TERMS OF USE
General Terms and Conditions – Terms of Use
These Terms of Use, govern the terms and conditions under which Taylormade Creative provides professional Marketing, Creative & Advertising services to another individual or company. Please read the following Conditions of Engagement & Legal Terms carefully and make sure you understand them. If you are unsure about something you can contact us, however, we recommend you consult with your lawyer or trusted advisor. If you are already working with Taylormade Creative, you agree to our terms, and are already bound by them.
ENTERING INTO A LEGALLY BINDING CONTRACT
(a). A contract/agreement between you and us will come into being in one of two ways:
(i). When you agree to in writing or sign a Statement of Works (SOW), Schedule or Service Level Agreement (SLA) we have created, we and you will enter a legally binding contract on the date you sign or confirm acceptance.
(ii). Where you and we agree orally that we should provide the Services then there will be a legally binding contract on the date of our oral agreement.
(b). We suggest that before you accept or orally agree to us providing Services that you read through these terms of use. If you have any questions, please ask us.
(c). You should keep a copy of these terms of use for your records as we reserve the right to amend these from time to time where required. We reserve the right to modify, update and amend the Terms with 30 days prior notice by posting the revised version of the Terms on the Taylormade Creative website. By your continued use of our Services after that posting you accept these revised Terms of Use.
Where the Client desires to retain Taylormade Creative (Consultant) to perform Services on the Client’s behalf, and Consultant desires to perform such Services set out in any communication, they will be subject to the terms and conditions of any SLA, SOW and these terms of use. The Consultant shall describe the specifics of such Services, the Compensation to be paid and the method under which Services shall be provided.
LEGAL TERMS
Definitions and interpretation
1.1. Definitions
The following words have these meanings in this Agreement unless the contrary intention appears:
We, Consultant, Us means Taylormade Creative;
You, Client, User means the individual, person or business representative reading this document;
Party, Parties, Party’s means both Taylormade Creative and the Client;
Agreement means any Schedule, Service Contract, Service Level Agreement (SLA) including any annexure;
Day means any day of the week including Saturday, Sunday, a public holiday in New South Wales and/or a Commonwealth public holiday;
Business Day means any day excluding Saturday, Sunday, a public holiday in New South Wales and/or a Commonwealth public holiday;
Commencement Date means either Item 1 of the Order Details in the SLA, otherwise from the date Services were commenced by Taylormade Creative;
Completion Date means the expected date any campaign or project Services are to be completed by;
EDM means Electronic Direct Mail;
SLA means Services Level Agreement;
SOW means Statement of Works;
Schedule means Agreement of Individual Services and details what is to be provided plus the amended SOW;
Scope means Services Scope, scope of services or SOW which lists the supplied or proposed Services to the Client;
Confidential Information means any information that is:
(a) Information, proposals, pricing, ideas, forms, specifications, processes, statements, formulae, trade secrets, drawings, and data (and copies and extracts made of or from that information and data) that is not in public domain is considered confidential information; and
(b) confidential by nature, stipulated as confidential or any other information that would be reasonably considered to be confidential due to the value of the information;
Intellectual Property Rights means all present and future rights in relation to copyright, trademarks, designs, patents or other proprietary rights, or any rights to registration of such rights, whether created, written, developed or brought to existence by the Client or the Consultant in the provision of the Services;
Order Details means the order for Services provided to Taylormade Creative from the Client from time to time and documented in the SOW, Schedule or SLA;
Services means the services specified in Item 3 of the Order Details or the provision of Services supplied by the Consultant as agreed between the Parties from time to time, including any contracted service or annexure;
Consideration means dollar amount to be paid for the service excluding GST and/or Spend Budget;
Spend Budget refers to any advertising monies to be used in the service(s) and in addition to any Consideration;
Materials means images, graphics, resources, plugins, software, fonts, logos, branding, text, graphs, data or any other assets, information that may be required or used in a creative project or service we provide.
1.2. Interpretation
In this Agreement:
(a) references to a person include an individual, form or a body, whether incorporated or unincorporated;
(b) clause headings are for references only and shall not form part of this Agreement nor used in the interpretation of this Agreement;
(c) if the time of doing an act or thing under this Agreement falls on a day which is not a Business Day, then the time of doing that act or thing shall be deemed to be the next Business Day;
(d) words in the singular include the plural and vice versa in accordance with the context of which that word is used;
(e) words importing a gender include other genders;
(f) a reference to a clause is a reference to a clause in this Agreement;
(g) a reference to any of the words ‘include’, ‘includes’ and ‘including’ is to be read as if followed by the words “without limitation”;
(h) a reference to a statute, ordinance, code or law includes regulations and other instruments under it and any consolidations, amendments, re-enactments or replacements of any of them;
(i) a reference to any party include that party’s executors, administrators, substitutes, successors and permitted assigns; and
(j) each party has participated in the negotiating and/or drafting of this document and in the event of ambiguity or a question of interpretation arising, this Agreement is to be construed as if the Agreement was drafted jointly.
Service Expectations And Acceptable Criteria
2.1. Providing the Services
(a). The work to be performed under this Agreement is referenced in the SLA under ‘Additional Documents’ referring to Schedule(s), and/or within a standalone SOW (Statement of Works) or Schedule and/or in writing via email. Upon verbal or written acceptance by both parties, the Consultant agrees to perform those Services set forth.
(b). Additional Services may be added to an existing SLA or SOW during the term of the agreement, and will be incorporated as an annexure (additional SOW or Schedule) which would be agreed by both parties, with the additional service(s) minimum commitment term being kept separate to any SLA that may be in existence.
(c). In providing Services to the Client, the Consultant shall be acting as an independent contractor, and not as an employee or agent of the Client. The Consultant shall have no authority, express or implied, to commit or obligate the Client in any manner whatsoever, unless agreed in writing.
2.2. Commencing the Services
(a). Once Consultant and Client have entered a legally binding contract, we will normally start providing the Services to you straight away or on a date agreed between the Consultant without further discussion with the Client. Occasionally the Services will be provided at some other date or time or be dependent on several factors.
(b). Our aim is to always provide you with the Services:
(i). using reasonable care and skill;
(ii). in compliance with commonly accepted practices and standards in the marketing and advertising creative services industry; and
(iii). in compliance with New South Wales laws and regulations in force at the time we are carrying out the Services.
(c) The Consultant will within seventy-two (72) hours provide notice to the Client requesting additional information if all of the relevant information and material has not been provided for the completion of the Services.
2.3. Our responsibility to perform the Services by particular dates
(a). We aim to carry out the Services by the dates and times we either say, agree or notify to you.
(b). Due to circumstances in or out of our control, and due to the nature of the Services we offer, we do not guarantee that:
(i). we will start performing the Services by a specified date or time; or
(ii). we will complete the performance of all the Services by any specified date or time; or
(iii). the performance of any individual part of the Services will be completed by a specified date or time.
2.4. Materials Impacting Performance
At the time we perform the Services we may not have all the Materials or Assets we need to perform the Services. This may be for a number of reasons such as:
(a). we have not provided an estimate and cannot reasonably establish what Materials/ Assets are necessary, or unavailable until we start performing the Services; or
(b). where we have provided an estimate, it may not have been reasonably possible to establish the need for particular Materials or Assets at the time we provided the estimate. The need for these may only be revealed when we start performing the Services; or
(c). whether or not we have provided an estimate, the condition of an item or the area which is the subject of the Services may only become apparent when we start performing the Services. In such cases we may need to recreate Assets or purchase Materials and will do so in the most cost-effective manner.
(i). If any of the Assets can be supplied, we will stop working on any Services that are impacted and return to continue performing the Services once obtained. Any time spent in obtaining the Assets will only be charged at our administration rates and at our discretion.
(ii). If Materials are available from a local supplier, then we normally travel to the supplier, purchase the Materials and return to continue performing the Services. We normally charge for the travel time at our normal administration charging rate and at our discretion.
(iii). If Materials are not available from a local supplier, we normally order the Materials and return on another occasion to continue to perform the Services where required. We will not charge you for any time spent in obtaining Materials if we have bought or ordered the wrong Materials.
2.5. What can happen if we cannot start performing the Services or complete performing the Services
(a). If we do not start or complete performing the Services within a reasonable period (see 2.5.c) from the date(s) we have agreed or notified, then you may either:
(i). choose to continue to wait until we can start performing the Services or complete performing them; or
(ii). terminate the contract.
(b). Where we have started performing the Services and you decide you wish to terminate the contract because a reasonable period has passed from when the Services should have been completed, you will only have to pay for any Services we have performed up to the date of termination and for any Materials which we have legal obligation to pay for. If you have made payment(s) to us in excess of the amount of Services we have performed or Materials we have purchased, we will return the difference to you within 90 days of the termination.
(c). What is a reasonable period of time depends on the type of Services we will be performing and the length of time they will take to perform. If the Services are due to take several weeks to perform, and we fail to start after a couple of weeks from when we were due to, then in such circumstances you may be entitled to terminate the contract.
2.6. Situations or events outside our reasonable control
(a). There are certain situations or events which occur which are not within our reasonable control (some examples are given in paragraph (b), directly below). Where one of these occurs, we will normally attempt to recommence performing the Services as soon as the situation which has stopped us performing the Services has been resolved. In such circumstances there may be a delay (sometimes a substantial delay) before we can start or continue performing the Services.
(b). The following are examples of events or situations which are not within our reasonable control:
(i). if Materials are not delivered on the date or at the time agreed with the supplier of the Materials (and it is not possible to obtain a replacement from an alternative supplier at all or within a reasonable amount of time, or the price charged by the alternative supplier is excessively higher than by the original supplier if ordered at short notice);
(ii). If you, the Client, has not provided information/documentation/materials pertinent to the undertaking of the Service;
(iii). where the Client, makes a change in the Services you wish us to perform (and this results in, for example, us having to do further work or wait for new or different Materials);
(iv). where we must wait for other providers of services (who have been engaged by you) to complete their work before we are able to perform the Services (or the relevant part of the Services dependent on the other provider if ordered at short notice);
(v). where we are unable to gain access to the Accounts/ Premises to carry out the Services at the times and dates, we have agreed with you;
(vi). where the areas in the Premises have not be readied by you, the Client, as we and you have agreed in order for us to perform the Services;
(vii). for some other unforeseen or unavoidable event or situation which is beyond our control.
(c). When there are events or situations which are not within our reasonable control, we:
(i). may continue to wait until we are able to recommence performing the Services. If you are required to make any payments during this period (for example if we and you have agreed that you will pay us in staged amounts) we still require you to make these payments, unless agreed in writing. Where you are not required to make any of the payments, this will only be until we are able to recommence performing the Services; or
(ii). will allow you, the Client, to terminate the contract. If you choose this option, then you will only have to pay for any Services we have performed up to the date of termination and for any Materials for which we have a legal obligation to pay. If you have made payment(s) to us in excess of the amount of Services we have performed or Materials we have purchased, we will return the difference to you within 90 days of cancellation.
2.7. Completing the Services
(a). The Consultant agrees to complete the Services by Completion Date.
(b). If the Consultant foresees being unable to complete the Services by any set Completion Date, the Consultant will inform the Client at least fourteen (14) days prior to the Completion Date, or where the Completion Date is less than fourteen (14) days from the Commencement Date, then three (3) days.
(c). Upon completing the Services, the Consultant shall deliver the Services to the Client by the means prescribed in Item 4 of the Order Details or as mutually agreed.
2.8. Rejection of the Services
(a). Notwithstanding clause 2.9 of this Agreement, the Client may reject the completed Services provided by the Consultant if the Client deems the completed Services have not been completed in accordance with the description provided in Item 3 of the Order Details.
(b). If the Services are deemed incomplete by both Parties, the Consultant agrees to rectify the Services within seven (7) days. If the Services are not rectified or are still deemed to be not in accordance with the Order Details by the Client, the Client may have grounds to cancel the Service, however will be required to pay any compensation for time spent.
2.9. Alterations to the Services
If the Consultant is required to alter the description of the Services, the Consultant will first obtain written confirmation from the Client via email of the changes for both the Services as well as the Consideration.
2.10. Service Management
(a). The following section provides relevant details on service availability, provision and monitoring of in-scope services and related components.
(i). Unless you and we agree otherwise, we will provide the Services on normal working days and start work no earlier than 9:00am and finish work no later than 5:00pm. A normal working day for us means Monday to Thursday, excluding any bank or other national holidays.
(ii) The performance of some of the Services may take place away from the Premises and over the weekend, Saturdays and Sundays as required.
(b) Effective support of in-scope services is a result of maintaining consistent service levels. Coverage parameters relating to support specific to the service(s) covered in this Agreement are as follows:
(i) The Consultant will offer support via email between 9am-5pm Tuesday to Thursday AEST.
(ii) Support requests will be solved immediately or as soon as reasonably possible. Consultant will provide the Client with an update on the request within 2-3 working days.
(iii) Support requests received outside the schedule (2.10.b.i) will be addressed by the Consultant on the next working day and solved as soon as reasonably possible.
CONSIDERATION AND PAYMENT
3.1. Consideration
(a) As compensation for services performed, the Consultant shall invoice the Client and the Client shall pay the Consultant in accordance with:
(i) the fees, charges and/or costs mutually agreed verbally or in writing; or where
(ii) Client agrees to pay the Consultant the amount set out in Item 5 of Order Details;
(a) set out in the Service Level Agreement (SLA); or
(b) set out in the Statement of Works (SOW).
(b) The Client agrees that the Consultant needs to reserve the rights to increase their Services fee and charge out rates over time to cover rising costs and reflect any global inflation impacting the business.
3.2. Time and Method for Payment
(a) Where a Statement of Works or a Service Level Agreement is supplied or in place:
(i) Client will make Payment of the Consideration pursuant to Item 6 of Order Details.
(ii) Client will make Payment of Consideration by the method prescribed in Item 7 of Order Details.
(b) Where a Service Level Agreement has not been supplied, payment for any services or creative materials happens in one of three ways, either:
(i). at the time we finish performing or supply the Services (reserved for Clients and individuals that Taylormade Creative have worked with previously and have a close working relationship); or
(ii). upfront payment for the total expected cost (any additional cost adjusted in a final payment); or
(iii). several payments over time (supplied as a payment schedule), often involving:
(a). the payment of a deposit (30-50% of estimate) before commencing the Services; and
(b). the remaining consideration we will be invoiced in accordance with the Agreement made between both parties.
(c) Where we have provided services and invoiced the Client:
3.3 Non-Payment
If full payment is not received, we reserve the right to suspend all activity on your account until full payment is received. Taylormade Creative is not responsible for any delays or short comings experienced by you as a result of non-payment on your part; additional fees & charges may apply.
3.4 Invoices and Payment
(a) The Client agrees:
(i). to comply with the terms of payment set out on the invoice issued;
(ii). to pay the total amount on or before the due date; and
(iii). supply a remittance advice via the business email to info@tcdesign.com.au.
(b) Invoices will be submitted electronically via email from the @tcdesign.com.au domain.
(c) Invoices are due and payable seven (7) days from receipt, unless otherwise agreed by both parties in writing.
(d) Where applicable invoices will reference the SOW, SLA or Schedule and include the following information:
(i). Explanation of Services;
(ii). Trip report for travel performed, indicating names of persons and companies visited, and purposes of trip;
(iii). Itemised expenses;
(e). Payment via Bank Deposit as per details on invoice.
(d). Where you seek to not pay amounts due to us
You will not refuse to pay any amount owing to us where there is only a minor or inconsequential defect or error in the performance of the Products or Services. You will be entitled only to refuse to pay no more than a proportionate amount of any amount due.
3.5. Expenses
(a). The Consultant shall be responsible for all expenses incurred in performing the duties, unless otherwise agreed in writing.
(b). The Client shall reimburse the Consultant for travel and expenses relating directly to the services, which will be communicated to the Client.
(c). We charge for travel. Local travel is considered a 10km radius of the Consultant’s business and does not incur a fee, however travel outside the local radius is charged per km as per our rates card (available on request).
(d). The Client agrees to reimburse the Consultant for administrative expenses such as postage, photocopying, secretarial support, telephone calls that relate directly to services provided.
3.6. GST – Goods & Services Tax
(a). Where GST is applicable, a tax invoice is supplied with 10% added to the total amount.
(b). Unless otherwise stated, all amounts disclosed, (whether orally or in writing), including out of pocket expenses, expressed, and described on or in connection with any project, estimate, SLA, SOW or Order Details, are listed in Australian Dollars (AUD) and are GST exclusive;
(c). Where the services are provided outside Australia, GST is inapplicable;
(d). The Consultant shall be responsible for the payment of all taxes applicable to any consideration paid and the Client shall not withhold or pay any federal or state taxes related to the work performed under this Agreement.
3.7. Our charges based on time spent
(a). We normally charge for our Services on a project or monthly basis, and charge for any time spent working on the Client’s business in 30-minute time blocks;
(b). Where an estimate has been provided, any out-of-scope items are charged in this way;
(c). We have a range of rates depending on the Services being provided (contact us for a confidential conversation);
(d). Our rates, also referred to as charges, costs, etc, and any amount communicated verbally or in writing are referred to as excluding GST;
The following is an example of how our charging structure works:
If we complete the Services within 50 minutes, we will charge for 2 x 30-minute periods. If we go over into another 30-minute period by 10 minutes, at our discretion, we may charge up to the last period completed.
3.8. Our charges based on an estimate
(a). Where we have provided an estimate, we aim to charge the Client that amount, allowing for a 10-20% variance rather than charging solely based on the time taken in organising and performing the Services. Note: we only provide estimates and not quotations or binding indications of how much we will charge due to the nature of the creative industry. Estimates are valid for a period of 7 working days from the date they are given.
(b). Where we have provided an estimate, we may need to charge a higher amount than stated in the estimate. This can occur for several reasons, where:
(i). what you require us to do changes, or the amount of work or Services you require us to provide increases or is different to what we agreed before we started performing the Services; or
(ii). it becomes apparent that the work involved is different to what we had agreed before we started providing the Services and we could not reasonably foresee this before starting;
(c). Where the amount of work involved is greater than that stated in the estimate (as set out in paragraph (b)) then following will happen:
(i). if the amount of extra time required to finish performing the Services will not exceed 20% of the amount stated in the estimate, then we will carry on completing the Services without contacting you to obtaining your agreement;
(ii). otherwise, we will not continue performing the Services and we will seek your approval for the extra amount that you may need to pay.
3.9. Advertising /Spend Budget
The Client agrees any monies allocated to advertising are in addition to Services Consideration and:
(a). are referred to as ‘Ad Spend’, ‘Spend Budget’, ‘Budget’ or similar;
(b). are allocated on a monthly basis;
(c). shall be used by the Consultant as required for running the agreed campaigns and service;
(d). if paid by the Consultant, will be paid immediately by the Client upon invoice;
(e). if paid directly by the Client, credit card details will need to be supplied to the Consultant;
(f). will roll over into the next month if it is not consumed;
(g). will be in addition to any ‘Service Fee’, ‘Consideration’ or similar;
(h). is the maximum amount to be spent in the month, however agreed by the Client that some small fluctuations do occur and that the Ad Spend could go over slightly.
3.10. Additional Charges & Fees
(a). If you fail to make payment by the required date, we reserve the right to:
(i). charge you a 10% fee of the outstanding amount and may stop performing any services.
(ii). if the outstanding amount remains unpaid for more than 10 days from the invoice due date, we may suspend performing the remaining Services until you make full payment and charge an additional 20% on top.
(iii). if the amount not paid represent more than 10% the total value of the Services and has remained unpaid for more than 14 days from the invoice due date, then we will charge an additional $150 AUD + GST, stop performing any Services and stop any allocated advertising spend until we receive full payment. Any monthly service consideration will still be required at the end of the month.
(iv). where this includes any hosting or renewals of domains and is past the invoice due date, any websites may temporarily be unavailable and offline to the public.
(v). any fees and charges that have been accumulated, will appear on your next invoice and make up a part of the total owed and payable.
(b). Travel expenses can be charged for travel outside the local area at a per km rate;
(c). Third-Party costs will be charged on top of any Services fee including printing, marketing or advertising.
CONFIDENTIAL INFORMATION/NON DISCLOSURE
4.1. During the course of Services;
(a). any information about the Consultant; the Client will keep strictly confidential and will ensure that its employees or others associated with the Client do not disclose any Confidential Information, including any estimates, pricing, agreements, proposals, procedures & recommendations by the Consultant, unless, and not until the Consultant agrees that the Confidential Information is in the public domain other than by a breach of this Agreement.
(b). the Consultant may be exposed to confidential and proprietary information including but not limited to products, processes, technologies, innovative concepts, customer information, processing capabilities, and information which may be of a personal nature and other valuable personal identity information designated as confidential expressly or by the circumstances in which it is provided (collectively “Confidential Information”).
4.2. Confidential Information does not include:
(a). information already known or independently developed by the recipient;
(b). information in the public domain through no wrongful act of the recipient, or
(c). information received by the recipient from a third party who was free to disclose it;
(d). information disclosed to a third party by the owner without restriction.
4.3. It is agreed that Confidential Information shall not be revealed or disclosed to any third party at any time, except as may be authorised in writing by an officer or authorised representative of the party that is the proprietary owner of the Confidential Information, or when such disclosure is required by law, subject to the receiving Party giving prior notice to the other party to allow it to seek protective or other court orders. Each party receiving Confidential Information hereby agrees that it shall not use, commercialise, or disclose such Confidential Information to any person or entity, except to the individuals having a “need to know” (and who are themselves bound by similar nondisclosure restrictions).
4.4. In the event that the Receiving Party or its Agents become legally compelled to disclose any of the Confidential Information, the Receiving Party shall use its best efforts to promptly notify the other party and provide reasonable cooperation with the other party in connection with its efforts to lawfully avoid or limit disclosure and preserve the confidentiality of the Confidential Information in such circumstances.
4.5. Both parties acknowledge and agree that the unauthorised disclosure of the Parties Confidential Information could cause harm and significant injury, which may be difficult to ascertain. The Parties make no warranty or representation as to the accuracy or completeness of any information provided to the Receiving Party hereunder; provided that neither party shall knowingly provide any false or misleading information to the other. Upon termination of this Agreement or at the request of the Client or Consultant, the Receiving Party shall immediately return all Confidential Information and copies thereof, or if directed, shall immediately destroy all copies of such.
4.6. Protection of Trade Secrets.
(a). Without the prior written consent, the Parties shall not directly or indirectly disclose or use at any time, either during or subsequent to the Consultants consulting arrangement with the Client, any trade secrets, know-how, or any other secret or confidential information, knowledge or data of either parties ‘Confidential Information’.
(b). Such Confidential Information shall include, but not be limited to, customer and supplier lists, product designs, engineering drawings, computer and software programs. Upon termination of this Agreement, or any time prior thereto upon request of either Party, the other Party shall promptly return all property and all Confidential Information which are in that Party’s possession or under that Party’s control, including all materials which incorporate such Confidential Information.
4.7. Disclosure and Use of Confidential Information
(a). All obligations of confidence set out in this Agreement continue in full force and effect after the Completion Date.
(b). The Parties must not disclose any Confidential Information to any third party, including the customer and/or its agents, employees or servants, without the prior consent of the other Party.
(c). If either Party discloses any Confidential Information to a third party without prior consent of the other Party, that Party will notify the other Party as soon as practicable.
(d). Notwithstanding clause 4.7(b), if either Party discloses any Confidential Information to a third party without the prior written consent of the other party, that Party is liable for any damage suffered by the other Party as a consequence of the disclosure.
(e). Each Party must keep confidential the terms of this Agreement. If a party becomes aware of a breach of this obligation, that Party will immediately notify the other Party.
(f). The Parties must not use any Confidential Information without the prior consent of the other Party.
(g). If either party uses any Confidential Information without the prior written consent of the other party, they will notify the other party as soon as practicable.
(h). Notwithstanding clause 4.7(b), if either Party uses any Confidential Information without the prior consent of the other Party, that Party is liable for any damage suffered by the other Party as a result of the use.
(i). This Agreement prohibits the disclosure of Confidential Information by either Party with exception to the following circumstances:
(a). the disclosure is to a professional adviser for them to provide advice in relation to matters arising under or in connection with this Agreement and the other Party has consented to the disclosure of such information to the professional adviser;
(b). the disclosure is required by applicable law or regulation; or
(c). if the confidential information is already in the public domain at no fault of either Party.
4.8. Third Party Providers
(a). A number of third party vendors who provide services for the Consultant and could be within the scope of the Agreement are managed by the Consultant on behalf of the Client. These third parties fall under the Agreement, as outlined in Clause 4; and
(b). these third parties are used at the discretion of the Consultant to provide services set out in any Agreement.
(c). Third party provider contracts that are the responsibility of the Client, whether related to our Agreement or not, will be the responsibility of the Client and also fall under the Agreement, as outlined in Clause 4.
(d). If a third party breaches the confidentiality, the responsible Party is liable for any losses or damages suffered and at the responsible parties discretion can pass any liability onto the third party.
IMPROVEMENTS AND INVENTIONS
5.1. The Consultant shall promptly notify and fully disclose to the Client, in writing, the existence and nature of any and all ideas, designs, apparatus, practices, processes, improvements and inventions (“Inventions”), which the Consultant has conceived or first actually reduced to practice during the term of this Agreement or within six (6) months after termination of this Agreement, if such Inventions relate to a product or process upon which the Consultant worked during the term of this Agreement.
TERMINATION OF AGREEMENT
6.1. Outline of Termination
(a). Notwithstanding any contrary provision contained elsewhere in this Agreement, this Agreement and the rights and obligations hereunder may be terminated:
(i). by the Client immediately if the Consultant defaults in the performance of Consultant’s obligations under the Agreement, including failure to provide the products or services set forth in a SLA or service Schedule and/or SOW where a time-frame has been specified; or
(ii). by the Consultant immediately if the Client defaults in the performance of its obligations under the Agreement.
(b). Either party then may terminate this agreement by providing thirty (30) days advance written notice, which notice shall not be provided until at least sixty (60) days subsequent to the execution date of an agreement.
6.2. Termination of Agreement – For the Client
(a). The Client may terminate an Agreement with the Consultant for any breach of this Agreement by providing fourteen (14) days written notice to the Consultant. At the Client’s discretion, the Client will allow the Consultant to remedy the breach, where possible, within fourteen (14) days’ notice, or another time-frame as the Client elects, and in being satisfied with the remedy of the breach by the Consultant, the Client will not terminate this Agreement.
(b). The Client may terminate this Agreement for any reason by providing the Consultant with thirty (30) days’ written notice of the Client’s intent to terminate this Agreement. However, an SLA or Schedule supersedes the thirty (30) day notice period and outlines commitment periods specific to the individual Client and/or Service.
(c). Upon receiving notification of the Client’s intent to terminate this Agreement, the Consultant will continue work on the Services until the lapse of the notice period, (the notice period being 30 days) unless the Client provides express written notice to cease work.
(d). If the Client terminates this Agreement for reasons other than a breach of this Agreement by the Consultant;
(i). the Client will pay the Consultant for the portion of the Services completed to date and time of cancellation (including the notice period) or;
(ii). the Client will pay the Consultant the agreed monthly Services fee, where an ongoing monthly service fee is in place (including the notice period), not to be mistaken for any payment plan/schedule that may have been arranged for the Client
(iii). the Client will be charged for any materials and/or resources the Consultant is contractually committed to purchasing in relation to the Agreement, this may fall outside of the notice period.
6.3. Termination of Agreement – For the Consultant
(a). The Consultant may terminate this Agreement by providing thirty (30) days written notice to the Client of the Consultant’s intent to terminate this Agreement.
(b). The Consultant may terminate this Agreement for a breach by the Client of this Agreement by providing fourteen (14) days’ written notice of the breach to the Client. During the fourteen (14) day notice period, the Client reserves the right to remedy the breach. If the Client remedies the breach which was the cause of the notice within the fourteen (14) day notice period, this Agreement will not be terminated by the Consultant.
(c). Upon providing notice of the Consultant’s intent to terminate this Agreement, the Consultant agrees to continue providing the Services until the cessation of the notice period unless otherwise instructed by the Client to cease work.
(d). If the Consultant provides notice of intent to terminate this Agreement,
(i). the Client will pay for any expenses committed to in the provision of the Services and any work which has been done, and,
(ii). at the time the Agreement is terminated, will pay any outstanding works completed between the provision of the notice to terminate, and the cessation of this Agreement.
(e). If the Client elects to have the Consultant cease work upon receiving notification of the Consultant’s intent to terminate, the Client will still be liable to pay amounts outstanding on work completed and in progress or started by the Consultant to the date the request to cease work was issued by the Client.
(f). Where an ongoing monthly service fee is in place, the agreed monthly service fee will be invoiced at the end of the notice period for the entire months services,
(g). If the Client does not fulfil obligations set out in the Agreement (such as by not paying any sums due to be paid to the Consultant) in a way which amounts to the Client terminating the contract,
(i). we do not have to accept your termination of the contract.
(ii). we may choose however to accept termination of the contract, and if we choose to do so, you will be required to pay to us a reasonable amount for the losses and costs (including loss of profit) we have suffered.
(iii). If you have paid a deposit, this will be retained and if our reasonable losses and costs (including loss of profit) are greater than the deposit paid, we will require you to pay for these in excess of the deposit retained.
Copyright and Intellectual Property Rights
7.1. Intellectual Property
(a). The Consultant shall retain all rights to pre-existing or otherwise, ideas, processes, procedures, and materials used by the Consultant in creating or developing products and/or Services to the Client.
(b). The Consultant warrants that the Intellectual Property and products the Consultant will produce, shall be original and shall not infringe any third party’s patents, trademarks, trade secrets, copyrights, or other proprietary rights.
(c). To the extent that the Consultant incorporates a third party’s proprietary materials into the Intellectual Property and products the Consultant produces for the Client, the Consultant shall obtain all authorisations necessary for such incorporation.
(d). The Consultant reserves the right for it to use any procedures, processes, creative, results that were achieved / developed in providing the Services to the Client for its own use.
(e). The Client warrants to the Consultant they own the Intellectual Property rights in any Source Material supplied for use in any Services or production of any advertising or promotional material. The Consultant takes no responsibility for any breach of Intellectual Property Rights for any Source Material that might be alleged by a third party. The Client agrees to promptly and efficiently defend any legal action commenced by a third party in relation to any alleged breach of Intellectual Property Rights. If the Consultant is joined as a party in any such action, the Client agrees to pay Taylormade Creative’s legal costs of defending such action with the Client.
(f). The Client agrees to grant an exclusive licence to the Consultant to use the Intellectual Property Rights in any Source Material provided by the Client.
(g). The Client agrees that all Intellectual Property Rights in the creative works produced by Taylormade Creative belong to the Consultant, including but not limited to all working files, graphics and processes.
(h). The Consultant agrees to grant a licence to the Client for any end use items or materials that have been produced for the Client for the specific purpose in which the works were created, which is documented in writing, in either an email, brief, Schedule, SLA or SOW. Any further use beyond the original brief must be by way of a further licence or otherwise, with prior written consent by Taylormade Creative.
Indemnification
8.1. To the fullest extent permitted by law, the Parties shall indemnify the other Party, hold it harmless, and defend and protect it from and against any and all loss, damage, liability, judgment, claim, cost or expense (specifically including reasonable attorneys’ fees and other costs and expenses of investigation and defense), of any sort, resulting from injury or damage of any sort to any person or entity, arising out of or in connection with either Parties’ performance under this Agreement, including the performance of any other party for whom the Parties are responsible under this Agreement. The Parties’ obligations under this Section apply to claims or demands alleging violation of copyright, trademark, trade name or other intangible property rights.
Limitation of Liability
9.1. Neither Party shall have any Liability to the other Party in the event that any information exchanged or provided pursuant to this Agreement is found to be inaccurate in the absence of gross negligence, bad faith or willful misconduct by the Party providing such information.
9.2. We shall only be liable for any loss or damage suffered by you which is a reasonably foreseeable consequence of a breach by us of this contract. In the event that any loss or damage suffered by you relates to your business activities then we exclude all liability for any business loss and in particular we exclude all liability for loss of profits or other economic loss arising out of a breach of this contract.
Non-Solicitation
10.1. Non-Solicitation of Personnel
(a). During the course of this Agreement, the Parties may have access to commercially sensitive information and material. The Parties will not during or after this Agreement during the Restraint Period, either directly or indirectly, without written consent from the other Party:
(i). Employ, canvas, solicit, entice or engage any of the other parties employees, servants, contractors, and/or agents (‘Personnel’), to terminate their employment with the party; and
(ii). Employ, engage, retain or sources any of the other parties Personnel for any services that are of a competitive nature to the parties business.
(b). For the purposes of this Clause 10.1, the Restraint Period means 12 months, nonetheless:
(i). If it is determined that 12 months is unreasonable, the restraint will last for a period of 9 months; or
(ii). If it is determined that 9 months is unreasonable, the restraint will last for a period of 6 months; or
(iii). If it is determined that 6 months is unreasonable, the restraint will last for a period of 3 months.
(c). Both Parties agree that the restraints contained in this clause are reasonably necessary to protect the Parties business interests and both Parties acknowledges that this clause is fair and reasonable under the circumstances.
10.2. Non-Solicitation of Clients
(a). During the course of this Agreement, the Parties will have contact with, and access to, clients, prospective clients, client records and details of the other Parties marketing efforts, strategies and plans that includes commercially sensitive information and material. The Parties will not during or after this Agreement, either directly or indirectly, without written consent from the other Party:
(i). Canvas, solicit, entice or engage any of the other Parties clients, or prospective clients who the Party has attempted to retain or in the process of engaging (the other party); and
(ii). Directly or indirectly interfere with or engage, procure, endeavour to entice away, aid, abet or counsel any of the Clients for any services which are of a competitive nature to the other Parties business.
(b). For the purposes of this clause the Restraint Period means 12 months, nonetheless:
(i). If it is determined that 12 months is unreasonable, the restraint will last for a period of 9 months; or
(ii). If it is determined that 9 months is unreasonable, the restraint will last for a period of 6 months; or
(iii). If it is determined that 6 months is unreasonable, the restraint will last for a period of 3 months.
(c). The Parties agree that the restraints contained in this clause are reasonably necessary to protect the Parties business interests and both Parties acknowledges that this clause is fair and reasonable under the circumstances.
GENERAL MATTERS
11. Communication
11.1. Communication between Parties
(a). Where an SLA or SOW is in place, the parties agree on the forms of communication pursuant to Item 8 of Order Details.
Unless otherwise agreed:
(i). we will provide the Services on our normal working days, as outlined in Clause 2.10;
(ii). can be contacted by telephone on 02 42 166 641; and
(iii). can be emailed at info@tcdesign.com.au
(b). For any important or urgent matters that may arise for an existing client, you will have your account managers details and how you can reach them.
(c). For new business and other important contracts or legal matters, we suggest that you email us at info@tcdesign.com.au or send any communications by registered post to 43 Heaslip Street, Coniston, NSW 2500, Australia.
12. Warranty of Services
(a). The parties agree that services shall be performed hereunder in a professional manner and that the Intellectual Property and product/services that Taylormade Creative provides to the Client shall meet the requirements set forth in any SLA or SOW.
(b). The Consultant further warrants that the Consultant has all rights to enter into this Agreement and that there are no impediments to the Consultant’s execution of this Agreement or the Consultant’s performance of services hereunder.
13. Advertising Conditions & Creative Artwork
(a). The Client is required to comply at all times with the Media Source’s guides, terms and conditions regarding advertising. Taylormade Creative takes no responsibility for any loss or damage that might be suffered by you as a result of your failure to comply with the terms and conditions of the Media Source.
(b). All materials created by the Consultant will be supplied to Client for approval prior to sending to any Media Source.
(i). It is the Client’s responsibility to check all materials for any errors before approving as the Consultant takes no responsibility for any loss or damage that might be suffered by you as a result of your failure to comply.
(ii). Where colour needs to be reproduced and a brand guide does not exist:
(a). the Consultant reserves the right to spend extra time, resources and money testing colours to best represent the Client;
(b). the Client will reimburse the Consultant for extra time, resources and money spent to best represent the Client;
(c). the Consultant will not be held accountable for any reproduction issues or discrepancies.
14. Errors
(a). Taylormade Creative takes no responsibility for any mistakes or errors which may be present on documents sent to the Media Source by the Client or approved by the Client and sent to the Media Source by the Consultant. The Consultant will make every effort and use its best endeavours to try and ensure that the material sent to the Media Source will be free from errors, however does not make any warranties in that regard.
(b). In the event of errors occurring in the published advertising for whatever reason, you cannot claim any compensation from us beyond:
(i). the time required to amend and resupply any artwork.
(c). You acknowledge that we are not responsible for any errors in drafts that were approved by you and you specifically acknowledge that we are not liable for loss or damage beyond that stated above in any event.
15. Alteration of Contract
(a). We have the right to amend the terms and conditions of a contract where:
(i). we need to do so in order to comply with changes in the law or for regulatory reasons; or
(ii). we are changing the rates we charge for the provision of Services as provided for in Clause 3; or
(iii). we need to correct any errors or omissions (and this right includes the right to change any of the documentation which forms part of the contract), as long as such correction is minor and does not materially affect the contract.
(b). Except as stated in an Agreement, where we are making any significant amendment, that changes the nature of the contract, we will
(i). give you thirty (30) days prior notice (unless the contract is terminated before that period)
(ii). make any amendments in writing and have them signed by both parties
16. Assignment / Partnership
(a). Nothing contained or implied in this Agreement will create or constitute, or be deemed to create or constitute, a partnership between the parties. A party must not act, represent or hold itself out as having authority to act as the agent of or in any way bind or commit the other parties to any obligation without the written consent of the other party.
(b). Neither party may assign any of its rights, benefits, or obligations under this Agreement without the written consent of the other party.
17. Governing Law
(a). This Agreement is governed by, and will be interpreted in accordance with, the laws of the State of New South Wales, Australia; and the parties submit to the jurisdiction of the courts of New South Wales and the Commonwealth of Australia.
(b). In the event of any dispute arising out of or in relation to the Services, the Client agrees that the exclusive venue for resolving any dispute shall be in the courts of Australia, situated in New South Wales, Australia.
18. Injunctive Relief
Both parties acknowledge it would be difficult to fully compensate the other party for damages resulting from any breach by either Party of the provisions of Clause 4, 5, 6, 7, 8 and/or 9. Accordingly, in the event of any actual or threatened breach of such provisions, the Parties shall, in addition to any other remedies that it may have, be entitled to temporary and/or permanent injunctive relief to enforce such provisions.
19. Severability
If any covenant, undertaking or condition of this Agreement is found to be void or unenforceable at law, that covenant, undertaking or condition will not affect any other term of this Agreement and, as far as is possible, will be read down to the extent required to make it enforceable. lf necessary, the parties will, in good faith, negotiate a valid and enforceable replacement term to express their intention.
20. Force Majeure
Neither party shall be liable for any failure to perform under this Agreement when such failure is due to causes beyond that party’s reasonable control, including, but not limited to, acts of state or governmental authorities, acts of terrorism, natural catastrophe, fire, storm, flood, earthquakes, accident, strikes, and prolonged shortage of energy. In the event of such delay the date of delivery or time for completion shall be extended by a period of time reasonably necessary to overcome the effect of any such delay.
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We reserve the right to modify, update and amend the Terms with 30 days prior notice by posting the revised version of the Terms on the Taylormade Creative website. By your continued use of our Services after that posting you accept the revised Terms.
Taylormade Creative – Updated September 2022
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