These terms and conditions comprise the Consultancy Services Agreement between the Consultant and the Client.
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The estimate of fees shall be binding on the Consultant for 30 days after presentation to the Client. If the estimate is not confirmed within that time the estimate of fees may be subject to variation.
The Consultant shall provide to the Client the Services described in the accompanying letter. In providing these Services, the Consultant shall exercise the reasonable skill and professionalism of a qualified designer and keep the Client informed on aspects of the Services relevant to the Project.
The Client shall provide to the Consultant a briefing and all necessary further information concerning the Client’s requirements for the Project including any program for provision of the Services which the Consultant shall be entitled to rely upon for completeness and accuracy.
The Client shall undertake prompt reviews of the Services when requested, issue written approvals of accepted work and written directions on matters of significance as and when reasonably required. The Consultant shall act in accordance with these approvals and reasonable directions.
The Client shall pay to the Consultant fees and reimbursable expenses as agreed. A deposit of 50% of the estimated fees will be required unless otherwise stated. The Consultant reserves the right not to provide any services until the deposit has been paid. Payments shall be made in full within the stated period for payment of invoices. Monies not paid within that period shall attract interest, unless otherwise agreed, at 2% over the 90 day Bank Bill rate from the date of invoice until payment in full. The Consultant reserves the right to withhold any Deliverables until any outstanding invoice is paid in full.
Fees stated are exclusive of GST. GST applicable under GST legislation shall be stated on invoices and be payable by the Client in addition to payment for the Services and reimbursable expenses to which it applies.
Unless the fee is expressed to be calculated on a time cost or other basis the fee shall be fixed except in the event that the Client requires:
• A change in scope, nature, timing, sequencing or quantum of the Services,
• A change to work that has received prior Client approval or become the basis for subsequent work,
• A prolongation of the program for performance of the Services, beyond the control of the Consultant.
In such circumstances the Consultant shall become entitled to an additional fee, assessed on a time basis unless another basis is agreed. The Consultant shall also become entitled to extend or vary any delivery schedule for performance of the Services.
If the Client or any third party initiates or approves any change to the Deliverables which are not approved by the Consultant, the Client accepts that the changes and any resulting works shall not be the responsibility of the Consultant.
The Client agrees to review the Deliverables promptly and either approve the Deliverables or provide written comments and/or corrections sufficient to identify the concerns of the Client. The ability of the Consultant to meet any timelines for performance of the Services will be dependent on prompt feedback from the Client. Any delay caused or contributed to by the Client shall not constitute a breach of this Agreement by the Consultant.
The Consultant shall maintain Professional Indemnity Insurance and shall furnish evidence of such insurance to the Client upon request.
Personal information held by the Consultant shall be utilised in accord with the Privacy Act 1988 (as amended). A copy of the Consultant’s privacy policy is available on request.
The Consultant shall undertake any prudent tests of the Deliverables prior to delivery to the Client. Within five business days of receipt of each Deliverable the Client shall notify the Consultant of any failure of any Deliverable to comply with the specifications incorporated in this Agreement or any other corrections changes or amendments required by the Client. Any such written notice shall be sufficient to identify with clarity any objection correction or amendment. In the absence of such notice from the Client the Deliverable shall be deemed accepted by the Client.
The Client shall be responsible for performing coordination of any decision making with parties other than the Consultant. The Client shall provide all necessary client content in a form suitable for reproduction or incorporation into the Deliverables without further involvement of the Consultant. The Client shall be responsible for final proof reading and approval of the Deliverables.
Where the Services relate to original works over which other parties have moral rights the Client shall take reasonable measures to identify and satisfy the moral rights of those other parties.
The Client acknowledges that the Consultant shall be attributed as the author of the Deliverables and shall not alter the Deliverables without first consulting the Consultant and giving it the right to comment on any proposed alteration.
Publication or publicity of the Deliverables arranged or permitted by the Client shall give attribution to the Consultant for the Services it has performed. The Consultant may utilise images of the Deliverables for its portfolio website and in galleries design periodicals and other media or exhibits for the purpose of recognition of creative excellence or professional advancement. The Consultant will not disclose to other parties information identified by the Client as confidential except as required by law or as required to seek advice from its professional advisors, or where disclosure is required to its employees or sub-consultants in order to perform the Services or if such information is already in the public domain.
The Consultant shall retain copyright in all Deliverables provided under this Agreement and in the works executed from them and grants a non- exclusive licence to the Client to utilise the Deliverables for the purpose expressed in this Agreement but not for any other purpose. Should the stated purpose of the Services not proceed or where full and prompt payment of all fees and expenses are not made by the Client the Consultant will be at liberty to revoke this licence. The Consultant may use any design or other Deliverable in other assignments it may undertake.
If the Client is in breach of any obligation to make payment to the Consultant under this Agreement, the Consultant may revoke the licence referred to in preceding clause, and the Client then shall return all Deliverables to the Consultant.
Any dispute between the Client and the Consultant shall first be the subject of mediation, provided that this provision shall not prevent the Consultant from instituting legal action at any time to recover monies owing by the Client to the Consultant.
The Client may terminate its obligations under this Agreement:
• in the event of substantial breach by the Consultant of its obligations under this Agreement, which the Consultant has not commenced to be remedied within 7 days of written notice from the Client requiring the breach to be remedied, or
• upon giving the Consultant 14 days written notice of its intention to do so.
Upon termination, the Client shall pay to the Consultant within 7 days all amounts accrued to the date of termination to which the Consultant is entitled under this Agreement.
The Consultant may suspend or terminate its obligations under this Agreement:
• in the event of monies payable to the Consultant under this Agreement being outstanding for more than 14 days,
• upon giving the Client 14 days written notice of its intention to do so.
and the Consultant shall be entitled to payment for proper costs of demobilisation of resources and proper remobilisation costs.
If the Client requests copies of any Deliverables after completion of the Services or termination of this Agreement, the Consultant may make a proper charge for production.
Neither party may assign, transfer or sub-let any obligation under this Agreement without the written consent of the other. Unless stated in writing to the contrary, no assignment, transfer or sub-letting shall release the assignor from any obligation under this Agreement.
This Agreement is subject to, and the parties submit to, the non-exclusive jurisdiction of the Courts of the State of Victoria, Australia.
This Agreement may only be amended by written agreement, signed by authorised representatives of each party.
The Client shall exercise any discretion contemplated in this Agreement applying objective and reasonable standards and requirements, and shall not make the exercise of any discretion, approval or other cognitive process subject to any unreasonable condition or delay.
Electronic data issued by the Consultant in connection with the Services may be subject to errors or omissions, corrupt data, incorrect operation of equipment and/or systems on which the data is used, infringement of Intellectual Property Rights which may be the property of another party, and/or any other cause beyond the control of the Consultant. The Consultant shall not be liable to the Client for any claim, action or demand arising from such cause.
The Client consents to the Consultant issuing such electronic data and agrees to be responsible for all costs, expenses, fees and liability arising from its utilisation by other persons or organisations.
The recipient of any data transferred electronically by the Consultant in the course of performing the Services shall be responsible for the accuracy and completeness of the data transferred.
No right under this Agreement shall be deemed to be waived, except by written notice signed by the waiving party. A waiver by either party shall not prejudice its right in respect of any subsequent breach of the same or any other right of the other party.
Each party warrants:
• it has the power to execute this agreement and all necessary corporate and other action has been taken to authorise that execution; and
• if this agreement is signed on behalf of a party, the signatory is authorised to do so.
This Agreement shall be for the benefit of and binding on the parties and their respective successors but shall not be for the benefit of any other person. The provisions of this Agreement which are capable of having effect after expiry or termination of this Agreement shall remain in full force and effect following the expiration or termination of this Agreement.
If an unavoidable delay occurs, the contractual obligations of the party concerned shall be suspended and the period for fulfilling obligations shall be extended, without penalty, for a period equal to such suspension. The party claiming an unavoidable delay shall use its best endeavours to overcome the unavoidable delay and minimise the consequences of the delay.
In the absence of any written agreement to the contrary, the terms of this Agreement shall apply to any other services provided by the Consultant to the Client at any time after the date of this Agreement.
The Client shall make payment of all monies due and payable to the Consultant pursuant to this Agreement without set-off or counterclaim and free of any deduction. The requirement to pay fees and expenses and GST to the Consultant are essential terms of this Agreement, and any breach of them shall entitle the Consultant to all legal and other remedies for breach of an essential term.
Where a party comprises more than one legal person, a reference to that party in this Agreement shall be a reference to them jointly and each of them separately.
The Client acknowledges that these conditions and the accompanying letter replace and prevail over any existing agreement applying to the Services and apply retrospectively to any of the Services provided prior to submission of the fee proposal.
Subject to any later contrary written agreement these conditions shall be binding on the Client in respect of the Services if the Client instructs the Consultant to proceed with the Services after submission of the fee proposal.
If any person or company is substituted for the Client both the named Client and the substitute Client shall be jointly and separately liable to the Consultant for payment of all fees and reimbursable expenses as agreed. Substitution of any company or person as the Client shall not release the named Client from any liability to the Consultant and the substituted Client shall be jointly and separately liable for all obligations of the named Client to the Consultant.
The Consultant shall perform the Services under the general direction of the Client but the Consultant shall determine the manner and means by which the Services are performed.
The Consultant may engage third party designers or other service providers as independent contractors to perform any part of the Services but the Consultant shall remain responsible for such third parties compliance with this Agreement.
During the term of this Agreement and for a period of six months after expiry or termination of this Agreement the Client shall not solicit recruit engage or otherwise employ or retain any employee or sub-consultant of the Consultant.
The Client may engage third parties to perform services of the same or similar nature to the Services and the Consultant shall be entitled to offer and provide similar services to third parties without restriction by the Client.
The Client shall indemnify the Consultant against any damage liability cost loss or expense arising from any claim demand or action by a third party relating to material provided by the Client for use in performance of the Services.
Not withstanding any other provision in this Agreement or at law the maximum liability of the Consultant for any damage loss expense or claim relating to this Agreement whether arising in contract tort or otherwise shall be limited to the net profit of the Consultant arising from performance of the Services in exchange for payment of the fees.
Any content provided by the Client to be included in the Deliverables shall remain the property of the Client and the Client grants the Consultant a non-exclusive non-transferable worldwide royalty free licence to use reproduce modify display and publish the content for the purposes authorised by this Agreement.
The Consultant retains all rights in and to all preliminary works generated in the course of performing the Services. The Client shall return all preliminary works to the Consultant within thirty days of completion of the Services and all rights in and to any preliminary works shall remain the exclusive property of the Consultant.
In the absence of any written agreement to the contrary, the Consultant retains all rights and title in and to any original artwork comprising the Deliverables including all rights to display or sell such artwork. The Client shall return all original artwork to the Consultant within thirty days of completing the Services or any earlier termination of this Agreement.
The Client acknowledges and agrees that the Consultant’s Intellectual Property Rights remain the property of and vest in the Consultant. All designer tools developed by the Consultant shall remain the exclusive property of the Consultant. The Consultant grants the Client a non- exclusive non-transferrable perpetual worldwide licence to use the designer tools strictly to the extent necessary for the Client to utilise the Deliverables. The Client shall not directly or indirectly decompile reverse engineer or otherwise create derivative works or otherwise disassemble or modify any designer tools comprising any software or technology of the Consultant.
The Consultant does not guarantee any specific search engine results for the website created for the Client. The Consultant shall perform basic search engine optimisation according to current professional standards.
The Client shall be responsible for maintaining back-ups with respect to any website created by the Consultant and the Consultant shall not be liable to restore any Client data or Client website except to the extent that such data loss arises from any negligent act or omission of the Consultant.
The Consultant shall supply the Client with account credentials for domain name registration and/or website hosting that the Consultant may purchase on behalf of the Client once registration and/or website hosting fees have been paid by the Client.
The Consultant shall use current versions of well supported content management systems to create any website for the Client in expectation that any such website is compatible with the most common modern web browsers.
Subject to payment of the fees and expenses in accord with this Agreement the Consultant will address any reported system errors or bugs with any website created by the Consultant as part of the Services for a period of three months after delivery and approval of the website.
On payment of all fees and expenses due to the Consultant pursuant to this Agreement the Consultant shall grant the Client a royalty free worldwide licence to use the website created by the Consultant and its related software and contents for the life of the website.
Any printed work and the arrangement of print services by the Consultant shall be deemed to comply with this Agreement if the final printed product is within acceptable variations as to kind quantity and price in accordance with current trade practices identified by the supplier of the print services. Whenever commercially reasonable and if available the Consultant shall provide copies of any current trade practices to the Client.
Dates for video production shall be agreed in advance and confirmed by the Client.
If any dates for video production are cancelled by the Client for any reason cancellation fees shall apply –
• Within 7 days of production date - 25% of daily shoot rate.
• Within 48 hours of shoot date – 50% of daily shoot rate.
• Within 24 hours of shoot date – 100% of daily shoot rate.
The Client shall be responsible for the safety and adequacy of any premises to be used for video production and appropriate insurance shall be taken out by the Client. Whenever requested by the Consultant in writing, the Client must provide evidence, to the Consultant’s reasonable satisfaction, that the Client has obtained and maintained insurance required under this agreement. If requested to do so by the Consultant the Client must also provide the Consultant with copies of the insurance policies taken out by the Client in connection with this agreement.
Any video production shall be delivered in accord with any agreed brief through concept design meetings and/or written approvals.
The Consultant shall produce one master copy of any video production for use by the Client. Further copies shall attract an additional charge.
Any timelines given for performance of the Services and production of any master copy of a video production are estimates only and shall not be binding on the Consultant.
The Deliverables shall be made available for acceptance at agreed stages. At each agreed stage changes to the Services shall only be permitted to the extent that such changes are consistent with the brief. After completion of the final master copy of any video production the Consultant shall only be obliged to undertake any change or alteration that will take less than three man hours. Any additional work required by the Client shall be undertaken by the Consultant at the relevant daily rate identified in this Agreement.
The Consultant does not guarantee any specific search engine results for the website created for the Client. The Consultant shall perform basic search engine optimisation according to current professional standards.
The Client shall be responsible for maintaining back-ups with respect to any website created by the Consultant and the Consultant shall not be liable to restore any Client data or Client website except to the extent that such data loss arises from any negligent act or omission of the Consultant.
The Consultant shall supply the Client with account credentials for domain name registration and/or website hosting that the Consultant may purchase on behalf of the Client once registration and/or website hosting fees have been paid by the Client.
The Consultant shall use current versions of well supported content management systems to create any website for the Client in expectation that any such website is compatible with the most common modern web browsers.
Subject to payment of the fees and expenses in accord with this Agreement the Consultant will address any reported system errors or bugs with any website created by the Consultant as part of the Services for a period of three months after delivery and approval of the website.
On payment of all fees and expenses due to the Consultant pursuant to this Agreement the Consultant shall grant the Client a royalty free worldwide licence to use the website created by the Consultant and its related software and contents for the life of the website.
Any printed work and the arrangement of print services by the Consultant shall be deemed to comply with this Agreement if the final printed product is within acceptable variations as to kind quantity and price in accordance with current trade practices identified by the supplier of the print services. Whenever commercially reasonable and if available the Consultant shall provide copies of any current trade practices to the Client.
Dates for video production shall be agreed in advance and confirmed by the Client.
If any dates for video production are cancelled by the Client for any reason cancellation fees shall apply –
• Within 7 days of production date - 25% of daily shoot rate.
• Within 48 hours of shoot date – 50% of daily shoot rate.
• Within 24 hours of shoot date – 100% of daily shoot rate.
The Client shall be responsible for the safety and adequacy of any premises to be used for video production and appropriate insurance shall be taken out by the Client. Whenever requested by the Consultant in writing, the Client must provide evidence, to the Consultant’s reasonable satisfaction, that the Client has obtained and maintained insurance required under this agreement. If requested to do so by the Consultant the Client must also provide the Consultant with copies of the insurance policies taken out by the Client in connection with this agreement.
Any video production shall be delivered in accord with any agreed brief through concept design meetings and/or written approvals.
The Consultant shall produce one master copy of any video production for use by the Client. Further copies shall attract an additional charge.
Any timelines given for performance of the Services and production of any master copy of a video production are estimates only and shall not be binding on the Consultant.
The Deliverables shall be made available for acceptance at agreed stages. At each agreed stage changes to the Services shall only be permitted to the extent that such changes are consistent with the brief. After completion of the final master copy of any video production the Consultant shall only be obliged to undertake any change or alteration that will take less than three man hours. Any additional work required by the Client shall be undertaken by the Consultant at the relevant daily rate identified in this Agreement.
