SERVICES AGREEMENT

General Terms & Conditions

By entering into a business relationship with The Creative Wunderkind Pty. Ltd. T/A Verve Design (we, us, our, the designer) herein referred to as the Service Provider, you (the Client, Client Representative) agree and consent to the following terms and conditions.Please also note that from time to time Verve Design may need to alter these terms and conditions without notice. Please contact us via email at – info@verve.design – if you do not understand any of the terms or conditions in this document.

1. 1. 1. OVERVIEW

This Services Agreement is between the Service Provider and the Client.

The Service Provider provides a range of creative agency services including; logo, brand design, illustration, graphic design, digital design, animation and large format design; and the Client wishes to enter into an agreement for these services and as specifically set out in the Proposal.

This Services Agreement consists of these General Terms & Conditions (T&Cs) and the Proposal along with any subsequent Proposal between the parties from time to time (Agreement).

The Proposal contains the specific information that is relevant to the Service Provider’s unique arrangement with the Client, and is designed to be read alongside the T&Cs.

If there is any inconsistency between the T&Cs and the Proposal, the content of the Proposal will prevail to the extent of the inconsistency. Subject to the nature of the Services being provided, additional Special Conditions may apply as set out in the Proposal.

Any variation to the Proposal must be mutually agreed upon in writing.

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 RIGHTS AND OBLIGATIONS

The Client acknowledges that they:

have full power, capacity and authority to enter into and perform their obligations under the Agreement;

have read and understood the T&Cs and the Proposal prior to signing the Agreement; 

are solely responsible for determining whether the Services are appropriate for them; and  

have sought professional and/or legal advice should they require clarification on any aspect of the Agreement.

The Client further acknowledges, agrees and accepts that they will: 

provide all necessary and accurate Client Information, documentation, and data relevant to the project in a timely manner as set out in this Agreement;

promptly review and provide feedback on deliverables and will approve or request revisions within the agreed-upon timeframe as set out in this Agreement

ensure the availability of any required materials, items, or resources necessary for the successful execution of the Services;

make timely decisions on design choices, selections, and other relevant matters to prevent delays in the project;

ensure payments of Fees will be made on time and as set out in this Agreement;

maintain open and effective communication with the Service Provider, promptly addressing any questions, concerns, or requests for information; 

facilitate the timely completion of the Services by adhering to the Key Dates set out in the Proposal

fulfill any obligations related to third-party agreements or services that are integral to the progress of the Services; and 

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.

The Client will also furnish the Service Provider with essential password access to designated website, domain, social media or canva 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.

3. SERVICE PROVIDER OBLIGATIONS

3.1 Service Standards and Professional Conduct
The Service Provider shall always conduct themselves in a professional manner while providing the services. This includes being punctual, respectful of the Client’s rights and providing the Services to a reasonable standard and of a reasonable quality consistent with industry best practices, and the Service Provider will actively engage in quality assurance processes to monitor and enhance service delivery.  

3.2 Schedule and Key Dates
The Service Provider agrees to perform the Services and provide the Services, Deliverables and Final Content to the best of the Service Provider ability and in accordance with the Key Dates as set out in the Proposal. If Services outside the scope are required, these will be quoted separately at the Service Provider’s Hourly Rate.

3.3 Graphic Design Services
Where Graphic Design Services are provided, 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.

3.4 Raw files 
Raw files, such as source files (PSD, AI, INDD files etc), are considered out of the standard scope of services provided by the Service Provider.  Service Provider may, at their discretion, choose to provide these raw files to the Client.  Should the Service Provider agree to provide raw files, this will incur additional charges, which will be clearly communicated to the Client.  The Client agrees to pay these additional charges as specified by the Service Provider prior to any such raw files being supplied to the Client. 

3.5 Modification to Raw files 
In the event that the Service Provider agrees to provide raw files to the Client, the Service Provider is not responsible for any issues or errors that may arise from the Client’s modifications to the raw files.  If the Client requires the Service Provider to correct problems caused by such modifications, this service will be provided to the Client at an additional cost.  The Client accepts full responsibility for any changes made to the raw files after delivery and agrees not to hold the Service Provider responsible for any complications that result from these changes.

4. MUTUAL OBLIGATIONS

Each party agrees that:

1. they will maintain valid and adequate insurance coverage during the term of this Agreement. The insurance coverage should be sufficient to protect against any claims that may occur during the provision of the Services; 
2. they will comply with all Applicable Laws;
3. 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 
4. 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 the Key Dates accordingly. 

5. FEES AND PAYMENT TERMS 

5.1 Booking Fee / Deposit
A non-refundable Booking Fee/ Deposit of 50% of the project fee is required to reserve a Start Date and Time in accordance with the Proposal and is designed to offset the administrative and operational costs associated with processing and reserving resources for the Service Provider services.  If the Client wishes to delay the start date, the Client must provide the Service Provider with a minimum of 14 days’ notice, otherwise a Restart Fee may apply.

5.2 Fees
All Fees will be payable via electronic funds transferto the Service Provider’s nominated bank account [within 7 days of receiving a Tax Invoice/on the Payment Dates set out in the Proposal]. The Client will receive a Tax Invoice from the Service Provider prior to payment being due in each instance. All amounts payable or other consideration provided in respect of amounts payable in relation to this Agreement are exclusive of GST unless otherwise stated.  All GST must be paid at the time any payment to which it relates is payable (provided a tax invoice has been issued). 

5.3 Expenses
The Client agrees to cover any out-of-pocket expenses incurred by the Service Provider in the course of delivering the Services to the Client. These additional expenses will be approved by the Client in writing prior to being incurred.

5.4 Increase to Hourly Rate
The Service Provider is entitled to vary their Hourly Rate during the Term on providing the Client with 14 days’ written notice, this will not affect any Fee already agreed and as set out in the Proposal, however it may impact any future Services and any out of scope work. 

5.5 Additional work Fees
If the Client engages the Service Provider to complete additional work (outside of the scope of the original Proposal) the Service Provider will issue the Client with an estimate of additional work fees, charged at the Service Provider hourly rate. Once agreed by the Client, the Service Provider will issue the Client with a tax invoice for the additional work, payable within seven (7) days. The Service Provider will not be able to commence the additional work until the tax invoice has been paid in full. 

5.6 Recovery of Unpaid Fees
If the Client do not pay the Service Provider any portion of the Fees within the stipulated timeframe, the Service Provider reserves the right to cancel any upcoming appointment and suspend further Services until the outstanding payment is settled. 

5.7 The Service Provider may charge the Client interest at the Interest Rate set out in the Proposal. If unpaid Fees are recovered through an external agency, the Client acknowledges that the Client will be responsible for the costs involved in the recovery.

6. NO CANCELLATION 

Once this Agreement is executed and the Services have commenced, cancellation by either party is not permitted except as provided for in clause 13 or in the case of a Force Majeure Event. Both the Service Provider and the Client are committed to fulfilling their obligations under this Agreement. The Client is responsible for providing all necessary materials and instructions in a timely manner, and the Service Provider will deliver the Services in accordance with the requirements set out in the Proposal.

7. RESCHEDULING OR CANCELLATION BY CLIENT

7.1 Client Rescheduling
The Client may request to reschedule consultation by providing written notice to the Service Provider at least 2 hours prior to the scheduled consultation. Notice of rescheduling must be sent via email or text message to the contact information provided by the Service Provider in the Proposal. The Service Provider will use their best efforts to accommodate the Client’s rescheduling request based on availability. 

7.2 Client Cancellation
If the Client cancels a consultation and chooses not to reschedule or it cannot be rescheduled, please be advised that the consultation is considered forfeit. The opportunity to utilise this session will not roll over to any future dates, and the session will be lost without eligibility for a refund or credit.   

8. RESCHEDULING OR CANCELLATION BY SERVICE PROVIDER

8.1 Service Provider Rescheduling
The Service Provider may need to reschedule consultations due to unforeseen circumstances such as a scheduling conflict. In such cases, the Service Provider will notify the Client as soon as possible and work with the Client to find an alternative time.  

8.2 Actions of Client
The Service Provider reserves the right to cancel consultations or withhold the Services if the actions of the Client (including any Employees) prevent or significantly hinder the Service Provider from safely and effectively providing the Services. If the Service Provider is unable to complete the Services or any portion of the Services due to the actions of the Client, the Client shall not be entitled to any refunds or compensation for the cancelled or uncompleted Services. 

9. REFUNDS 

9.1 Booking/Deposit Fees 
Subject to the payment terms set out in clause 5.1, the Client understands, agrees and accepts that Booking/Deposit Fees are non-refundable in all circumstances, except as required by law. The Booking/Deposit Fee is considered reasonable to cover administrative costs, pre-allocated time, and lost opportunity to accommodate other clients. The Client understands, agrees and accepts that if they nominate to terminate the Agreement at any time during the Term, the Booking/Deposit amount is understood to have been forfeited. 

9.2 Fees 

Due to the nature of the Services and Deliverables, the Client cannot request a refund from the Service Provider where:

1. the Client has changed their mind;
2. the Client’s personal or financial circumstances have changed; 
3. the reason for termination is outside of the Service Provider’s control; and/or
4. the Client insists on Services being performed in a way that is against their advice.

Refunds will be offered in accordance with both Australian Consumer Law and applicable state Fair trade legislation. The Service Provider is permitted to exercise their discretion in any circumstances where a refund of any fees already paid by the Client may be appropriate.   

9.3 Processing
Where it is determined that a refund is due, the Service provider will organise prompt payment via: 

1. the original payment method; or
2. as otherwise agreed between the parties. 

9.4 Post-Refund Obligations
Where the Client receives a refund either directly from the Service Provider the Client acknowledges, agrees and accepts that they will: 

1. destroy all electronic copies of any Intellectual Property issued to the Client by the Service Provider during the Term of the Agreement and provide written confirmation to teegan@vervedesign.org once completed; and
2. not use any Intellectual Property of the Service Provider for any purpose. 
3. Where the Client does not comply with clause 9.4 the Service Provider is entitled to recover the fees refunded through a formal debt recovery process including any interest on the outstanding amount and seek further legal remedies, where appropriate. 

10. CLIENT INFORMATION AND FEEDBACK

The Client acknowledges that 

1. they will be required to provide the Service Provider with clear and comprehensive Client Information, instructions, and specifications for the Services as set out in the Proposal;
2. the Service Provider will rely upon information the Client provides as being accurate to the extent of the Client’s knowledge and the Client is responsible for providing the Service Provider with updated information throughout the Term of the Agreement; 
3. the Service Providers ability to meet the Key Dates is partially dependent on how promptly the Clients feedback or approval is provided. 
4. they will be required to provide written feedback or approval within fourteen (14) days of the Service Provider sending materials to the Client at any stage during the Term of the Service Provider Agreement; and 
5. 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 the Service Provider Hourly Rate. 

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.

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.

The Service Provider will not be liable for any errors or defects in the Final Content after they have been accepted by the Client, and the correction of any errors or defects after completion of the Final Content will be subject to the Service Provider Hourly Rate. 

11. DELAYS AND NON-COMPLETION

The Service Provider will not be liable for any failure to perform the Services or meet the Key Dates to the extent that it is caused by the Clients noncompliance with their obligations under the Agreement. 

If the Service Provider is delayed or prevented from performing the Services or meeting the Key Dates, either due to their noncompliance with their obligations or a Force Majeure Event, the Service Provider reserves their right to reschedule the Key Dates. 

If the Service Provider is unable to reschedule the Key Dates due to a Force Majeure Event, this shall not be deemed a breach of the Agreement.  

If the Service Provider is unable to perform the Services for any reason and is unable to reschedule the Key Dates, the Client are entitled to terminate the Agreement and receive a full refund of Fees paid, less deductions for Services already performed. 

12. INTELLECTUAL PROPERTY

12.1 Licence Grant
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. 

12.2 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.

12.3 Client provided Intellectual Property
For any intellectual property that the Client issues to the Service Provider during the Term of the Agreement, the Client warrants that they are the owner of this intellectual property and indemnify the Service Provider against any claim made by a third party arising out of any breach of intellectual property rights.  

12.4 Usage and Distribution of Final Content
The Client shall have the right to use the Final Content for the Agreed Purpose, as specified in the Proposal. 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 the Client grant access to any Deliverables and Final Content. 

12.5 Assignment of Intellectual Property

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.

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.

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. The Client agrees not to sublicence, publish, sell the Final Content or otherwise provide the Final Content to third parties except in accordance with the Agreed Purpose.

The Service Provider retains ownership of all Intellectual Property Rights in the Retained IP outlined in the Proposal and grants the Client a limited licence to use it for the Agreed Purpose on full payment of the Fees.

12.6. Ownership of Preliminary Work and Raw files

The Service Provider retains full ownership of all preliminary works, raw files, concepts, sketches, and any other materials created in the process of developing the final design, regardless of whether they are included in the final delivered product or not.  These preliminary works are considered proprietary and confidential.  The Client acknowledges that these preliminary works are the sole property of the Service Provider and may not be used for any purpose without the express written consent of the Service Provider.   

12.7 Moral Rights and Third Party Rights

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.
The Client and the Service Provider 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:

1. the parties will agree and obtain a licence and any costs associated with obtaining a licence; and
2. any costs associated for the use of Third-Party Materials will be borne by the Client.

12.7 This clause survives termination or expiry of this Agreement.

13. TERMINATION 

13.1 Termination for convenience 

Either party may terminate this Agreement by providing written notice to the other party by providing at least 14 days’ notice (Notice Period). The termination notice must be sent via email or certified mail to the contact listed within the Proposal.  

Work and Fees During Notice Period

1. Upon notice of termination, the following options are available:
   The Service Provider may continue to perform the agreed upon Services during the Notice Period, with Fees to be provided for this work as outlined in the Agreement; or
2. Alternatively, the Service Provider may choose to cease work immediately.  In this case, the Service Provider will issue a pro-rata refund for any prepaid services that have not been rendered;
3. If the Service Provider opts to continue to work during the Notice Period, the Client is obligated to provide all necessary support and materials as previously agreed upon to enable the completion of the work during the Notice Period; and
4. Any work completed up until the point of termination, whether prior to or during the Notice Period, are due and payable in accordance with the payment terms set out in this Agreement.

13.2 Termination by Service Provider

The Service Provider may terminate the Agreement with immediate effect if: 

the Client does not pay the Fees by the Payment Dates or within the timeframe specified in the Proposal or applicable tax invoice; 

the Client fails to provide the Client Information or other information within a reasonable time of the Service Provider request; 

the Client otherwise breaches any obligation under the Agreement; 

the Service Provider considers that mutual trust or confidence no longer exists; 

the Service Provider determines that they are no longer able to perform the Services for any reason. 

If the Service Provider terminates the Agreement in accordance with clause 13.2 the Service Provider will, at the Service Provider sole discretion: 

complete all work for which the Client have paid the associated Fees; or 

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, as well as any additional costs or damages incurred as a result of the breach.

13.3 Termination by Client (for Breach) 

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 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.

13.4 Termination by either party (breach or Force Majeure)

Either party may terminate the Agreement if the other party: 

is unable to meet their obligations due to a Force Majeure Event for a period exceeding [30] days;

commits a material breach of the Agreement which is not capable of remedy; and/or

becomes insolvent or bankrupt. 

14. POST TERMINATION OBLIGATIONS 

14.1 Outstanding Fees

The Client shall pay all outstanding Fees and expenses incurred up to and including the termination date within 7 days of receiving the final invoice.

14.2 Revocation of Access

Upon termination, the Client’s access to any exclusive services, websites and resources provided by the Service Provider will cease.

14.3 Return of Property

the Service Provider will promptly return any property provided by the Client for the purpose of performing the Services; and 

where the Client has any property belonging to the Service Provider, they must promptly return such property to the Service Provider. 

14.4 Maintain Confidentiality 

each party must continue to maintain the confidentiality of any confidential information disclosed during the term of the Agreement and return or destroy (at the other party’s request) all Confidential Information of the other party; and

the Service provider may be required to retain Client’s records for a period consistent with legal and ethical record keeping requirements as stipulated by applicable law and will hold such records in compliance with privacy legislation.

15. WARRANTIES AND INDEMNITIES

The parties warrant that they have full power, capacity and authority to enter into and perform their obligations under the Agreement. 

The nature of certain Services means that the Service Provider is unable to guarantee particular results, and any examples of Services provided to or created for other clients is a representation of potential results only. 

The Client acknowledges that the Service Provider cannot be held responsible for any negative impact on the Services as a result of inaccuracies in information provided to the Service Provider by the Client, nor the cost of rectifying such inaccuracies. 

The Service Provider is not liable for any errors or omissions in Final Content after it has been approved by the Client. 

The Service Provider is not responsible for any unforeseen advances in technology that may negatively impact on the Services they provide.

The parties agree that: 

except as set out in this Agreement, the Services are provided on an “as is” basis without representation, warranty or condition of any kind (either express or implied); 

all express or implied warranties, representations, statements, terms and conditions relating to the Agreement or its subject matter which are not contained in the Agreement, are excluded from the Agreement to the maximum extent permitted by law;  

nothing in the Agreement excludes, restricts or modifies any condition, warranty, right or remedy implied by or imposed by any law (including statute or regulation) which cannot be lawfully excluded, restricted or modified; 

if any condition or warranty is implied into the Agreement and cannot be excluded and the Service Provider is able to limit the Client’s remedy for breach of such a condition or warranty, then the Service Provider’s liability is limited: 

in the case of goods, to the replacing of the goods or of acquiring equivalent goods or payment of the cost of having the goods repaired; 

in the case of services, to supplying the services again or the payment of the cost of having the services supplied again.  

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, by either party or their respective affiliates, officers, directors, agents, or employees.

The parties agree that: 

neither party will be responsible, liable or held in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is directly caused by the other party failing to comply with its obligations under the Agreement or negligence or misconduct of the other party or its employees, agents, guests, personnel or contractors;  

each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done by the other party under or in connection with the Agreement; and

in no event will either party be liable to the other party for any Consequential Loss. 

The Client acknowledges and agree that the Client are providing the Service Provider access to the Clients online accounts, including passwords and permissions, at the Clients own risk. While the Service Provider will take reasonable measures to ensure the security of the Clients accounts, the Client understands that there are inherent risks associated with sharing access and information.  

The Service Provider strongly recommends that the Client maintain strong security practices for the Clients accounts, including regularly updating passwords, enabling two-factor authentication, and promptly reporting any suspicious activity. The Client also acknowledge that the Service Provider is not responsible for any loss incurred from security breaches, and that any loss resulting from such breaches is not in any way the Service Provider fault.

The Service Provider will use appropriately secure protections and protocols, however given the nature of electronic communication and data storage, the Service Provider cannot be held responsible for third party interception, virus transmission, or issues with cloud-based storage facilities, including loss of data. 

The information the Service provider provides through their services does not constitute professional business, financial or legal advice, regardless of whether they are licensed professionals of any type. The Service Provider cannot be held liable for any action taken by the Client in reliance on the information provided. The Client agrees to consult with the relevant licensed professional/s prior to taking any action. 

This clause survives termination or expiry of this Agreement.  

16. LIMITATION OF LIABILITY

The liability of each party to the other party (including under indemnity) is mutually capped to:

the total amount of all 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

This clause survives expiry or termination of this Agreement. 

17. CONFIDENTIALITY AND PRIVACY

Each party agrees that, unless it has the prior written consent of the other party, it will: 

keep the Confidential Information of the other party confidential at all times; 

ensure that any person to whom Confidential Information is disclosed is aware of and complies with this clause; and 

where there is prior consent, inform the other party of any proposed disclosure, including the form of disclosure, within a reasonable timeframe. 

These obligations of confidentiality do not apply to any disclosure that: 

is for the purpose of performing the Agreement or exercising a party’s rights under the Agreement; 

is required by Applicable Law; or 

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. 

Any Confidential Information supplied to the Service Provider that incorporates personal information will be dealt with in accordance with the Service Provider’s Privacy Policy, which is available on their website www.verve.design/privacy.  

This clause survives termination or expiry of this Agreement. 

18. MARKETING AND PROMOTION

Recognition 

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 (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.

Testimonials  

The Client consents to the use of any testimonials, reviews, or feedback provided to the Service Provider for promotional and marketing purposes. The Client understands that these testimonials may be published on the Service Provider’s website, social media platforms, marketing materials, and other promotional channels. 

Right to Withdraw Consent  

The Client has the right to withdraw their consent at any time. To do so, the Client must notify the Service Provider in writing, and the Service Provider will promptly cease the use of such materials for promotional purposes.

19. MISCELLANEOUS

Relationship of Parties

The Service Provider are independent contractors and the relationship between the Client and the Service Provider 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. The Service Provider may use subcontractors to perform some or all the Services.

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.  The Client acknowledges that the Service Provider is the exclusive provider of the Services for the Term.

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:

1. The non-breaching party may initiate the dispute resolution process as outlined in clause 19.6 of this Agreement to resolve the matter amicably.
2. 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.

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.

Disputes

In the event of any dispute arising under or in connection with this Agreement during the Term, the parties shall first seek to resolve the matter amicably through direct negotiation. Both parties agree to engage in good faith efforts to settle any dispute promptly. If the dispute cannot be resolved within thirty (30) days following the date of a written notice of dispute, either party may propose to enter into alternative dispute resolution (ADR).

ADR may include mediation or arbitration conducted by a neutral and recognised entity, pursuant to its rules and procedures. The parties shall mutually agree upon the choice of ADR method and the governing rules. Any decision or award resulting from such ADR shall be final and binding and may be entered as a judgment in any court of competent jurisdiction.

Each party shall bear its own costs in connection with the ADR process, and the parties shall equally share the fees and expenses of the mediator or arbitrator unless otherwise agreed by the parties or as directed by the arbitrator or mediator according to applicable rules.

Except where urgent interim relief is sought from a court, neither party may initiate formal legal proceedings until the ADR process has been concluded.

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.

Entire Agreement

This Agreement constitutes the Service Provider entire agreement with the Client about the subject matter. It supersedes all previous agreements, understandings and negotiations, whether written or verbal. 

Governing Law

The formation, construction, performance and enforcement of the Terms will be in accordance with the laws in force where the Service Provider resides. The Client and The Service Provider submit to the non-exclusive jurisdiction of the courts of that jurisdiction.

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.

Amendment or Variation 

The Service Provider reserve the right to amend or vary the Agreement and the Service Provider will notify the Client of the changes.  The Client can choose to terminate if they do not accept the amendments and/or variations.  If the Client continues to engage the services, the Client is deemed to have accepted the amendments and/or variations to these Terms.

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. 

Assignment

The Client is not permitted to assign the Agreement or otherwise deal with any rights under it without the Service Provider prior written consent. Conversely, the Service Provider may do so without the Clients consent.

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.

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1. DEFINITIONS

In the Agreement, the following terms have the stated meaning unless a contrary intention appears.

Term	Definition
Administration Fee	means the fee that may apply for Administrative Services as set out in the Proposal.
Agreed Purpose	means the purpose set out in the Proposal for which the Service Provider is performing the Services, and the Client are entitled to use the Deliverables.
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 The Service Provider 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	means the party 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.
Employees	means, in respect of a party, any of its employees, consultants, suppliers, subcontractors, agents or advisors.
Fees	means the amounts payable by the Client to the Service Provider as set out in the Proposal.
Final Content	means all content developed by or for the Service Provider, 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 The Service Provider 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.
Interest Rate	means the annual interest rate that applies to unpaid Fees as set out in the Proposal.
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.
Payment Dates	means the scheduled dates payments will become due for any Fees as set out in the Proposal.
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.
Restraint Period	means the period of time set out in the Proposal during which the Client are prevented from utilising the services of the Service Provider employees or contractors.
Retained IP	means the intellectual property retained by the Service Provider as set out in the Proposal.
Service Provider	means the party set out in the Proposal.
Services	means the services as set out in the Proposal.
T&Cs	means these General Terms and Conditions.
Tax Invoice	has the meaning as set out in A New Tax System (Goods & Services Tax) Act 1999 Cth.
Term	means the term of the Agreement starting on the Commencement Date and ending on completion of the Services or as otherwise specified in the Proposal or unless terminated prior.
Third Party Materials	means all materials, including any documents, designs, photography and information of a Third Party.