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 Terms of Service

This agreement is made Clients and Marketing Directive.

1.    Overview

1.1   We will provide you with the Services as set out in a tailored Marketing Proposal or you have opted for one of our services via the website. 

1.2  The Agreement between Us (the Service Provider) and You (the Client) is set out in these General Terms and Conditions (T&Cs) and each Proposal.

1.3  In the event of any inconsistency between these T&Cs and the Proposal, the Proposal will prevail to the extent of the inconsistency.

1.4  The Agreement will start on the Commencement Date and continue for the Term.

1.5  A non-refundable Booking Fee is due when for any 1:1 Strategy sessions booked once You sign the T&Cs.  The 1:1 session will not be confirmed or commence until the Booking Fee has been paid.

1.6  If required, The Booking Fee secures a start date for us to commence the Services. 

        a.  If You wish to delay the start date, You must provide Us with a minimum of fourteen (14) days notice. 

        b.  If You do not provide the required notice, or if We have already started the Services, You acknowledge and agree that a Restart Fee may be payable on the final invoice.

1.7  The Services may include Planning Hours, as set out in the Proposal.  This time will include the initial consultation, research, written proposal and revisions.  Additional time will be charged at the rate set out in the Proposal.

1.8  We can offer flexible working hours outside of standard Business Hours to work around Your deadlines and timeframes, however, in order to ensure high-quality work and to enable Us to meet Your deadlines, We will need time to plan the workout. Work required outside of our standard Business Hours will incur a rush rate as set out in the Proposal. All urgent requests must be submitted not less than 48 hours prior to the work needing to be performed, and such requests are subject to mutual agreement. We reserve the right to decline the request. Where We accept to undertake the out-of-office hours work, payment must be made in full upon request.

1.9  If additional work is required, this will be quoted at a daily/hourly rate subject to the work required, and as agreed to in writing between the parties.

1.10  You acknowledge and agree, subject to the nature of the Services being provided, additional special conditions may apply and such special conditions will be set out in the applicable Proposal.

1.11  You acknowledge and agree that You have understood the T&Cs and Proposal prior to signing the Agreement, and have sought professional and/or legal advice if You require clarification on any aspect of the Agreement.

2.    Services and Fees

2.1  The Services and the Key Dates for delivering the Services are as set out in the Proposal, please ensure you review any deadlines and edits to avoid additional costs.

2.2  Any variation to the Proposal must be agreed by You and Us in writing via email after being discussed.

2.3  You will pay us the Fees:

        a. on the relevant Payment Dates as set out in the Proposal and Tax Invoice;

        b. by electronic funds to an account nominated by Us or by another method nominated by Us; and

        c. following receipt of a Tax Invoice from Us.

2.4  If You do not pay Us any portion of the Fees by the relevant Payment Dates:

        a. we may charge You interest at the Interest Rate set out in the Proposal and You will pay Us that interest within 7 days of Us sending You a Tax Invoice; and

        b. where We recover any unpaid Fees through an external agency, You will pay Us all legal costs and collection agency costs involved in the recovery on a full indemnity basis. 

2.5  Retainer clients will be billed monthly following work completed, We operate on a 14 day payment period. 

2.6  We are entitled to vary the daily and/or hourly rate during the Term of this Agreement with 14 days written notice to You, prior to the change being implemented.

3.    Obligations

3.1  We will:
        a. provide the Services in accordance with the Key Dates provided You have given Us all the relevant Client Content within a reasonable time for Us to meet the Key Dates;
        b. provide the Services to a reasonable standard and of a reasonable quality; 
        c. make any reasonable changes, which You request in writing by the Feedback Dates, to the Services to ensure that they comply with the requirements of the Proposal; 
        d. where the Services incorporate web design services, upon completion of the Services and delivery of the Final Content, We will be available for the period specified in the Proposal for reasonable technical support to correct any possible errors or deficiencies relating to the website design;
        e. not correct errors or deficiencies which are due to the improper use of the website or due to any third party add-ons, however, in Our sole discretion, should We agree to assist You, this will be at an additional cost; andf.comply with all Applicable Laws.

3.2  You will:
        a. promptly provide Us with all the necessary Client Content and any other information reasonably requested by Us to perform the Services and/or meet Our Obligations;
        b. to the extent applicable, ensure You have appropriate insurance in place;
        c. comply with any reasonable request by Us relating to the Services, the Proposal or the Client Content; and
        d. comply with all Applicable Laws.

3.3  You agree that:
        a. We will not be liable for any failure to perform the Services, meet the Key Dates or perform Our Obligations to the extent it is caused by a failure by You to comply with your obligations under the Agreement; 
        b. You provide us access to passwords and permission to Your social media accounts at Your own risk and acknowledge that loss may be incurred from this that is not in any way Our fault, but may be incurred from the mere granting of access or sharing of information;
        c. We are not responsible for any unforeseen advances in technology that may negatively affect the Services We provide;
        d. if You or Your Employees or a Force Majeure Event prevent or delay Us from meeting Our Obligations then We may reschedule the Key Dates.  The Service Provider shall not be deemed in breach of this Agreement if the Service Provider is unable to complete the Services and/or Deliverables or any portion thereof.

4.    Intellectual Property Rights

4.1  Upon full payment of the Fees and subject to this clause 4, We:

        a. will assign to You all ownership rights (excluding Moral Rights) in Our Assigned IP for use by You in Your business for the Agreed Purpose;

        b. will sign any documents reasonably necessary to give effect to that assignment provided You pay Our reasonable costs associated with any assignment;

        c. retain the right to reproduce, publish and display the Services and Final Content together with reference to You, including using your business name, trade marks, and/or logos, in portfolios, on websites, and in galleries, design periodicals and other media or exhibits for the sole purpose of recognition of creative excellence or professional advancement, and to be credited with the authorship of the Services in connection with such uses; and

        d. will retain the right to be credited with the authorship of the Services and Final Content.

4.2  If the Services or Final Content includes Our Retained IP, You agree that:

        a. We retain ownership of all Intellectual Property Rights (including Moral Rights) in Our Retained IP;

        b.t o the extent that the Services and Final Content contain Our Retained IP, You are granted (after full payment of all Fees) a limited right to use Our Retained IP and:

                i. it may only be used for the purposes set out in this Agreement, as part of the Final Content and for the Agreed Purpose;

                ii. You will not modify the Services or Final Content; and

                iii. You will not sub-licence, publish, sell, or otherwise provide the Services or Final Content or allow it to be used by third parties; and

        c. We may refer to You, including using Your business name, trade marks, and/or logos, in Our portfolios, websites, galleries, design periodicals and other media or exhibits for the sole purpose of recognition of creative excellence or professional advancement.

4.3  You and We acknowledge that all Third Party Materials are the exclusive property of their respective owners. We will inform You of all Third Party Materials that may be required to perform the Services or otherwise be integrated into the Final Content. If that happens:

        a.We will inform You of any need to obtain a licence and any costs associated with obtaining a licence; and

        b. You agree to pay the costs for the use of Third Party Materials within 7 days of Us giving You notice.

5.    Termination

5.1  We may terminate the Agreement with immediate effect, by giving You written notice if:

        a. You do not pay the Fees when due by the Payment Dates;

        b. You do not provide (within a reasonable time of Our request) the Client Content or any information or material necessary for Us to perform the Services; 

        c. We consider that mutual trust and/or confidence no longer exists; 

        d. You otherwise breach any undertaking, warranty or obligation under the Agreement; or

        e. We determine that We are no longer able to perform the Services for any reason.

5.2  If We terminate the Agreement in accordance with clause 5.1(e):

        a. We will complete all work for which You have paid the associated Fees; or

        b. We will, at Our sole discretion, refund Fees paid for work not yet performed or not able to be performed as a result of termination of the Agreement.

5.3  Subject to clause 5.1, either party may terminate the Agreement by mutual agreement, or if the other party:

        a. commits a material breach of the Agreement that is capable of remedy and does not remedy that breach within 7 days of receiving written notice;

        b. commits a material breach of the Agreement which is not capable of remedy; orc.becomes insolvent or bankrupt.

5.4  Without limiting Our rights, if the Agreement is terminated:

        a. You must immediately pay Us all Fees payable for the work completed at the date of termination;

        b. provided You have paid Us all Fees due, We will submit to You all work done up to the date of termination which comprise the Services;

        c. any Fees paid for Services not yet undertaken may be refunded at Our sole discretion;

        d. each party must return or destroy (at the other party’s request) all Confidential Information of the other party; and

        e. Our obligations to carry out the Services cease.

6.    Warranties and Indemnities

6.1  You and We agree that:

        a. the nature of certain Services means that We are unable to guarantee particular results, and any examples of Services provided to other clients is provided to You as a representation of potential results only;

        b. the results achieved by the Services will vary depending on economic conditions, Your sales processes, the quality of services You provide, and a range of other factors beyond Our control;

        c. the Services and Final Content are provided on an “as is” basis without representation, warranty or condition of any kind (either express or implied);

        d. 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; 

        e. 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; and

        f. if any condition or warranty is implied into the Agreement and cannot be excluded and We are able to limit Your remedy for breach of such a condition or warranty, then Our liability is limited:

                i. 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;

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

6.2  You must indemnify and hold harmless Us and Our Employees from all claims and losses arising from loss, damage, liability, injury to Us, Our Employees and third parties, infringement of third party Intellectual Property Rights (including Moral Rights), or third party losses by reason of or arising out of:

        a. any information (including Client Content) You supply to Us; or

        b. the Services We provide to You.

6.3  You and We agree that:

        a. 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, personnel or contractors; 

        b. 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; 

        c. in no event will either party be liable to the other party for any incidental, indirect, consequential, punitive or special damages (including damages to business reputation, lost business or lost profits), whether foreseeable or not and however caused, even if such party is advised of the possibility that such damages might arise. The foregoing restrictions will not apply to a party’s confidentiality and indemnification obligations under the Agreement;

        d. Our liability to You (including under indemnity):

                i.is capped to the return of all Fees paid; and

                ii. will be reduced to the extent that the acts or omission by You or Your Employees contribute to or cause the liability. 

        e. We will not be liable for any Services or Final Content that has been accepted by You in accordance with the  Agreement.

7.    Confidentiality and Privacy

7.1  Each party agrees that, unless it has the prior written consent of the other party, it will:
        a. keep confidential at all times, the Confidential Information of the other party; and
        b. ensure that any personnel, advisors, agents, employees or contractors to whom Confidential Information is disclosed, is aware of and complies with this clause; however, these obligations of confidentiality do not apply to any disclosure that:
                i.is for the purpose of performing the Agreement or exercising a party’s right under the Agreement;
                ii.is required by Applicable Law; or
                iii.relates to Confidential Information which is publicly available through no fault of the receiving party or its personnel, or was rightfully received from a third party without restriction and without breach of any obligation of confidence.

7.2  Any Confidential Information supplied to Us by You that incorporates personal information will be dealt with in accordance with Our Privacy Policy, which is available on Our website.

8.    Miscellaneous

8.1  Relationship of Parties

You and We agree that:

        a. We are independent contractors and that the relationship between You and Us does not constitute a partnership, joint venture, agency or the relationship of employer and employee; 

        b. We will be the exclusive provider of the Services during the Term however, we may offer similar services to others, solicit other clients and advertise our services; and

        c. We may use subcontractors to perform some or all of the Services, and these subcontractors may be located outside of Australia.

8.2  Restraint Period

During the Restraint Period, You agree not to solicit, recruit, engage or otherwise employ or retain any of Our Employees on a full-time, part-time, consulting or any other kind of basis. In the event of a breach of this clause, You agree that We are entitled to an agency commission on the basis of the following:

        a. An amount being 25% of the said person’s starting salary with You; and

        b. You will pay the agency commission amount to Us within 7 days of Our employee being retained, engaged or employed by You.

8.3  Disputes

If there is any dispute or if You are not happy about the Services:

        a. Please contact Us so that we can discuss and both parties will use their best efforts to resolve any dispute under, or in connection with the Agreement, through good faith negotiations with the other party.

        b. In the event of a dispute arising out of this Agreement that cannot be resolved by mutual agreement, the Parties agree to engage in mediation in the state of New South Wales and shall refer the dispute to an independent mediator as agreed and will use their best endeavours to resolve the dispute in mediation. All costs associated with the dispute (including legal, mediation or arbitration fees), will be at Your expense.

8.4  Notices

A party giving notice under this Agreement must do so in writing to the address specified in the Proposal, or such other address as specified in the Proposal. Subject to the method of delivery, the notice will be considered to be delivered:

        a. By hand: date of delivery;

        b. By registered or express post: 3 Business Days after date of posting if sent express or registered post otherwise within 5 Business Days; and/or

        c. By email: If the sender’s email does not receive a delivery failure notice on the date the email is sent.

8.5  Entire Agreement

The Agreement constitutes Our entire agreement with You about the subject matter and supersedes all previous agreements, understanding and negotiations on that subject matter.

8.6  Governing Law

The formation, construction, performance and enforcement of the Agreement will be in accordance with the laws in force in the state of New South Wales, Australia. You and We submit to the exclusive jurisdiction of the courts of that jurisdiction.

8.7 Execution and Counterparts

The Agreement will become binding when any one or more counterparts of the Agreement,  individually or taken together are signed by the parties. The Agreement may be executed in counterparts and by way of electronic signature, including by clicking “I consent” or “I agree” or similar and if so, will be considered an original, properly executed.

8.8  Amendment or Variation

Any amendment or variation to the Agreement is not effective unless in writing agreed by You and Us.

8.9  Validity

Whenever possible, each provision of the Agreement will be interpreted in such a manner as to be effective and valid under Applicable Law, but if any provision of the Agreement is held invalid or unenforceable, the remainder of the Agreement will nevertheless remain in full force and effect and the invalid or unenforceable provision will be replaced by a valid or enforceable provision. 

8.10  Assignment

You cannot assign the Agreement or otherwise deal with the benefit of it or a right under it without Our prior written consent. We may assign or novate the Agreement or otherwise deal with the benefit of it or right under it without Your consent.

8.11  Interpretation

In the Agreement, clause and other headings are for ease of reference and do not affect the interpretation of the Agreement and:

        a. words in the singular include the plural and vice versa;

        b. a reference to a party to the Agreement includes the party’s permitted assigns; and

        c. a reference to “including” and similar words do not imply any limit.

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