Terms of Service
We will provide the services listed in the “services” section of the attached quotation (Services), and the deliverables listed in the “deliverables” section of the attached quotation (Deliverables), in consideration for payment of the Fees (as defined below).
By agreeing to the terms of the Proposal in writing or otherwise instructing us to provide the Services and Deliverables after being provided with the Proposal and this “Terms of Service” document,
you agree to these Terms of Service which forms a binding agreement between us and you.
We will endeavour to provide the Services and Deliverables in accordance with mutually agreed time-frames, but will not be responsible or liable to you for any delays.
The Services (or any part of them) will be performed by such personnel or subcontractors that we may choose in our absolute discretion.
We are not liable for the services of any third parties independently engaged by you, or by us at your request, that relate to our provision of the Services and Deliverables.
3. Deliverables and Revisions
If we provide you with a draft version of any Deliverable (Draft Deliverable), you will have the opportunity to provide feedback and request a maximum sets of revisions as outlined in your Statement of Work.
Permitted Revisions are to be communicated to us in a timely fashion and succinctly in one email, one word document or in a meeting. We will update the Draft Deliverable to the extent we consider appropriate in our professional judgment. We reserve the right to charge for further sets of revisions of a Draft Deliverable beyond the Permitted Revisions, or where you require revisions to the Draft Deliverable which are outside the scope of work contemplated in the Proposal.
4. Fees and Expenses
The Proposal contains an estimate of our fees for providing the Services (Service Fees) and any related Expenses for providing the Services (Expenses). You acknowledge that the Service Fees and Expenses are strictly “estimates only” and subject to change.
The total fees payable by you in relation to the Proposal are referred to in these Terms of Service as the “Fees”. You agree to pay the Fees in consideration of us providing the Services.
The Fees are exclusive of GST unless otherwise indicated.
You will be required to pay GST where we supply you with a valid tax invoice requesting GST.
Where a deposit is listed in the Proposal or Statement of Work as part of the Service Fees, you must pay this in full before we will commence providing the Services.
5. Change to Services or Deliverables
You may request a change to the Services or Deliverables in writing to us (Change Request). We are under no obligation to accept a Change Request.
If we are willing to accept a Change Request, we will send you a list of amendments to the Proposal setting out (amongst other things) any additional fees and expenses which we will charge for complying with the Change Request (Proposal Changes). If you approve the Proposal Changes, the Proposal or Statement of Work will continue on foot subject to any Changes which will prevail over any inconsistent terms in the Proposal.
6. Payment Terms
We will invoice you for the Fees at suitable intervals while providing the Services as determined by us. You agree to pay our invoices for the Fees in full as cleared funds within 14 days of receipt (Due Date), by bank transfer using the details nominated on the invoice, or by credit card.
“Time is of the essence” when making invoice payments under these Terms of Service. We reserve the right to suspend our provision of the Services or supply of the Deliverables if you have not paid an invoice by the Due Date.
7. Intellectual Property
For the final completed version of the Deliverables supplied to you under these Terms of Service (Final Deliverables), we grant you the ability to use the intellectual property in the Final Deliverables subject to the following conditions:
(a) full payment of all Fees owing to us under these Terms of Service;
(b) any restrictions set out in the Proposal or these Terms of Service;
(c) the rights granted in the Final Deliverables do not include the right to make, or direct a third party to make, modifications or improvements to the Final Deliverables; and
(d) your rights to use any intellectual property embodied in the Final Deliverables that is:
i. supplied by you to us in connection with providing the Services; or
ii. owned by third parties which we are not entitled to sub-licence to you on at least a transferable, royalty-free, worldwide and perpetual basis, such as stock images, fonts and licensed materials;
(“Other IP”) are subject to terms imposed by the relevant owner (“Other IP Licences”). You will be responsible for acquiring, maintaining and complying with all applicable Other IP Licences.
Subject to your rights under this section 7 of the Terms of Service, we will retain ownership and/or control of all intellectual property rights in the Deliverables, draft and development work created by us in the course of providing the Services and creating the Deliverables, and in our pre-existing processes, technology, copyrights and information, excluding the Other IP.
You are solely responsible for and must carry out your own investigations to ensure that it has the unfettered legal right to use the Final Deliverables for any intended commercial purpose, which may include carrying out trade mark clearances, pre-publication advertising clearances and acquiring copyright licences.
At the request of the client we may sell the ownership and/or control of intellectual property rights in the Deliverables, draft and development work.
The price will be determined by Identity Marketing as seen fit taking into account the number of hours to produce and the pre-existing processes, technology, copyrights and information used. We are under no obligation to accept an ownership request.
Notwithstanding the provisions of these Terms of Service, you provide us with consent to publish and communicate the Final Deliverables as well as your name, brand name or logo, in our portfolio, on our own or third party websites and social media accounts, for creative pitches, award submissions and competitions, or for any other promotional, marketing or demonstrative purpose.
9. Cancellation & Termination
You may not terminate these Terms of Service for “change of mind”.
The parties may terminate these Terms of Service by mutual written agreement, or if the other party breaches a material term of these Terms of Services and fails to remedy the breach within 30 days of receipt of written notice from the party seeking to terminate.
In the event these Terms of Service are terminated in accordance with this clause 9, we will invoice you for our Services performed up to and including the termination date with such final amount to be determined by us taking into account any payments already made by you. You will also be liable to pay for all expenses, third party costs and service fees that we have incurred or have committed to incur up to the termination date. Where these Terms of Service are terminated and we have already provided you with partial or completed Deliverables, we may revoke your rights to use some or all of these.
10. Your Warranties
You warrant the following to us:
(a) you have the necessary legal rights to use all materials, content and third party materials you provide to us in connection with providing the Services and Deliverables, and our use of any such materials will not infringe the rights of any third party;
(b) you will, in a timely and complete fashion, provide all necessary, complete and accurate information, documentation, facilities and assistance required by us from time to time to provide the Services; and
(c) you have the full legal capacity to enter into and meet your obligations under this Agreement.
11. Our Warranties & Limitation of Liability
We warrant that we will provide the Services with due care and skill and, where you acquire the Services as a “Consumer” under the Australian Consumer Law, in accordance with any consumer guarantees specified in the Australian Consumer Law (Consumer Guarantees) which apply to the Services.
To the extent permitted by law, our liability to you for any loss or claim that you suffer in respect of any acts or omissions of us under or in connection with these Terms of Service, including in respect of our failure to comply with any Consumer Guarantees, is limited to, at our election:
(a) supplying the Services again; or
(b) paying the cost of having the Services supplied again.
For the purposes of this Agreement, “Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
You will be liable for and indemnify us against any direct, identifiable and reasonable loss or claim suffered by us (whether based in negligence, tort, statute or in any other way) as a result of any breach of these Terms of Service by you, and the exercise of our rights under these Terms of Service pursuant to such breach.
These Terms of Service constitute the entire agreement between the parties and cannot be altered except in writing signed by both parties.
These Terms of Service do not create any employment, partnership, agency or joint venture relationship between the parties.
If any provision of these Terms of Service is determined for any reason to be unenforceable or invalid, that provision will be read down and if not capable of being read down, then it will be deemed to be severed from these Terms of Service and will not affect the validity and enforceability of any remaining provisions.
These Terms of Service will be governed by and construed in accordance with the laws of Victoria, Australia. The parties submit to the exclusive jurisdiction of the courts of Victoria, Australia. The terms of the Quotation override these Terms of Service to the extent of any inconsistency.
To the extent permitted by law and subject to the Australian Consumer Law, we exclude any terms that would otherwise be implied in this Agreement.