Key Terms
Below is a summary of key terms set out in our Terms and Conditions.
Approval
The Project Estimate, must be approved in writing prior to commencement of Services by Adcreators Australia.
Fees for Service
The Fee for the Services is set in clause 4.2.
Payment
Invoices must be paid in accordance with provisions of clause 4
Additional work/revisions
Any additional work/revisions requested by the Customer and approved by Adcreators Australia will incur additional fees, including changes to the scope of work, subject to provisions in clause 4.3.
Disbursements
All disbursements incurred by contractors on behalf of the Customer, including cost of copies, communications, transport.
Fees for production
Unless otherwise agreed, the Fee excludes all production or manufacturing costs, including photography, printing, copywriting, illustration, manufacture or delivery costs.
Expiry of proposal
The Estimate can be accepted within three months from the date of the Estimate, after which it will expire unless otherwise agreed.
Copyright
The Customer owns all intellectual property rights in all Results and Proceeds of the Services subject to the special conditions in the Agreement. The Customer must pay all Fees owing under this Agreement.
Trade marks
The Customer is solely responsible for clearing and registering all trade marks, domain names, logos and any similar materials and marks and all due diligence associated with the selection of a particular mark or design.
Confidentiality
The Consultant must keep the Customer’s confidential information confidential in accordance with the provisions of clause 9.
Amendments to Agreement
Any amendment to the Estimate or this Agreement must be approved by both parties in writing in advance.
Terms and Conditions of Service
1. Definitions
In this Agreement:
Affiliate means a company or other legal entity which directly or indirectly controls or is controlled by a party, or which is directly or indirectly controlled by a company or other legal entity which directly or indirectly controls such party. For the purposes of this paragraph, “control” means the right to exercise 50% or more of the voting rights to determine the direction and management of such company or other legal entity.
Agreement means the agreement formed as contemplated by clause 2 below between Adcreators Australia and the Customer comprising these Terms and Conditions of Service, the Estimate and the Key Terms.
Confidential Information means the confidential information of the Customer which is in oral or visual form or is recorded or stored in any format, disclosed by the Customer or acquired or accessed directly or indirectly by the Consultant as follows:
(a) Information relating to the requirements, development and design of the Services;
(b) Information relating to the Customer’s operations, facilities, customers, personnel, policies, assets and programs (including personal information), business strategies, past and future business, financial position and administration, trade secrets and know-how;
(c) The Results and Proceeds
(d) The [client] Materials
(e) Information relating to the terms upon which the Services are supplied pursuant to this Agreement and includes:
(i) all notes, compilations, analyses, extracts, summaries or other documents prepared by the Customer which reflect, utilise or relate, whether in whole or in part, to any of the information referred to in paragraph (a);
(ii) the existence and content of this Agreement and any other instruments entered into or to be entered into in connection with this Agreement; and
(iii) the fact that information is being made available by the Customer to the Consultant.
Consultant means Adcreators Australia. Customer means the customer to whom the Estimate is addressed, or as otherwise agreed.
Customer Materials means any content or materials (if any) of any nature provided by the Customer to Adcreators Australia for incorporation in the Results and Proceeds or for Adcreators Australia’s performance of the Services.
Estimate means the fee estimate and any applicable terms and conditions set out in the document entitled “Estimate” which accompanies these Standard Terms and Conditions of Service. Fee means the amounts payable by the Customer under clause 4.2, notwithstanding any different amount set out in the Estimate.
Customer Materials means any Intellectual Property Rights in content or materials (if any) of any nature created by or on behalf of Adcreators Australia or its Affiliates in the process of providing the Results and Proceeds, but excluding for the avoidance of doubt Adcreators Australia’s IP. Intellectual Property Rights means all industrial and intellectual property rights of whatever nature throughout the world conferred under statute, common law or equity, whether existing now or at any time in the future, and includes rights in respect of or in connection with copyright, designs, inventions (including patents), formulae, databases, business processes and methods, trademarks, service marks, business names, trade names, domain names, designs, confidential information, trade secrets and know-how and similar industrial and intellectual property rights, whether or not registered or registrable, and includes the right to apply for or renew the registration of such rights.
Key Terms means the applicable key terms and conditions set out in the document entitled “Key Terms” which accompanies these Standard Terms and Conditions of Service.
Licensed Third Party Materials means any content or materials (if any) of any nature licensed to Adcreators Australia by a third party and included in the Results and Proceeds.
Results and Proceeds means all results, products and proceeds of the Services.
Services means the services set out in the Estimate.
2. Formation of Agreement
2.1 If the Customer transmits or provides to Adcreators Australia a copy of the Estimate signed by or on behalf of the Customer, the Customer accepts Adcreators Australia’ offer.
2.2 The Consultant is under no obligation to accept any offer made by the Customer to engage Adcreators Australia to provide the Services on any other terms. The Consultant’s offer to provide the Services on the terms set out in this Agreement remains open for the period set out in the Estimate.
2.3 To the extent of any inconsistency between these Terms and Conditions of Service, the Estimate and the Key Terms, the following precedence is to
(a) first, these Terms and Conditions of Service;
(b) second, the Estimate; and
(c) third, the Key Terms
3. Services
3.1 The Consultant will provide the Services to the Customer according to this Agreement.
3.2 Subject to clause 3.3 below, Adcreators Australia will use reasonable efforts to provide the Services to the Customer in accordance with the project plan agreed between Adcreators Australia and the Customer and subject to events outside its reasonable control
3.3 The Consultant will have no liability to the Customer if, as a result of any act or omission by the Customer, Adcreators Australia fails to provide any element of the Services by the relevant due date only to the extent by which the negligent act or omission of the Customer has caused that delay.
4. Fees and payment
4.1 As a condition of Adcreators Australia entering this Agreement and commencing the Services, the Customer must pay Adcreators Australia a deposit (if any) specified in the Key Terms, unless otherwise agreed in writing.
4.2 The Customer must pay the fee to Adcreators Australia on a monthly basis, with a 7-day deadline.
4.3 (a) The Consultant acknowledges and agrees that subject only to the provisions of clause 4.3(b) the aggregate amount set out in clause 4.2(a) and
(b) is the maximum amount that the Customer shall pay to the Consultant for the Services under this Agreement and all payments by the Customer shall be made in accrdance with the completion of the Services set out in clause 4.2.
(b) The Customer acknowledges that any additions or changes to the Services set out in the Estimate may incur additional fees and disbursements.
(c) The Consultant may not undertake further work or seek payment for any further work or incur costs for any disbursements in addition to the Services contemplated by this Agreement without seeking the prior written consent of the
Customer in relation to:
(i) The additional work to be undertaken; and
(ii) The cost of that additional work, including any disbursements or production costs referred to in clause 4.7. The Consultant shall not be entitled to payment from the Customer for any further work or disbursements not contemplated by the Estimate without written consent.
4.4 Any payments made in accordance with this Agreement are exclusive of GST.
4.5 The Customer must pay in advance all invoices in respect of domain name registration and web hosting.
4.6 All disbursements incurred by Adcreators Australia which are necessary for or contemplated by the Results and Proceeds are included in the Fee. For the avoidance of doubt, if any further work is approved by the Customer and undertaken by Adcreators Australia in accordance with the provisions of clause 4.3 then any disbursements incurred must be in accordance with the approval given by the Customer referred to in clause 4.3.
4.7 All costs incurred by or on behalf of Adcreators Australia relating to production or manufacturing, including but not limited to any costs relating to photography, film, plates, printing, copywriting, illustration, manufacture or delivery of materials which are necessary for or contemplated by the Results and Proceeds are included in the Fee. For the avoidance of doubt, if any further work is approved by the Customer and undertaken by Adcreators Australia in accordance with the provisions of clause 4.3, then any costs contemplated by this clause must be in accordance with the approval by the Customer referred to in clause 4.3.
4.8 The Customer must make all payments under this Agreement in full.
5. Advertising
5.1 If the Customer requests Adcreators Australia to place advertising, marketing, registration or notices on the Customer’s behalf, Adcreators Australia has no obligation to place such material until Adcreators Australia receives payment in full from the Customer
6. Intellectual Property
6.1 Adcreators Australia IP(a) The Customer acknowledges that the Consultant retains ownership of all Adcreators Australia’ IP (including Intellectual Property Rights contained therein).
(b) The Consultant grants the Customer for its business purposes and the business purposes of its Related Bodies Corporate a non—exclusive, perpetual, royalty free and worldwide licence to use and exploit Adcreators Australia’s IP to the extent that it is contained within the Results and Proceeds.
6.2 Customer Materials
(a) The Consultant acknowledges that the Customer retains ownership of all Customer Materials.
(b) The Customer grants the Consultant the right to use the Customer Materials for the purposes of providing the Services and creating the Results and Proceeds as contemplated by the Estimate.
6.3 Licensed Third Party Materials
(a) The Consultant warrants and represents that it has procured, and will provide to the Customer on request, all applicable moral rights and consents from the authors of any Results and Proceeds licensed or assigned to the Customer for use in accordance with the Services under this Agreement.
(b) The Consultant must undertake the Services in a way that ensures that the Customer Material or any part of them:
(i) does not infringe on the Intellectual Property Rights of any third party; and
(ii)where the Customer Material incorporates third party Intellectual Property Rights, there is no restriction or condition on the use of the Customer Material by the Customer.6.4 Customer Material
(a) Customer Material is owned absolutely by the Customer and vests immediately in the Customer upon creation. The Consultant must do all things necessary to perfect the vesting referred to in this clause.
(b) To the extent that the Consultant may at any time acquire any right, title or interest in the Customer Material, the Consultant by this document, agrees to assign to the Customer all such rights, title and interest in the Customer Material.
(c) Subject to clause 6.4(d), the Consultant agrees not to use any Customer Material for any purpose other than providing the Services to the Customer.
7. Liability
7.1 To the maximum extent permitted by law:
(a) except as expressly set out in the Estimate:
(i) Adcreators Australia’s cumulative liability to the Customer for all claims made by the Customer under or in relation to this Agreement will not exceed in aggregate the Fee amount actually paid by the Customer to Adcreators Australia;
(ii) Adcreators Australia will not be liable to the Customer for any claim for any loss of profit, data, goodwill or business, for interruption to business, for any failure to realise anticipated savings or for any consequential, indirect, special punitive or incidental damages. For the avoidance of doubt, the limitations in this clause
7.1(a) do not apply to a breach by Adcreators Australia of its
obligations under clause 6.3 of this Agreement;
(b) Certain legislation may imply warranties or conditions, impose obligations or give statutory guarantees (together, “Statutory Provisions”) which cannot be excluded, restricted or modified except to a limited extent. This Agreement must be read subject to the Statutory Provisions. If the Statutory Provisions apply, notwithstanding any other provision of this Agreement, to the extent to which Adcreators Australia is entitled to do so, Adcreators Australia limits its liability in respect of any claim arising under those Statutory Provisions to:
(i) in the case of goods, at the Customer’s option:
(a)the replacement of the goods or the supply of equivalent goods;
(b) the repair of the goods;
(c)the payment of the cost of replacing the goods or acquiring equivalent goods; or
(d) the payment of having the goods repaired; and
(ii) in the case of services, at the Customer’s option:
(a) the supply of the Services again; or
(b) the payment of the cost of having the Services supplied again.
(c) The Customer is solely responsible for the clearance and registration of all trade marks, trade names, titles, service marks, logos, business names, trade names, domain names, designs and any such names, marks or devices required to be cleared or registered in relation to the Services and all due diligence associated with the selection of a particular mark or design. The Consultant relies exclusively on the instructions and representations of the Customer in relation to any such clearance or registration. The Consultant will have no liability for any loss, claim, damages or costs arising in connection with any such requirement of clearance or registration.
(d) The Customer is solely responsible for the costs and determining the means of realising and expressing the results of the Services, including any materials or techniques used to affix or produce the results of the Services.
8. Warranties
8.1 The Consultant warrants and represents that:
(a) the Services and the Results and Proceeds will be fit for the purposes described in the Agreement;
(b) it will supply the Services promptly, diligently and with due care and skill, in accordance with the good business practices and high professional standards; and
(c) it has all the necessary rights and authority to provide the Services and that the provision of the Services and the use of, or other dealings with Customer Material will not infringe the Intellectual Property Rights of any person.
9. Suspension of Services and Termination
9.1 Without limiting any of Adcreators Australia’s other rights, Adcreators Australia can suspend the provision of some or all of the Services if the Customer does not make payment as required under this Agreement.
9.2 The Customer can terminate the contract with a 30-day notice period.
9.3 The Consultant can terminate this Agreement with immediate effect by notice in writing to Customer if any of the following happens:
(a) Adcreators Australia becomes aware that the Customer Materials infringe or may infringe a third party’s Intellectual Property Rights or other rights;
(b) The Customer commits a breach of this Agreement that is remediable and fails to remedy the breach within 14 days of written notice from Adcreators Australia requiring the Customer to do so;
(c) The Customer commits a breach of this Agreement that is incapable of remedy;
(d) The Customer undergoes an Insolvency Event. Insolvency Event in relation to the Customer means:
(i) bankruptcy proceedings are commenced or threatened against the Customer, or the Customer is declared bankrupt;
(ii) any step is taken to enter any scheme of arrangement between the Customer and its creditors;
(iii) any step is threatened or taken by a mortgagee to take possession or dispose of the whole or any part of the Customer’s assets or business;
(iv) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, an administrator or other like person to the Customer;
(v) the Customer suspends or threatens to suspend payment of its debts generally; or (vi) the Customer is or becomes unable to pay its debts when they are due or a party is or is presumed to be insolvent for the purposes of any provision of the Corporations Act 2001 (Cth).
9.4 The Customer can terminate this Agreement with immediate effect by notice in writing to Adcreators Australia if any of the following happens:
(a) Adcreators Australia commits a breach of this Agreement that is remediable and fails to remedy the breach within 7 days of written notice from the Customer requiring Adcreators Australia to do so;
(b) The Customer becomes aware that the Customer Material infringes or may infringe a third party’s Intellectual Property Rights or other rights;
(c) Adcreators Australia commits a breach of this Agreement that is incapable of remedy; or
(d) Adcreators Australia undergoes an Insolvency Event.
9.5 If this Agreement is terminated for any reason:
(a) all payments to be made by the Customer to Adcreators Australia in relation to services undertaken by Adcreators Australia or its contractors up to the date of termination become due and payable in full to Adcreators Australia on the date of termination;
(b) clauses 6, 7, 9, 10 and this clause 8 survive termination or expiry of this Agreement.
10. Confidentiality
10.1 The Consultant must not, without the prior written approval of the Customer, disclose any of the Confidential Information.
10.2 Subject to this clause 9.2, the Consultant will not be in breach of clause 9.1 in circumstances where they are legally compelled to disclose the Confidential Information. Where the Consultant is legally compelled to disclose the Confidential Information, they must:
(a) disclose only the minimum Confidential Information required to comply with the applicable law, order or requirement; and
(b) preserve the confidentiality of that information subsequent to the disclosure; and the Consultant must, as soon as they are reasonably and legally able, notify the Customer of that disclosure, or impending disclosure.
10.3 The Consultant may disclose, give, give access to, or give a copy of, Confidential information, to employees of the Consultant if necessary for the provision of the Services and if the Consultant first:
(a) informs them of the Consultant’s obligations under this deed and that the Confidential Information is confidential; and
(b) either:
(i) obtains from them a deed in favour of the Customer in a form acceptable to the Customer requiring them to comply with similar obligations in connection with the Confidential Information as those of the Consultant; or
(ii) ensures that each person to whom the Confidential Information is disclosed is under and will comply with obligations no less stringent than the obligations imposed under this Deed.
10.4 Upon written demand by the Customer, the Consultant must at its own expense:
(a) Return to the Customer, or at the Customer’s discretion, destroy, delete or erase all documents and information in the possession, power or control of the Consultant which contain, refer to, reproduce, are based on, utilise or relate in any way to any Confidential Information.
(b) Delete any Confidential Information that has been entered into a computer, database, or other electronic means of data or information storage by the Consultant.
10.5 The return, destruction, deletion or erasure of Confidential Information in accordance with clause 9.5 does not relieve the Consultant from any of its other obligations under this deed.
10.6 The Consultant must not make use of the Confidential Information to the commercial, financial or competitive disadvantage of the Customer or any of its related entities
10.7 This clause 9 survives the termination of this Agreement, regardless of the reason for which it came to an end.
11. General
11.1 The Customer acknowledges that Adcreators Australia may subcontract the provision of any of the Services, but remains primarily liable.
11.2 Notwithstanding any other provision of this Agreement:
(a) Adcreators Australia can assign the benefit of this Agreement
to any of its Affiliates, without the Customer’s prior consent.
(b) The Customer can assign the benefit of and any rights obtained under this Agreement to any of its Affiliates without Adcreators Australia’s prior written consent.
11.3 This Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.
11.4 If the whole or any part of a provision of single or partial exercise by a party of a right, this Agreement is invalid or unenforceable power or remedy does not prevent another or in a jurisdiction it must, if possible, be read further exercise of that or another right, power or down for the purposes of that jurisdiction remedy. A waiver of a right, power or remedy so as to be valid and enforceable, must be in writing and signed by the party giving, however the whole or any part of the waiver.
11.5 A party does not waive a right, power or in New South Wales and the parties, by entering this remedy if it fails to exercise or delays in Agreement, are deemed to have submitted to the exercising the right, power or remedy. A non-exclusive jurisdiction of the courts of that State.
11.6 Except where this Agreement expressly states extent of the invalidity or unenforceability otherwise, this Agreement does not create a without affecting the remaining provisions relationship of employment, trust, agency or of this Agreement or affecting the validity partnership between the parties. or enforceability of that provision in any other jurisdiction.
11.7 This Agreement will be governed by and construed in accordance with the law for the time being in force.