This Agreement is between Kady Creative Pty Ltd ABN 69 619 395 390 (Kady Creative) and the Client.
IT IS AGREED AS FOLLOWS:
This Digital Agreement (this Agreement) includes any schedules, annexures, attachments relating to this Agreement that are provided with this Agreement, or separately, which also form part of this Agreement. By proceeding with payment for the Services, the Client will be deemed to have read, understood and accepted to be bound by the terms and conditions contained herein, and that this version is the sole requirement for this Agreement to be binding on the parties. The Client acknowledges and agrees that if it does not accept these terms and conditions, it must not proceed with the Services.
2.1 In this Agreement, unless expressed or implied to the contrary:
Approved Purpose means the purpose specified in this Agreement.
Business means the business of Kady Creative and includes any business carried on under any brand name associated with Kady Creative, or by any subsidiary or associated entity of Kady Creative.
Client includes any person or organisation (or representative of any person or organisation) who is the named recipient of the Proposal.
Client Accounts means all accounts owned or operated by the Client, including but not limited to, social media accounts, emails, and web-hosting platforms which are relevant to the Services.
Client Content means any content owned or held by the Client, which is relevant to the Services.
Client System means any computer or other technology system owned or operated by the Client, which is relevant to the provision of the Services, including but not limited to, access to Client Accounts as required by clause 4.3.
Commencement Date means the date specified in the Proposal as the commencement date.
Completion Date means the date on which the Services are to be completed as stated in the
Proposal or as subsequently determined in accordance with this Agreement.
Deliverables means the objectives and desired outcome of the Services as outlined in the Proposal.
Deposit means the non-refundable down payment of fifty percent (50%) of the Fees as stipulated by the Proposal, payable prior to the Commencement Date.
Design Material means any material that exists at the beginning of the Services and which is provided in connection with the Services, in whatever form, including but not limited to documents, specifications, reports, products, information, data, drawings, graphics, images, raw design files, and any material provided in connection with the Services that is created, written, or otherwise brought into existence by or on behalf of Kady Creative during the performance of the Services.
Deposit means a non-refundable down payment of 50% of the project cost pursuant to the
Direction includes agreement, approval, authorisation, certificate, decision, demand, determination, explanation, instruction, notice, order, permission, rejection, request, and requirement.
Fees means the fees payable by the Client to Kady Creative for the Services specified in the Proposal.
Hourly Rate means $150 + GST per hour, or as otherwise agreed between the parties.
Pre-existing Intellectual Property means any works, materials, data or information owned by, licensed to or in the possession of that which was in existence on or before the Commencement Date or created or developed by that party after the Commencement Date independently of this agreement or any works, materials, data or information provided by the other party.
Project means that which relates to the Client and the Services as outlined in the Proposal.
Proposal means the document sent to the Client outlining the details of the Project.
Project Timeline means the estimated timeline and milestones for completing the Project, as outlined in the Proposal.
Scope of Works means the scope of services to be performed by Kady Creative under this Agreement, as described in the Proposal.
Services means the branding, web design, e-book design, book design, and any other services accessible at and as specified in the Proposal, and for the purpose of this Agreement does not include Technical Web Services
Technical Web Services means, but is not limited to, Software updates, Domain names, Hosting and registration, SSL certificates, Email addresses, and Email hosting.
Timeline means the timeline and milestones for completing the Project and the Services, as outlined in the Proposal of this Agreement.
Work or Works means any specialist works that have flowed from the Design Work.
Working Hours means Monday to Friday between 0900 hours and 1700 hours AEDT.
3.0 TERM OF AGREEMENT
This Agreement commences on the Commencement Date and terminates on the Completion Date, unless terminated earlier in accordance with these Terms and Conditions or as otherwise agreed in writing between the parties (Term). The parties may renew or extend this Agreement for a further term by agreement in writing.
4.0 THE SERVICES
4.1 Provision of Services
Kady Creative acknowledges that it is an independent contractor to the Client and not an employee, partner, or agent of the Client. Kady Creative will not represent itself to any other person as an employee, partner, or agent of the Client, nor represent that it is able to bind the Client to any third party.
Kady Creative will do all things reasonably required to ensure that the Services are performed with due care, skill and diligence, in a professional and ethical manner, within the scope of its expertise, and to the Client’s reasonable satisfaction.
Any change to the Scope of Works outlined in the Proposal must be agreed upon in writing between the parties and the Proposal must be updated accordingly.
The Client agrees, where Kady Creative is engaged for work outside of Working Hours, additional services or additional consultations, additional fees shall apply, and the Client may be invoiced separately for these fees.
All client communication regarding the Services must be done via telephone or email during Working Hours. Any emails or calls received outside of these times will be responded to during Working Hours.
Kady Creative will use its best endeavours to meet the Project Timeline set out in the Proposal however, the Client acknowledges that Project deadlines are subject to the vagaries of the marketplace and other variables.
The Client acknowledges and agrees all representations, recommendations, and referrals made by Kady Creative for third-party contractors and suppliers are made in good faith, but Kady Creative makes no warranties as to the suitability or reliability such third parties, or guarantees as to the Deliverables of the Services.
4.2 Design Work
The Client agrees it is entitled to three (3) rounds of revision during the design process as stipulated in the Proposal. Any further revision or changes to the finalised Design Work may incur further fees.
Notwithstanding the above clause 4.2(a), Kady Creative offers the Client unlimited rounds of revision to its logo for a three-week period from the Commencement Date. Any further revision will incur further fees charged at the Hourly Rate.
For each round of revision, the Client must provide feedback in a written document or email. Feedback provided over the telephone or an instant messaging application will not be accepted or approved.
Kady Creative may outsource and facilitate all or part of Project on behalf of the Client to accompany design plans and schedules and shall oversee the Design Work of third-party contractors.
Any delay in the completion of the Project due to, but not limited to, actions or negligence of the Client, unusual transportation delays, unforeseen illness or external forces beyond the control of Kady Creative shall entitle Kady Creative to extend the Completion Date for time lost, upon notification to the Client.
4.3 Client Accounts
To provide some of the Services, Kady Creative may require the Client to provide Kady Creative with passwords to its social media, email or other personal online accounts. The Client acknowledges it provides these to Kady Creative of its own free will and consents to Kady Creative accessing its private accounts and personal data for the provision of the Services, and acknowledges if it does not provide the passwords to its accounts, Kady Creative may not be able to provide some or all of the Services.
Notwithstanding the parties’ obligations in clause 4 and clause 5, the Client agrees to remain responsible for maintaining its accounts during the term of the Services, and that Kady Creative will not be liable for any loss or damage arising from the Client’s failure to protect its personal data, accounts, or any information in the accounts.
The Client agrees to notify Kady Creative immediately of any unauthorised or improper use of, or breach of security to, the account. To help protect against unauthorised or improper use, Kady Creative will make sure it logs out at the end of each session requiring the Client’s username and password.
At the termination or completion of the Services, the Client agrees to change all passwords to the accounts Kady Creative had been given access to.
4.4 Lead Times
All lead times are listed at the time of presenting the quotation and are as accurate as possible. Whilst Kady Creative endeavours to meet anticipated lead times, it will not be responsible for changes in lead times where delays occur due to circumstances outside its control or due to delays caused by the Client.
Unless requested by the Client, delivery of the finalised Project will be done digitally through email or a file hosting service. It is the responsibility of the Client to ensure that it has downloaded all the content within a timely manner.
In the event the Client has failed to download content and it is subsequently removed from the file hosting service, there may be additional fees incurred to re-deliver the content.
5.0 CLIENT OBLIGATIONS
The Client agrees to:
comply with all applicable laws and regulations, including the relevant insurance, permits, licences, and any approvals required;
provide a thorough brief, including details of the Client’s budget and deadlines, all necessary written, visual or audio content or any other information as required;
co-operate with Kady Creative, provide clear and reasonable Direction, instruction, and guidance, and review and approve the Design Material in a timely manner; and
provide access to the Client Content, Client Accounts and Client System as reasonably required by Kady Creative to provide the Services.
6.1 Fees and Expenses
The Client will pay Kady Creative the Fees as agreed in the Proposal and any additional fees for additional services or time.
The amounts outlined in the Proposal, unless specified as a fixed cost, are estimates only and may differ from the final amount invoiced to the Client. If further services or further time is required to complete the Services, Kady Creative will notify the Client and provide them with an update of the Fees.
Payments not received by the due date will result in work cessation. Kady Creative reserves the right to refuse Completion or delivery of work until past due balances are paid. The Design Material may be retained as security until all just claims against the Client are satisfied.
6.2 Goods and Services Tax
Unless otherwise specified, all Fees including any ancillary expenses are exclusive of GST, and where GST is applicable, it will be applied as indicated in the invoice.
If GST is payable in respect of a service or product provided under or in relation to this Agreement, the Client must pay to Kady Creative an amount equal to the GST payable on the service or product (GST Amount). The GST Amount is payable by the Client in addition to, and at the same time as, any consideration for the service or product.
Kady Creative’s payment-processing merchant will provide electronic invoices in accordance with the Fees Schedule in the Proposal or as agreed.
Where the charges to the Client’s nominated credit card are rejected or fail for any reason, or the Client has failed to pay any invoice after thirty (30) days and upon the issue of a further invoice, Kady Creative may suspend the provision of Services at its full discretion with no liability for any consequences that result from ceasing work in these circumstances.
If the Client disputes any invoice issued under this clause 6.3, the Client must notify Kady Creative of the amount in dispute and the reason for the dispute by the invoice due date, and pay any amounts not in dispute until such time as the dispute is resolved.
Kady Creative is entitled to charge interest equivalent to the reference rate charged by the Reserve Bank for any amount not paid by the invoice due date, and after sixty (60) days increase the interest to the equivalent of the pre-judgement interest rate set by the Local Court of New South Wales, as well as any administration fees for its time in seeking costs.
6.4 Returns and Refunds
Kady Creative reserves the right to refuse or grant refunds for the Services, as stipulated by the Competition and Consumer Act 2010 (Cth). Any requests by the Client for refunds must be detailed in writing and will only be considered when options for remedies or replacements have been exhausted.
7.0 CONFIDENTIAL INFORMATION AND PRIVACY
7.1 Obligations with Respect to Confidential Information
may use Confidential Information of the Discloser only for the purposes of this Agreement;
must keep confidential all Confidential Information of the Discloser except:
for disclosure permitted under this clause 7; and
to the extent (if any) the Recipient is required by law to disclose such Confidential Information; and
destroy or return all Confidential Information immediately upon request.
Kady Creative agrees to comply with the Privacy Act 1988 (Cth), all other applicable privacy laws, and such other data protection laws as may be in force from time to time which regulate the collection, storage, use, and disclosure of information about identifiable individuals (Personal Information) held by or on behalf of the Client to the extent that it is legally obligated to comply with these laws.
8.0 INTELLECTUAL PROPERTY
8.1 Pre-Existing Intellectual Property
Each party will retain ownership of its respective Pre-Existing Intellectual Property. Neither party acquires the right, title or interest in or to the Pre-Existing Intellectual Property by virtue of this Agreement or the disclosure or use of the Pre-Existing Intellectual Property in the course of performing the Services, other than as expressly set out in this Agreement.
The Client grants Kady Creative a royalty-free, perpetual, revocable, worldwide, personal, non-exclusive licence to use, copy, duplicate or print the Client’s Pre-Existing Intellectual Property for the purpose of performing the Services and its obligations under this Agreement, and without the right to re-sell, share or commercially exploit the Client’s Pre-Existing Intellectual Property.
Kady Creative grants the Client a royalty-free, revocable, worldwide, personal, non-exclusive licence to use, copy, duplicate or print Kady Creative’s Pre-Existing Intellectual Property or the Design Material strictly for the Approved Purpose and Project, and without the right to sub-license, transfer, assign, re-sell, share or commercially exploit it.
8.2 Intellectual Property in the Design Materials
Upon full payment of the Fees in accordance with this Agreement, Kady Creative shall transfer the ownership of the Design Work and warrants to the Client that the Design Work does not infringe the rights of any third party.
8.3 Moral Rights
Kady Creative warrants that it will, prior to the Commencement Date, obtain written consent from all authors and holders of any Moral Rights which may be affected by the actions of Kady Creative in:
not attributing the person as the author of the Intellectual Property; or
engaging in any act or omission that would otherwise infringe on that person’s Moral Rights.
Kady Creative consents to any act or omission by the Client which would otherwise infringe their Moral Rights, and confirms to giving up their rights as otherwise conferred by Part IX of the Copyright Act 1968 (Cth).
8.4 Media Consent and Release
The Client hereby acknowledges and agrees, unless expressly denied in writing, to authorise Kady Creative to publish photographs or reviews of the Design Work, for use in print, online and digital, publications, platforms and mediums for the purposes of marketing and promotion, and to release and hold harmless Kady Creative from any reasonable expectation of privacy or confidentiality (regardless if names and locations have been withheld) or from liability for any claims in connection with the above said, and understands there is no financial compensation of any type.
9.1 Total Liability
To the fullest extent permitted by law (and to the extent permitted under Australian Consumer Law), the total liability of Kady Creative under or in connection with this Agreement in respect of all Claims (if any) is limited to the Fees paid or payable for the Services and in any event, will never exceed the available proceeds of the professional indemnity and/or public liability insurance coverage of Kady Creative.
Notwithstanding, nothing in this Agreement is intended to limit any Australian Consumer Law guarantees or warranties that may apply to the Services and that cannot be excluded.
9.2 Consequential Loss
In no case shall Kady Creative, its officers, employees, affiliates, agents, contractors, or licensors be liable for any Consequential Loss arising from the Client’s failure to provide Client Content or approve the Design Materials within a reasonable time, failing the use of any of the Services or for any other Claim related in any way to the Client’s use of or reliance on the Services or the Design Materials platforms, including but not limited to, any errors or omissions in any content, or any loss or damage of any kind including loss of income, incurred as a result of the use of any content posted, transmitted, or otherwise made available via the Services, even if advised of their possibility, illegal or malicious activities.
The Client indemnifies and must keep indemnified Kady Creative against all Claims and Losses suffered by Kady Creative arising out of any breach of this Agreement by the Client, any act or omission of the Client, and any breach of a law by the Client, except to the extent the Claim or Loss is directly caused or contributed to by a reckless or negligent act or omission of Kady Creative.
10.1 Termination on Notice
Either party may terminate this Agreement at any time by giving 30 days written notice of termination. Where the Project is thirty (30) days or less, only fourteen (14) days notice will be required.
If the Client gives notice under this clause 10.1, the Client agrees that Kady Creative will retain the Deposit, and the Client will pay to Kady Creative any outstanding fees or expenses owing for the work completed up to and including the date of termination, and any additional fees as stipulated by the terms of this Agreement.
If Kady Creative terminates this Agreement, Kady Creative will only retain any outstanding fees or expenses owing for the work completed up and to and including the date of termination.
10.2 Termination on Default
A party may terminate this Agreement, effective immediately with written notice if:
the other party commits a material breach of this Agreement, and does not rectify that breach within seven (7) days;
the other party commits a material breach of this Agreement that it is incapable of rectification or remedy within seven (7) days;
the other party is charged or is convicted of a serious criminal offence, or any offence connected with theft, fraud, or deception; or a party is in jeopardy of becoming subject to any form of insolvency administration or ceases to carry on business.
10.3 Consequence of Termination
The Client and Kady Creative will use their best endeavours to reach a settlement to the most appropriate and efficient way of concluding the remaining aspects of the Project.
Kady Creative will not be liable for any losses, costs and/or expenses incurred or sustained by the Client as a result of termination of this Agreement.
The termination or conclusion of this Agreement does not affect or effect any release of any accrued rights or remedies of a party in respect of events, acts, or omissions that occurred prior to the termination or conclusion of this Agreement.
Upon termination of this Agreement for any reason or at any time, the Client must pay to any third party any amounts payable for the Services provided up to the date of termination within thirty (30) days, and the parties must on request, immediately destroy or return to the other party all Confidential Information and Intellectual Property.
Clauses 2, 7, 8, 9, and this clause 10.3(e) survive any expiration or termination of this Agreement and will have effect for the benefit of the parties.
11.0 DISPUTE RESOLUTION
The parties must use reasonable endeavours to resolve all disputes through negotiation.
If the dispute cannot be resolved through negotiation between the parties within fourteen (14) days of the dispute arising, either party may commence proceedings.
If any provision or part of this Agreement is void or unenforceable for any reason, then that provision or part will be severed from this Agreement and the rest of this Agreement shall be read as far as possible as if the severed provision or part had never existed.
12.1 Entire agreement and variation
The parties agree that this Agreement is the entire agreement between Kady Creative and the Client in respect of this arrangement and supersedes any other communication or understandings (whether written or oral) between Kady Creative and the Client in that regard, and any changes to this Agreement must be agreed in writing between Kady Creative and the Client prior to the changes coming into effect.
12.3 Governing law
This Agreement is governed by the laws applicable in the state of New South Wales, Australia, and the parties agree to irrevocably submit to the exclusive jurisdiction of the courts of New South Wales.