obligations in this agreement as if they were parties to this agreement in the place of the Disclosee); or
      2. that owed a confidentiality obligation to the Discloser in respect of that information at the time of such disclosure, in circumstances in which the Disclosee knew, or ought reasonably to have known after due enquiry, that the person owed that confidentiality obligation to the Discloser;
3. is, after the time of its first disclosure by the Discloser to the Disclosee, lawfully received by the Disclosee from a third party and the Disclosee reasonably believed, after due enquiry, that the information was not so received as a direct or indirect result of a breach by any person of a confidentiality obligation owed to the Discloser;
4. is required by law or court order to be disclosed, provided that the Disclosee must:
  1. 1. 1. promptly notify the Discloser in writing in advance of any such disclosure, if reasonably practicable; and
      2. reasonably assist the Discloser in obtaining confidential treatment for, or avoiding or minimising such disclosure of, the relevant Confidential Information to the extent reasonably requested by the Discloser;
5. is independently developed by the Disclosee without any direct or indirect use of, reference to, or reliance on any Confidential Information; or
6. is authorised for release or use by the written pre-approval of the Discloser but only to the extent of such written pre-approval.
  1. The exceptions in clause 7.6 shall not apply to any specific Confidential Information merely because it is included in more generally non-confidential information, nor to any specific combination of Confidential Information merely because individual elements, but not the combination, are included in non-confidential information.
7. Non-disparagement
  1. Subject to clause 8.2, on and from the date of this agreement, each party must not:
8. make, express, transmit, speak, write, verbalise or otherwise communicate in any way (directly or indirectly, in any capacity or manner) any remark, comment, message, information, declaration, communication or other statement of any kind (whether verbal, in writing, electronically transferred or otherwise) that might reasonably be construed to be critical of, or derogatory or negative towards, any other party or any Representative of any other party; or
9. cause, further, assist, solicit, encourage or knowingly permit any other person to do so, or support or participate in any other person doing so,

and must take all reasonable steps to prevent its Representatives from doing so.

1. 1. Clause 8.1 shall not prohibit any party from making any statement or disclosure as required by law or court order, provided that such party must:

1. promptly notify the other party in writing in advance of any such statement or disclosure, if reasonably practicable; and
2. reasonably assist the other party in obtaining confidential treatment for, or avoiding or minimising the dissemination of, such statement or disclosure to the extent reasonably requested by any party.
3. Intellectual Property
  1. The parties agree that all Relevant IP will be owned by, and vest in, the Client subject to clause 9.2.
  2. Ownership of all rights, including but not limited to intellectual property rights (including copyright), in any Deliverables, images, written content, designs or any other materials (in either electronic or physical form) provided to the Client by the Company will remain the property of the Company until full payment of the Fees are made.
  3. The Company will store any and all of the Client’s passwords in the Company’s secure LastPass environment for a maximum of 90 days, unless it is a password that the Company needs constant access to and in which case the Company will have full discretion as to whether or not the Client’s password is stored.
  4. The Client acknowledges that any materials provided to the Company in order for it to provide the Services (including, but not limited to, images, written material, copy, electronic files, and computer code) is either original or the Client has the necessary rights to provide those materials to the Company and to use that material for the purposes of the Services which the Company is providing under the Agreement.

Assignment

1. 1. Subject to clause 9.2, the Company hereby assigns, transfers and conveys to the Client all current and future right, title and interest in all Relevant IP and acknowledges that all future Relevant IP will vest in the Client on and from creation.

Company’s duty to assist the Client

1. 1. Subject to clause 9.2, the Company must do anything necessary, including executing any documents, for the purpose of effecting, perfecting and/or protecting the Client’s title to any Relevant IP, in Australia or in such other countries as the Client may require at its discretion.

Permitted use

1. 1. The Company reserves the right to use the Deliverables and any other materials prepared by the Company in the course of providing the Services for the purposes of its own marketing and promoting, including in any printed company portfolio or on its website. This may include the use of the Client’s logo.
  2. If the Client does not wish that the Company exercise its right under clause 9.7, the Client must advise the Company before the commencement of the Services, and the Company will negotiate in good faith with the Client in relation to the limitations to be placed on the use of the material, or (at the sole discretion of the Company) a potential increase in the Estimate in consideration of its agreement to not use the materials.

Disclosure of Relevant IP

1. 1. The Company must immediately disclose in writing to the Client any Intellectual Property Rights that the Company makes, develops or conceives that might reasonably be regarded as Relevant IP.

Moral rights

1. 1. The Company consents to the doing of any acts, or making of any omissions, by the Client or any of the Client’s employees, officers, contractors, agents, licensees or assigns that infringes its Moral Rights in any Works that constitute Relevant IP, including:
    1. (a)not naming the Company as the author of a Work; or
    2. (b)amending or modifying (whether by changing, adding to or deleting/removing) any part of a Work but only if the Company is not named as the author of the amended or modified Work,

whether those acts or omissions occur before, on or after the date of this agreement. The Company acknowledges that its consent pursuant to this clause 9.10 is genuinely given without duress of any kind and that it has been given the opportunity to seek legal advice on the effect of giving that consent.

Non-infringement

1. 1. In providing the Services, the Company must not infringe any rights in any Intellectual Property of any third parties and must not, without proper authorisation, make any use of, or bring into the Client’s computer systems or onto the Client’s premises, any Intellectual Property of any third party.
2. Liability and remedies

Indemnity

1. 1. The Client shall have personal liability for, and hereby irrevocably indemnifies and covenants to hold the Company harmless from and against, any and all Losses that may be suffered by the Company and which arise, directly or indirectly, in connection with any breach of this agreement by the Client and/or its Representatives and/or any negligent or other tortious conduct in the provision of the Services.

Indemnities continuing

1. 1. Each indemnity contained in this agreement is an additional, separate, independent and continuing obligation that survives the termination of this agreement despite any settlement of account or other occurrence and remains in full force and effect until all money owing, contingently or otherwise, under the relevant indemnity has been paid in full and no one indemnity limits the generality of any other indemnity.

Limitation of liability

1. 1. To the maximum extent permitted by law, the Company and its Representatives expressly:
    1. (a)(Disclaimer of warranties) disclaim all conditions, representations and warranties (whether express or implied, statutory or otherwise) in relation to the Services, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement. Without limitation to the foregoing, the Company and its Representatives make no representation, and provide no warranty or guarantee, that:
      1. the Client will achieve any particular results from the provision of the Services;
      2. any particular individuals will perform the Services on behalf of the Company; or
      3. the Services will:
        be error-free or that errors or defects will be corrected; or
        meet the Client’s requirements or expectations; and
    2. (b)(Limitation of liability) limit their aggregate liability in respect of any and all Claims for any Losses that the Client and/or any of its Representatives may bring against the Company under this agreement or otherwise in respect of the Services to the following remedies (the choice of which is to be at the Company’s sole discretion):
      1. re-supply of the Services;
      2. payment of the costs of supply of the Services by a third party; or
      3. the refund of any amounts paid by the Client to the Company under this agreement in respect to the Services,

even if the Company has been advised of the possibility of such Losses,

and the Client acknowledges and agrees that the Company holds the benefit of this clause 10.3 for itself and as agent and trustee for and on behalf of each of its Representatives.

Force majeure

1. 1. To the maximum extent permitted by law, the Company and its Representatives expressly exclude liability for any damage and/or delay in the performance of any obligation of the Company under this agreement where such damage or delay is caused by circumstances beyond the reasonable control of the Company and the Company shall be entitled to a reasonable extension of time for the performance of such obligations, and the Client acknowledges and agrees that the Company holds the benefit of this clause 10.4 for itself and as agent and trustee for and on behalf of each of its Representatives.

Remedies for breach

1. 1. Each party acknowledges and agrees that, in the event of any breach by the other party of the provisions of clause 7 (Confidentiality), clause 8 (Non-disparagement), clause 9 (Intellectual Property) or clause 12 (Non-solicitation), damages may not be an adequate remedy and the first-mentioned party may, in addition to any other remedies, obtain an injunction restraining any further violation by the other party and other equitable relief, without the necessity of showing actual damage and without any security being required, together with recovery of costs. Any Claims asserted by such other party against the first-mentioned party shall not constitute a defence in any such injunction action, application or motion.
2. Termination

Termination for breach

1. 1. The Company may terminate this agreement immediately by notice to the Client if an Event of Default occurs in respect of the Client.
  2. If the Company commits any material or persistent breach of this agreement, the Client may (but is not obliged to) provide the Company with a notice of breach in writing. If the Company fails to remedy the breach within 20 Business Days after the date of its receipt of such notice, the Client may terminate this agreement with immediate effect upon providing the Company with a further notice of termination in writing.

Termination with notice

1. 1. The Client may, without limitation to its rights under clause 11.2, terminate this agreement at any time by giving at least 30 Business Days’ notice to the Company.
  2. The Company may, without limitation to its rights under clause 11.1, terminate this agreement at any time by giving at least 14 Business Days’ notice to the Client. The Client may waive all or part of such notice period.

Effect of termination

1. 1. In the event of any termination of this agreement in any circumstances and for any reason whatsoever:

1. the Client will remain liable to pay all Charges accrued up to and including the date of termination, whether or not invoiced prior to the date of termination (for the avoidance of doubt, in the event of any termination of this agreement by the Client, including Charges incurred by the Company for the purchase of materials for those Services prior to such termination); and
2. the Company will send to the Client a final invoice for the balance of any unbilled Charges accrued up to and including the date of termination and clause 5 will apply in respect thereof.
3. In the event of termination for any reason, the Company retains ownership of all rights (including but not limited to copyright) in any original artwork, design, or written material prepared by the Company in the course of providing the Services (including any Drafts and/or Deliverables). In the event of this termination, the Client acknowledges and agrees that the Client is unable to use any artwork, design, written material, Draft or Deliverable for any purpose without the written consent of the Company.
4. To the extent permitted by law, the decision as to whether to refund any or all of the Fees to the Client is at the sole discretion of the Company.
5. If the Client terminates the Agreement, or an Event of Default occurs resulting in Deliverables not being completed, then the Client will be charged at a minimum of 20% of the amount set out in the Quote at the absolute discretion of the Company.

During notice period

1. 1. In the event that the Company’s engagement under this agreement is terminated upon notice by either party the Client may, at its absolute discretion, require the Company to refrain from providing the Services during the relevant notice period.

Partially completed deliverables

1. 1. Upon the cessation of the Company’s engagement under this agreement, subject to payment of all outstanding Charges by the Client in accordance with the terms of this agreement, the Company will deliver to the Client any and all partially completed Deliverables that are included within the scope of the Services.

Not Used

1. 1. Not used.

Accrued rights

1. 1. Termination of this agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination.

Survival

1. 1. The obligations of the parties under clause 7 (Confidentiality), clause 8 (Non-disparagement), clause 9 (Intellectual Property), clause 10 (Liability and remedies), clause 12 (Non-solicitation) and this clause 11 will survive the termination of this agreement.

1. Non-solicitation
  1. During the Company’s engagement with the Client under this agreement and for each Non-Solicitation Period thereafter, the Client must not, without the Company’s prior written consent (which the Company may withhold or delay in its absolute discretion), directly or indirectly:
2. (non-solicitation suppliers) interfere with or disrupt, or attempt to interfere with or disrupt, any relationship, whether contractual or otherwise, between the Company and any of the Company’s suppliers, distributors or joint venture partners, or identified prospective suppliers, distributors or joint venture partners; or
3. (non-solicitation of staff) induce, encourage or solicit any of the Company’s officers, employees, contractors or agents to cease their employment, engagement or agency with the Company.
  1. The Client acknowledges and agrees that:
4. the restraints in clause 12.1 constitute several separate covenants and restraints consisting of each of clauses 12.1(a) and (b) combined with each separate Non-Solicitation Period severally;
5. each of those separate covenants and restraints is a fair and reasonable restraint of trade that goes no further than is reasonably necessary to protect the Company’s goodwill and business;
6. the Client has received substantial and valuable consideration for each of those separate covenants and restraints, including its receipt of the Services; and
7. breach by the Client of any of those separate covenants and restraints would be unfair and calculated to damage the Company’s goodwill and business and would lead to substantial loss to the Company.
  1. The parties intend the covenants and restraints under clauses 12.1 to operate to the maximum extent. If any of those separate covenants and restraints would, in the absence of this clause 12.3, be void as unreasonable for the protection of the interests of the Company but would not be so void if any part of the wording in this clause 12 was deleted or amended, the separate covenants and restraints will apply with the minimum modifications necessary to make them effective.
8. Notices
  1. A notice given to a party under this agreement must be:
9. in writing in English;
10. sent to the address, fax number or email address of the relevant party as the relevant party may notify to the other party from time to time; and
11. delivered/sent either:
  1. 1. 1. personally;
      2. by commercial courier;
      3. by pre-paid post;
      4. by e-mail.
  2. A notice is deemed to have been received:
12. if delivered personally, at the time of delivery;
13. if delivered by commercial courier, at the time of signature of the courier’s receipt;
14. if sent by pre-paid post, 48 hours from the date of posting;
15. if sent by airmail, 5 days after the date of posting;
16. if sent by e-mail, 4 hours after the sent time (as recorded on the sender’s e-mail server), unless the sender receives a notice from the party’s email server or internet service provider that the message has not been delivered to the party,

except that, if such deemed receipt is not within business hours (meaning 9:00 am to 5:00 pm on a Business Day), the notice will be deemed to have been received at the next commencement of business hours in the place of deemed receipt.

1. 1. To prove service, it is sufficient to prove that:

1. in the case of post – that the envelope containing the notice was properly addressed and posted;
2. in the case of email – the email was transmitted to the party’s email server or internet service provider.
3. Dispute Resolution and Mediation
  1. Subject to clause 14.4, neither the Company or Client may commence or initiate any court proceedings arising out of this Agreement until a party first sends a notice to the other party setting out a full description of the dispute (including a chronology of events, the desired outcome and the action required to settle the dispute). Once a notice has been served under this clause, a managing director of each party (or his or her nominee or delegate) must attempt to resolve the dispute in good faith.
  2. If the dispute is not resolved within 10 Business Days of the notice, or any longer time that the parties may agree in writing, the parties must either agree upon selection of a mediator or request than an appropriate mediator be appointed by or his or her nominee and attend a mediation which will be held in New South Wales, Australia.
  3. The Client will bear the costs associated with any mediation required by this clause.
  4. If the dispute is not resolved by mediation within 30 days, or any longer time the parties may agree in writing, either party may commence or initiate legal proceedings. However, if legal proceedings are initiated, the parties nevertheless agree to act in good faith to endeavour to resolve the dispute using external informal dispute resolution techniques such as mediation, expert evaluation or determination, but not arbitration.
  5. Clauses 14.1 to 14.4 do not apply where a party seeks urgent court intervention (injunctive relief) or terminates this Agreement lawfully in accordance with its terms.
4. General

Further assurances

1. 1. Each party must (at its own expense, unless otherwise provided in this agreement) promptly execute and deliver all such documents, and do all such things, as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of this agreement.

Third parties

1. 1. This agreement is made for the benefit of the parties to it and their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.

Costs

1. 1. All costs and expenses in connection with the negotiation, preparation and execution of this agreement, and any other agreements or documents entered into or signed pursuant to this agreement, will be borne by the Client.

Entire agreement

1. 1. This agreement contains the entire understanding between the parties in relation to its subject matter and supersedes any previous arrangement, understanding or agreement relating to its subject matter. There are no express or implied conditions, warranties, promises, representations or obligations, written or oral, in relation to this agreement other than those expressly stated in it or necessarily implied by statute.

Severability

1. 1. If a provision of this agreement is invalid or unenforceable in a jurisdiction:
    1. (a)it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and
    2. (b)that fact does not affect the validity or enforceability of that provision in another jurisdiction, or the remaining provisions.

No waiver

1. 1. No failure, delay, relaxation or indulgence by a party in exercising any power or right conferred upon it under this agreement will operate as a waiver of that power or right. No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under this agreement.

Amendment

1. 1. This agreement may not be varied except by written instrument executed by all of the parties.

Assignment

1. 1. A party must not assign or otherwise transfer, create any charge, trust or other interest in, or otherwise deal in any other way with, any of its rights under this agreement without the prior written consent of the other party.

Counterparts

1. 1. This agreement may be executed in any number of counterparts, each of which is an original and which together will have the same effect as if each party had signed the same document.

Electronic exchange

1. 1. Delivery of an executed counterpart of this agreement using a digital signing platform, or by email in PDF or other image format, will be equally effective as delivery of an original signed hard copy of that counterpart.

Governing law and jurisdiction

1. 1. This agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by, and shall be construed in accordance with, the laws of New South Wales, Australia.
  2. The parties irrevocably agree that the courts of New South Wales, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this agreement or its subject matter or formation (including non-contractual disputes or claims).

* * * *

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EXECUTED as an agreement.

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