Agency means David Birchall t/a Serious Digital Marketing (ABN 44 010 765 359).
Agency Tools means all tools developed and/or utilised by the Agency in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as Website design, architecture, layout, navigational and functional elements.
Agreement means the Proposal and these terms and conditions, together with any schedules or materials attached to the Proposal.
Approval Team means person(s) specified in the Special Conditions of the Proposal as having authority for instructions and approvals.
Client Content means all materials, information, photography, writings, logos and other creative content, digital assets or printed materials, which are provided by the Client for use in the preparation of and/or incorporation in the Preliminary Works and Final Deliverables.
Confidential Information means all information, whether oral, graphic, electronic, written or in any other form, that is not generally available to the public at the time of disclosure other than by reason of a breach of these terms and conditions, or is required to be disclosed by any applicable law, or that is in fact, or should reasonably be regarded as, confidential to the party to whom it belongs or relates.
Copyright means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Australian Copyright Law.
Days means business days, excluding public holidays.
Digital Assets means any server, design, code, software, hardware, framework, strategy, service, algorithm, or other form of knowledge that is designed, is designed for, or interacts with, a digital device or medium.
Final Deliverables means the final version of the Services specified in the Proposal to be delivered by the Agency to the Client, in the form and media specified in the Proposal and includes:
creative content developed or created by the Agency, or commissioned by the Agency, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, but not limited to, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and the Agency’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials; and
technical content including any server, design, code, software, hardware, framework, strategy, service, algorithm, or other form of knowledge that is designed or is designed for or interacts with a digital device or medium.
Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by the Agency and which may or may not be shown and or delivered to the Client for consideration and which may or may not end up forming part of the Final Deliverables.
Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.
Proposal means all the specifications or work product of the proposed Project, including the quote.
Services means all services to be provided to Client by the Agency as described and otherwise further defined in the Proposal.
Stages means the stages identified in the Proposal and detailed in clause 11, including any variations or additions listed in the special conditions of the Proposal.
Third Party Costs means but is not limited to costs incurred by the Agency for domain registration, photography, software development, typefaces/fonts, website hosting packages, third party functionality plugins and other resources obtained on behalf of the Client.
Third Party Materials means proprietary third party materials which are incorporated into the Preliminary Works and/or Final Deliverables, including without limitation, stock photography, images, illustration, functionality plugins and open source technology platforms.
2.1 These terms and conditions govern the supply of all goods and services by David Birchall (the Agency) to the Client.
2.2 These terms and conditions prevail over any other terms or conditions that may be communicated by the Client, whether in writing or agreed orally.
2.3 These terms and conditions may not be waived or changed, except in writing signed by or otherwise expressly approved by a Director of the Agency.
3.1 Unless the Proposal is accepted by the Client within the period it is open for acceptance, the Agency reserves the right to change the Proposal and any related terms and conditions.
3.2 The Proposal shall be taken to have been accepted and agreement reached on these terms and conditions when the Client signs the Proposal or pays the initial deposit (specified in the Proposal), whichever occurs first in time.
4.1 It is agreed that the fee for the Final Deliverables is that contained in the Proposal, unless work undertaken exceeds the work outlined in the Proposal. If work is undertaken which exceeds work outlined in the Proposal, additional fees outlined in clause 13 may apply.
4.2 From time to time the Client may require extra requirements during a Project, or extra files upon completion of a Project. The Client will be informed whether the alterations or changes requested fall outside the scope of the original Proposal. If the Client wishes these alterations to be made, or work to be undertaken they must agree in writing to the increases in the scope of the Project prior to the additional work being undertaken, and additional fees at the Agency’s Standard Hourly Rate will be payable.
4.3 Any additions to the Proposal will be carried out at the discretion of the Agency. Where no charge is made by the Agency for these additions, the Agency accepts no responsibility to ensure these additions are error free. The Agency reserves the right to charge an appropriate sum for any correction to these or further additions.
4.4 The Agency reserves the right to use Third Party Materials. Costs incurred by the Agency for Agency Tools or the purchase of Third Party Material are at additional cost to the Client, unless specified otherwise in the Proposal.
4.5 Upon the Client’s written request at the start of the Project, records for out-of-pocket expenses referred to in clause 4.4 will be retained by the Agency and if necessary will be available to the Client upon completion of various Stages of the Project.
4.6 Notwithstanding any prior quotations or acknowledgement of price, the prices specified for the Services may, at the Agency’s option, be subject to alteration in accordance with the Agency’s prices and charges in effect at the time of delivery. The Client will be informed in writing of any proposed changes to the Agency’s prices and charges. This clause is only applicable if The Client’s actions or responsibilities have led to significant delays in being able to complete the project.
The prices charged by the Agency for the goods and Services are exclusive of all taxes (including GST), charges, import duties and fees. The Client shall pay any applicable goods and services tax, sales tax and other taxes payable on the Services or in respect of the supply of the Services.
6. TERMS OF PAYMENT
6.1 The terms of payment for the Project are set out in the Proposal.
6.2 The Client agrees to pay the deposit set out in the Proposal to commence any Project. The Agency will not commence work until this deposit has been received. Where payment is made by cheque or Electronic Funds Transfer, the funds must be cleared before the Agency commences work. This deposit is non-refundable.
6.3 The Client agrees to pay the subsequent installments of the value set out in the Proposal, with any outstanding amount payable in full upon delivery of the Final Deliverables, before public launch or handover of control of files, systems or Project assets.
6.4 The Agency requires the Client to pay the final amount owing in clause 6.3 within seven (7) days from the date of issuing a final invoice. Publication and/or release of the Digital Assets to the public domain will not take place before cleared funds have been received.
6.5 Should the Agency be unable to start the Project, within fifteen (15) days of the Client signing the Proposal and paying the deposit, due to Client’s inability to supply Client Content to the Agency, the Agency reserves the right to invoice the Client for any work completed to this date. The Client agrees to pay this amount within seven (7) days of the invoice date.
7. LATE PAYMENT
7.1 If payment has not been received by the due date as stated on the Agency’s invoice, the Agency has the right to suspend ongoing work for the Client, until such time that full payment of the outstanding balance has been received.
7.2 If full payment has still not been received seven (7) days after the due date stated on the Agency’s invoice, then, without prejudice to any other right or remedy available to the Agency, the Agency has the right to replace, modify or remove any files on external servers, such as hosted websites and revoke the Client’s license of the Final Deliverables until full payment has been received. By revoking the Client’s licence of the Final Deliverables or removing any files on external servers, such as hosted websites, the Agency does not remove the Client’s obligation to pay any outstanding monies owing.
7.3 The Agency reserves the right to withdraw any invoice if not paid by the due date and render an itemised invoice, which may be for a higher amount. Any amount not paid by the due date is liable to interest at 5% per calendar month. A receipt will not be issued unless requested.
7.4 The Agency retains all Copyright for work performed until the full Project costs have been paid. In the case of default payment, the Agency reserves the right to re-use or re-sell Preliminary Works, and/or Final Deliverables and Services procured on behalf of the Client.
7.5 The Agency accepts no liability or responsibility for loss of income or damage to the Client for work removed from third party servers or other service providers as a result of non-payment by the Client and the Client will not take legal action for any situation arising from invoice disputes or removal of the disputed work in such cases.
7.6 Where the Client’s failure to pay the invoices for each Stage of the Project results in a delay in completion of the Project, the Agency has the right to extend previously agreed deadlines for the completion of the Project set out in the Proposal by a reasonable time.
This Agreement assumes goodwill from both the Agency and the Client regarding:
what can reasonably be achieved in a proposed time frame; and
making the best use of resources to achieve the most effective outcomes.
Graphic design, web design, strategy, photography, videography, marketing, design, code, software, hardware, framework, strategy, service, algorithm, or other form of knowledge that is designed or is designed for or interacts with a digital device or medium and related services are all highly creative and subjective art forms. As such, the Agency takes every possible care with professional advice offered and any suggested creative concepts and/or their implementation, however the Agency cannot be held responsible for variations between expectation and outcome.
10. CLIENT CONTENT AND INSTRUCTIONS
10.1 The Client agrees to supply the Agency all Client Content required for the Agency to complete the Services in accordance with the Proposal in a timely fashion. Where possible, Client Content should be provided in the following form:
Hard copy to be provided on white A4 paper in clean typed 12pt/10pt text.
Good quality brochures/flyers/A4 posters are also acceptable.
Photos/images can be postcard to A4 size, slides 35mm up to postcard size.
Digital document files are acceptable in the following formats: Microsoft Works, WordPad, Word, Excel, Publisher, .txt, .rtf. PSD, ILLUSTRATIONS and Indesign. Others please inquire.
Image Files are acceptable in the following formats: .gif, .jpg, .tif. png. Psd.Others please inquire.
Multimedia files are acceptable in the following formats: .wav, .mp3, .mpeg, .wma. Others please inquire.
Any pre-existing Digital Assets to be provided in the form requested by the Agency.
10.2 Where the Client’s failure to supply Client Content leads to a delay in completion of the Stages of the Project, the Agency has the right to extend previously agreed deadlines for the completion of the various Stages of the Project by a reasonable time.
10.3 Where the Client’s failure to supply Client Content prevents progress on the Project for more than fourteen (14) days, the Agency has the right to invoice the Client for any part or parts of the work already completed outside the agreed timeframes in the Proposal.
10.4 All briefs and instructions from the Client (including those referred to in clause 11.1) must be provided in writing. They must include any mandatory information that will appear within the Project such as, but not limited to: (a) colour preference (if any); (b) client contact details; (c) main target audience; (d) Project objective; (e) the name of the person making the final approval decision (Client Approval Team).
10.5 If the Client has requirements for the form and media of the Deliverables (as set out in the Proposal), the Client must communicate this to the Agency before the Project begins.
11. PROJECT STAGES
11.1 The process of software design and development involves several Stages. Each stage of the Project is identified in the Proposal. The estimated time for completion of each Stage is identified in the Proposal. The completion of each Stage is subject to clause 12 (Timing) and clause 13 (Changes). It is the responsibility of the Client to promptly review the Agency’s work at each Stage of the Project and provide written approval for each Stage. Written approval of a Stage by any member of the Client Approval Team will be taken to be the Client’s approval of that Stage.
11.2 Each Stage must be approved in writing by a member of the Client Approval Team before the Agency is required to commence work on the next Stage. The time for completion of each Stage does not commence to run until the work undertaken in the prior Stage has been approved by the Client.
11.3 The Client must use its best endeavours to progress the Project by responding to each Stage. The Client must within 7 Days of its receipt thoroughly review the deliverable for each Stage and provide the Agency with feedback (including any errors, system bugs or amendments) and all relevant instructions and written approvals for each Stage. An invoice for the amount set out in the Proposal will be provided to the Client for each Stage.
11.4 Final Review – The Client must within 2 Days of their implementation review any changes made to the deliverables provided in the previous Stage and authorise the Agency to launch the Digital Asset to the public domain. An invoice for the balance of fees will be provided to the Client.
11.5 The Agency shall issue an invoice for the instalment payable at the completion of every Stage in the Project. The Agency reserves the right not to commence work on any Stage until the work undertaken in any prior Stage has been approved by a member of the Client Approval Team and payment of the instalment owing for that prior Stage has been received by the Agency.
11.6 The Agency may not commence work on the next Stage of the Project until the current Stage of the Project has been approved by a member of the Client Approval Team. If the Client does not report any approval or changes to the Agency within seven (7) days of delivery of the Stage, the Agency will submit an invoice for the Stage of the Project. After the elapse of the seven (7) day review period, any required maintenance or additional work will be billed at the Agency’s Standard Hourly Rate. For the avoidance of doubt, the Agency retains discretion in relation to the implementation of any additional requirements and specifications provided by the Client in relation to each Stage of the Project.
11.7 In accordance with clause 6.3 and 6.4, the Agency requires the Client to pay all amounts owing in respect of the Project within seven (7) days from the date of issuing a final invoice. Publication and/or release of the Digital Assets to the public domain will not take place before cleared funds have been received for all outstanding amounts.
11.8 Any changes requested after the approval of each Stage by the Client Approval Team will be considered additional and will be charged at the Agency’s Standard Hourly Rate.
12.1 The Agency will endeavour to meet the agreed timelines set out in the Proposal. Schedules will be based around the Client’s needs and the Agency’s access to Client Content, Third party Material and Agency Tools.
12.2 Quoted timeframes are dependent upon the Agency receiving all Client Content approvals from the Client in a timely manner. Any delays to the completion of the Project Stages and the Project caused by the Client will not render the Agreement voidable. However, the Agency reserves the right to postpone or terminate any Project or Project Stage if the Client has not reasonably met its requirements under this Agreement. No refunds on money already paid will be given to the Client.
12.3 If the Client delays the Project or Project Stage for more than thirty (30) days, the Agency reserves the right to charge a delay fee to recover costs associated with ongoing management of the Project.
13. APPROVAL, CHANGES AND ACCEPTANCE
13.1 This clause should be read together with clause 11.
13.2 While the Agency takes all care to avoid errors, the Agency accepts no responsibility for typographical errors, spelling mistakes or incorrect information on any Project. It is the responsibility of the Client to proof read and approve all final copy/content/layout before the release of Digital Assets in the public domain.
13.3 During the Project, the Client is offered the opportunity to review each Stage of the Project. The Client may request changes or additions to each Stage of the Project. Such changes or additions must be provided by the Client to the Agency in writing. If changes are considered by the Agency as being outside the scope of the original and agreed Proposal, work product or Project Stage, the Agency:
may elect not to implement any of the additional requirements or specifications; or
may implement and charge for such additional changes at the Agency’s Standard Hourly Rate which will be included in the invoice issued to the Client.
13.4 Despite clause 13.3, the Agency may make a reasonable number of minor changes at no extra cost. Minor changes include small textual changes and small adjustments to placement of items on the design. It does not include major changes, including changes to images, colour schemes or any navigation features. Any minor changes must be provided to the Agency in writing.
13.5 Once the Digital Assets are published in the public domain, the Client is wholly and solely responsible for the content that appears on the Digital Asset, including but not limited to pages, text, images, videos and hyperlinks. The Agency is under no obligation whatsoever to monitor, moderate or create content unless specified in the Proposal or as part of a subsequent quote, agreement or scope of work.
13.6 Unless specified otherwise in the Proposal, the Client is responsible for inserting all content into their Digital Asset except for the information visible in the Digital Asset’s main design template, such as phone numbers or menu items in the header, and copyright information in the footer.
13.7 The Agency is under no obligation whatsoever to restore, correct or remove any content that has either been added or approved by the Client or an authorized representative thereof. The Agency does not guarantee that any deleted Digital Asset content can be restored. Fees may apply to any such requests.
13.8 Clients are required to ensure that the content of their Digital Asset meets all the current Australian legislation regarding publications. The Client shall further indemnify the Agency in respect of any claims, costs and expenses that may arise from any material included in their site by the Agency at the Client’s request.
13.9 The Agency reserves the right not to include any material supplied by the Client if the Agency deems it inappropriate or offensive.
14. CLIENT’S STATUTORY RIGHTS
These terms and conditions do not exclude, restrict or modify:
the application of any provision of the Australian Consumer Law (ACL);
the exercise of any right or remedy conferred by the ACL; or
the liability of the Agency for a failure to comply with the ACL,
where to do so would:
contravene that statute; or
cause any part of these terms and conditions to be void.
15. LIMITATION OF LIABILITY
15.1 Subject to clause 14, any representation, warranty, condition, guarantee or undertaking which (but for this clause) would be implied in these terms and conditions by law, is excluded.
15.2 The Agency is not liable to the Client for any claim (including any demand, claim, suit or action for loss, damages, compensation, costs or any other remedy actual, contingent or otherwise) which would or might (but for this clause) arise directly or indirectly out of these terms and conditions, tort, statute or otherwise, including as a result of:
any act or omission beyond the Agency’s reasonable control; or
any act or omission, default or misrepresentation of the Agency or its related entities, employees, agents or contractors (“Claim”).
15.3 The Agency’s liability for breach of a non-excludable consumer guarantees under the Australian Consumer Law, in relation to the supply of goods or services not of a kind ordinarily acquired for personal, domestic or household use or consumption is limited, at the Agency’s option, to:
in the case of goods – replacing, repairing or paying the cost of replacing or repairing the goods; or
in the case of services – supplying the services again or paying the cost of having the services supplied again.
15.4 To the extent permitted by law, the Agency’s maximum aggregate liability for all Claims is limited to the total amount paid by the Client to the Agency under these terms and conditions.
15.5 To the extent permitted by law, the Agency is not liable for consequential, indirect or special losses or damages of any kind (including, without limitation, loss of profit, business interruption, loss of opportunity or indirect costs) suffered by the Client resulting from any Claim.
16. INDEMNITY AND WARRANTY BY THE CLIENT
16.1 The Client shall indemnify the Agency and keep the Agency indemnified from and against any loss, liability, claim, suit and costs (including legal costs) caused by, arising out of or relating to:
the design of the Final Deliverables if the Final Deliverables are made in accordance with the Client’s design, specification or Proposal; or
any negligence, misrepresentation, default or breach of the Competition and Consumer Act 2010 (Cth) on the part of the Client in relation to the Final Deliverables.
16.2 If the Agency issues the Client an express written warranty, these terms and conditions shall be read and construed subject to the terms and conditions of the warranty. In the event of any inconsistency between these two documents, the terms and conditions of the warranty shall prevail.
17. PROTECTION OF PROPRIETARY RIGHTS
17.1 The Agency retains full ownership and intellectual property rights to the materials it designs and produces either electronically or physically prior to final approval by the Client. Once full payment for the completed Project has been received by the Agency and the Final Deliverable is delivered to the Client, all ownership and intellectual property rights of the Final Deliverable are transferred to the Client. The Agency is permitted to retain a copy of the Final Deliverables.
17.2 Unused products, including Preliminary Works, but not limited to unapproved concepts, drafts, revisions and design proposals remain the property of the Agency. The Agency may still use paid-for products in the Agency promotional materials and portfolio. The Agency will provide a copy of intended case study use to The Client for approval prior to using the project as a case study. The Client will approve The Agency use of the project as a case study provided accurate representation is demonstrated. The Client will not seek to prevent Agency use of the project case study and will advise Agency of requested changes to ensure Agency can use the project as a case study.
17.3 The Agency reserves the right to re-use all materials developed during the Project, including the copy of the Final Deliverables and will retain intellectual property rights on each development. Any scripts, cgi applications, php scripts, programming code or software written, created or provided by the Agency remain the property of the Agency and may only be commercially reproduced or resold with the permission of the Agency.
17.4 The Agency retains the right to display a small byline claiming design and build credit on the Final Deliverables. This byline must remain in perpetuity. Removal of this byline without written consent by the Agency constitutes a breach of this Agreement. The byline may only be removed from the works if there have been substantial amends by a person or company other than the agency.
17.5 Other than for the promotional use of the Agency, all Services provided shall be for the exclusive use of the Client’s purposes set out in the Proposal. Designs may not be used for other promotional items, website or printed materials without written permission from the Client.
17.6 The Client agrees to allow the Agency to showcase any/all work created in the course of the Project as part of the Agency’s portfolio. The Agency acknowledges the confidential nature of Project and agrees to only display Project work once the Digital Asset has been publicly launched or commenced. The Agency will provide a copy of intended case study use to The Client for approval prior to using the project as a case study. The Client will approve The Agency use of the project as a case study provided accurate representation is demonstrated. The Client will not seek to prevent Agency use of the project case study and will advise Agency of requested changes to ensure Agency can use the project as a case study.
17.7 The Client will obtain all the necessary permissions and authorities in respect of the use of all copy, graphics, registered company logos, names and trademarks or any other material supplied by the Client. The supply of Client Content to the Agency shall be regarded as a guarantee by the Client to the Agency that all such permissions and authorities have been obtained. No responsibility will be accepted by the Agency for damages to or losses incurred by the Client from the use of material for which the required permission or authority has not been obtained.
17.8 Final Deliverables designed and created by the Agency for the Client should be treated as trade secrets and remain the property of the Agency. Such creative work or the information contained within them must not be passed to third parties or publicly disseminated without prior written authorisation from the Agency. This is limited to pricing and Agency Process related information.
17.9 Unless previously agreed otherwise in writing, no modifications may be made by the Client or any third party to Agency Tools to which the Agency or their suppliers owns the Copyright. The Agency acknowledges the intellectual property rights of the Client. Information passed in written form to the Agency, and that the Client has indicated is Confidential Information or a trade secret, will not be published or made available in any other way to third parties without the prior written consent of the Client.
18.1 The Agency creates Digital Assets which are functional, at the time of Project commencement, for the systems, platforms and/or browsers listed in the Proposal.
18.2 The Agency is under no obligation whatsoever to update or maintain any Digital Assets after its release to meet future operating system, browser or plugin requirements unless commissioned specifically to do so under a new Project.
18.3 Minor display or functionality differences may occur between operating systems, browsers, plugins, and versions of these. Where reasonable efforts have been made by the Agency to minimise these issues, the Client accepts that no further action is required by the Agency.
18.4 Additionally, the Agency notes that some display features or functionality may be hidden or removed from the Digital Assets when using unsupported browsers.
19. CONFIDENTIAL INFORMATION
19.1 The terms of these terms and conditions are confidential and the Client must not during or after expiry of the term of the contract disclose them to any party without the written consent of the Agency.
19.2 Each party, including employees or subcontractors, (Receiving Party) receiving, possessing or otherwise acquiring Confidential Information of any other party (Disclosing Party) acknowledges that the Disclosing Party’s Confidential Information is the property of and confidential to or a trade secret of the Disclosing Party. The Receiving Party must:
keep the Disclosing Party’s Confidential Information confidential and not directly or indirectly disclose, divulge or communicate that Confidential Information to, or otherwise place that Confidential Information at the disposal of, any other person without the prior written approval of the Disclosing Party;
take all reasonable steps to secure and keep secure all Disclosing Party’s Confidential Information coming into its possession or control; and
not memorise, use, modify, reverse engineer or make copies, notes or records of the Disclosing Party’s Confidential Information for any purpose other than in connection with the performance by the Receiving Party of its obligations under these Conditions.
It is agreed that the Agency is not responsible or held liable for any errors contained in the Final Deliverable after the Final Deliverable has been approved by the Client, committed to print and/or the Digital Assets posted in view of the public. The Agency will not be held responsible for any changes or amendments made after approval. It is the sole responsibility of the Client to notify the Agency of any such errors during the revision cycle and various Stages of the Project and before the Digital Asset has been generated and published in the public domain.
21. RE-ISSUE OF FILES
Where the Client loses or accidentally deletes the files delivered by the Agency at the completion of the Project, they can be re-sent online via email or a website at no cost to Client. Files re-sent on a disc, USB drive or other physical medium will incur a fee of $220.00 plus consumables and courier/postage costs per request.
22.1 Email and phone support is provided during the Agency business hours only. Unless specified otherwise in the Proposal or any other agreement, all support will be charged at the Agency’s Standard Hourly Rate. Minimum service charges apply. An invoice for all such support charges will be sent to the Client at the Agency’s discretion.
22.2 The Agency may rectify, at no charge, any major Digital Asset issues caused directly by the Agency through error, either during or after the Digital Asset has been developed and/or published. Correcting all other issues is at the discretion of the Agency and is subject to additional costs.
23.1 From time to time circumstances beyond the control of either party may result in the need for Project cancellation. These terms and conditions may be terminated by either party, by written notice. Termination will become effective ninety (90) days after such notice has been given.
23.2 In the case of a breach of any provision of these terms and conditions, the non-defaulting party may give written notice to the defaulting party, that if the breach is not cured within thirty (30) days, these terms and conditions will be terminated.
23.3 The Client must advise the Agency in writing of the request not to proceed with work.
23.4 Should the Client wish to cancel their acceptance of the Proposal, the deposit will be forfeited.
23.5 Should the Client wish to cancel the Project after work has commenced, the deposit and any subsequent instalments paid will be forfeited in lieu of compensation to the Agency. This is to cover design and administration time spent, resources purchased and allocated, research time and administration costs. Ownership of all Copyrights and the original products, including but not limited to digital applications and any related files and websites, shall be returned to and retained by the Agency.
23.6 Additionally, should the Client cancel the Project and the Project is more than 50 per cent (50%) complete (or as negotiated by the Agency and the Client at the time of the Project commencement by way of the deposit value), a pro-rata payment for time spent beyond the deposit and/or subsequent instalments received is payable at the time of the Project cancellation, at the Agency’s Standard Hourly Rate. The Client must also pay all fees incurred by the Agency in the course of the Project, including but not limited Third Party Costs.
23.7 If a Project is cancelled by the Agency due to unforeseen circumstances, the deposit and any other subsequent instalments paid by the Client will be refunded in full to the Client in a timely manner. No other monies will be payable to Client by the Agency.
24. FORCE MAJEURE
24.1 ‘Force Majeure Event’ means any act, event or cause, other than a lack of funds:
as a direct or indirect result of which, the party relying on it is prevented from or delayed in performing any of its obligations under these terms and conditions; and
that is beyond the reasonable control of that party.
24.2 Where any failure or delay by a party (Affected Party) in the performance of its obligations under these terms and conditions is caused, directly or indirectly, by a force majeure event:
the Affected Party must immediately give the other party written notice of that fact;
the Affected Party is not liable for that failure or delay;
the Affected Party’s obligations under these terms and conditions are suspended, to the extent to which they are affected by the relevant Force Majeure Event, for the duration of the Force Majeure Event; and
if the Force Majeure Event continues for more than sixty (60) consecutive days, while it continues, any party other than the Affected Party may, at its sole discretion, terminate these terms and conditions by giving written notice to the Affected Party and all other parties (if any).
25. THIRD PARTY CONTRACTS
The Agency may contract with other individuals or companies acting on behalf of the Client to provide additional services such as writing, photography, illustration, printing and fabrication (Third Party Material). The Client agrees to be bound by any terms or conditions, with respect to reproduction of the materials and timelines that may be imposed on the Agency by these third parties. Should the Project become more complex due to reasons beyond the control of the Agency, the Agency will not be held responsible for delays in delivery of the Project Stages.
26. SURVIVAL OF CERTAIN TERMS
The provisions of clauses 13, 14, 15, 16, 17, 18, 19, 20, 21 survive the termination of these terms and conditions.
27.1 Any notice or other communication to or by a party under these terms and conditions must be:
given by personal service, registered post or facsimile;
in writing, legible and signed by an authorised person from the Approval Team; and
sent to the last notified address or facsimile number of the party.
27.2 A notice given pursuant to this clause is deemed to be given by the sender and received by the addressee:
if delivered in person, when delivered to the addressee;
if posted, two (2) business days (or six (6), if addressed outside Australia) after the date of posting to the addressee, whether delivered or not; or
if sent by facsimile transmission, on the date shown on the transmission report by the machine from which the facsimile was sent.
27.3 If delivery or receipt of the notice does not fall on a business day or is after 4.00pm (addressee’s time), it is deemed to have been received at 9.00am on the next business day.
The failure by the Agency to enforce any of these terms and conditions or to take action in respect of any breach shall not be a waiver of any of these terms and conditions, even if such failure or breach is continuing and habitual or repeated from time to time, and no estoppel may be pleaded against the Agency either at law or in equity in any circumstances whatsoever.
29. JURISDICTION AND GOVERNING LAW
This Agreement is governed by the laws of the State of New South Wales and the Client irrevocably submits to the non-exclusive jurisdiction of the Courts in this State.
In the event that any provision contained in these terms and conditions shall be determined by a Court or tribunal of competent jurisdiction to be invalid, null or void or otherwise unenforceable or inoperable by reason of contravention of any statute or other law, then such provision shall be severable without prejudice to the operation of the remaining provisions.