Standard Terms and Conditions
This document sets out the terms and conditions upon which Common Ventures Pty Ltd (we/us/our) will supply the Services to you.
1.1 A legally binding agreement is formed between us when we receive a signed copy of the Scope of Work (SOW), and consists of (in order of precedence), the SOW and these Standard Terms and Conditions (Agreement).
1.2 This Agreement will start on the Start Date and continue until the Services have been completed, unless terminated in accordance with the Agreement.
2.1 We will use best endeavours to perform the Services in accordance with this Agreement.
2.2 You acknowledge and agree that:
(a) any timeframes specified in the SOW are estimates only;
(b) the performance of the Services (including the achievement of any project objectives or timeframes) may be subject to circumstances beyond our control; and
(c) any failure to perform or complete the Services as a result of circumstances beyond our control will not constitute a breach of the Agreement.
2.3 We may sub-contract the Services to third parties but remain liable and responsible at all times for the performance of its obligations by each subcontractor.
2.4 During the Term, you will not engage another creative and strategic agency to perform the same or similar services as the Services.
3. Changes and out-of-scope work
3.1 Either party may propose a change to this Agreement by notifying the other party of the details of the proposed change.
3.2 If you request a change to the Services after the Start Date, we reserve the right to:
(a) revise the SOW, including project objectives and timeframes; and
(b) vary the Fees to reflect the change.
3.3 We will not change the Services or perform any out-of-scope work unless you have signed a change request form attaching the revised SOW or accepted Budget Estimate.
3.4 The latest approved SOW and Budget Estimate will supersede and replace all previous versions.
4. Fees and Payment
4.1 You must pay the Fees and reimburse us for reasonable (and if more than $100, pre-approved) out-of-pocket expenses incurred in the performance of the Services. You acknowledge and agree that:
(a) the amounts specified in the Budget Estimate are mere estimates of the likely fees and charges applicable to the Services. You must pay the actual fees and charges payable for the Service; and
(b) the actual fees and charges may be affected by circumstances beyond our control (including third party cancellation and refund policies).
4.2 Unless specified otherwise in the SOW and/or Budget Estimate:
(a) we will invoice you monthly in arrears for the performance of Services performed by us and for out-of-pocket expenses;
(b) we will invoice you the amount allocated to third party costs in the Budget Estimate as follows:
(i) 50% on our receipt of the signed SOW; and
(ii) 50% on your approval of the deliverable(s).
4.3 You must pay all invoiced amounts within 30 days of the date of our invoice.
4.4 If you fail to pay an undisputed invoice on time, we may: suspend performance of the Services; until the invoice is paid in full.
4.5 Unless specified otherwise, the Fees are exclusive of GST. If GST is payable on any supply made by us under this Agreement, you must pay us an additional amount equivalent to the GST at the time that payment to us is due.
5. Your obligations
5.1 You acknowledge that our performance of the Services is dependent on your feedback. You must promptly provide decisions, information and materials requested by us.
5.2 You represent and warrant that all information, images, artwork, material and other content you provide to us:
(a) is accurate, complete and current;
(b) does not infringe the intellectual property rights or other rights of any person;
(c) is not unlawful, fraudulent or defamatory; and
(d) if we are required to use any such content, you have obtained all necessary consents for us to use the content in connection with the Services.
5.3 We will not be responsible for any deficiencies or delays in the performance of the Services to the extent that it is attributable to your failure to approve any materials on a timely basis or other breach of this Agreement.
6. Intellectual Property Rights
6.1 The parties agree that the ownership of the intellectual property rights in any Pre-Existing Materials and any modifications to a party’s Pre-Existing Materials made during the provision of the Services will not be altered, transferred or assigned.
6.2 Each party grants to the other party a non-exclusive and royalty-free licence to use and reproduce the first party’s Pre-Existing Materials to the extent that such materials form part of, or are integral to, the Project Materials.
6.3 Upon full payment of the Fees and subject to clause 6.4, all proprietary and intellectual property rights in the Project Materials will vest in You
6.4 We do not agree to assign any generic formats or designs, processes, metadata, methodologies, skills, or know-how developed by Us (or any third party provider) in connection with the provision of the Services and which we may want to use with our other customers.
6.5 Upon full payment of the Fees, we grant to you a non-exclusive and royalty-free licence to use and reproduce any proprietary and intellectual property rights not assigned to you under clause 6.3 necessary to enjoy the full benefit of the Services.
7.1 The parties will:
(a) keep confidential the Confidential Information;
(b) use the Confidential Information for the sole purpose of performing its obligations under this Agreement; and
(c) not disclose the Confidential Information to any person other than those Associates who need to know the Confidential Information or as required by law.
7.2 You consent to us naming you as a client, use your business name and logos for the purpose for internal training, and with our prior consent, publicity and marketing purposes.
8. Termination and suspension
8.1 Either party may terminate this Agreement immediately upon written notice to the other party if the other party fails to remedy a breach within 30 days of a notice from the first party requiring it to do so.
8.2 Upon the termination or suspension of this Agreement, you must immediately pay to us:
(a) all amounts (excluding disputed amounts) owing for the performance of the Services up to and including the date of termination or suspension;
(b) except where You terminate for breach under clause 8.1, any reasonable costs incurred by us as a result of the termination of suspension, including third party cancellation fees; and
(c) an additional amount equal to 10% of the portion of the Project Budget not incurred up to and including the date of termination or cancellation.
9.1 To the extent permitted by law, our aggregate liability under this Agreement, whether based on warranty, contract, statute, tort (including negligence) or otherwise, will not exceed the Fees paid by you to us under this SOW as at the date of the claim.
9.2 We exclude liability for loss of profit, loss of revenue, loss of business opportunities, loss of data and any indirect or consequential loss or damage.
10.1 Nothing in this Agreement will be taken as giving rise to a relationship of employment, agency or partnership.
10.2 This Agreement contains the entire understanding between the parties concerning the subject matter of the Agreement and supersedes all prior communications.
10.3 This Agreement cannot be amended or varied except in writing and signed by the parties.
10.4 If any term or provision of this Agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this Agreement and the remaining terms and conditions will be unaffected.
10.5 This Agreement is governed by, and construed in accordance with the laws of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts of that place.
In this Agreement:
(a) Associates of a party means the officers, directors, employees, contractors and agents of that party.
(b) Budget Estimate means the estimated budget, including professional fees and production budget.
(c) ConfidentialInformation meansallinformationofa partywhichwouldreasonablyberegardedas confidential, disclosed to the other party before or after the date of the Agreement, but does not include information which is in, or comes into, the public domain other than by a breach of the Agreement, or which is independently known to the other party as evidenced by its written records.
(d) GST means the tax imposed by A New Tax System (Goods and Services Tax) Act1999andANewTax System (Goods and Services Tax) Transition Act 1999 and related tax imposition Acts of the Commonwealth of Australia.
(e) Pre-Existing Materials means any materials existing at the date of the Agreement.
(f) Project means the project described in the Scope of Work for which we are providing the Services.
(g) Project Budget means the sum of one or multiple approved Budget Estimates.
(h) Project Materials means all materials created by us (or on our behalf) in performing the Services.
(i) SOW means the Scope of Work attached to these terms and conditions.
(j) Start Date means the start date specified in the Scope of Work, or if no start date is specified, the date on which we start performing the Services.
(k) Services means the services to be performed by us, as described in the Scope of Work and Budget Estimate.
(l) Term means the term of this Agreement, as determined in accordance with clause 1.