Effective Date: 11 December 2024

General Terms and Conditions for commissioning artwork by Rachel Harris (trading as Rachel Harris Art, ABN 962 2616 1490) (collectively and individually referred to as “Rachel Harris Art”, or “the Service Provider”).

The General Terms and Conditions for commissioning artwork forms part of, and must be read in conjunction with, our Website Terms and Conditions. It is important that you check your order or items upon receipt and always before use. If any errors occur or issues arise, then these need to be reported to us immediately so that we can investigate. The The General Terms and Conditions for commissioning artwork does not affect your statutory rights.

1.              OVERVIEW

1.1            This Services Agreement is between the Service Provider and the Client.

1.2            The Service Provider provides a range of commissioned artwork services, and the Client wishes to enter into an agreement for these services and as specifically set out in the Proposal.

1.3            This Services Agreement consists of these General Terms & Conditions (T&Cs) and the Proposal along with any subsequent Proposal between the parties from time to time (Agreement).

1.4            The Proposal contains the specific information that is relevant to the Service Provider’s unique arrangement with the Client, and is designed to be read alongside the T&Cs. The Proposal comprises the mutually-agreed specific details of the individual commission as stated via email or other written communication.

1.5            If there is any inconsistency between the T&Cs and the Proposal, the content of the Proposal will prevail to the extent of the inconsistency. Subject to the nature of the Services being provided, additional Special Conditions may apply as set out in the Proposal.

1.6            Any variation to the Proposal must be mutually agreed upon in writing.

1.7            The Agreement will start on the Commencement Date and continue for the Term, unless terminated prior to that date in accordance with these Terms.

2.              CLIENT RIGHTS AND OBLIGATIONS

2.1            The Client acknowledges that they:

a)            have read and understood the T&Cs and the Proposal prior to signing the Agreement;

b)            are solely responsible for determining whether the Services are appropriate for them; and 

c)             have sought professional and/or legal advice should they require clarification on any aspect of the Agreement.

2.2            The Client further acknowledges, agrees and accepts that they will:

a)            provide all necessary and accurate Client Information, documentation, and data relevant to the project in a timely manner as set out in this Agreement;

b)            promptly review and provide feedback on deliverables and will approve or request revisions within the agreed-upon timeframe as set out in this Agreement

c)             ensure the availability of any required materials, items, or resources necessary for the successful execution of the Services;

d)            make timely decisions on artwork choices, selections, and other relevant matters to prevent delays in the project;

e)            ensure payments of Fees will be made on time and as set out in this Agreement;

f)              maintain open and effective communication with the Service Provider, promptly addressing any questions, concerns, or requests for information;

g)            facilitate the timely completion of the Services by adhering to the Key Dates set out in the Proposal;

h)            understand that the Service Provider will perform the Services to the best of the Service Provider’s ability and the resulting artwork is a stylistic, artistic interpretation that is not identical to the reference photograph(s);

i)            fulfill any obligations related to third-party agreements or services that are integral to the progress of the Services; and

j)              respect the Service Provider's intellectual property rights and agree to use the Deliverables for the Agreed Purpose as set out in this Agreement.

3.              SERVICE PROVIDER OBLIGATIONS

3.1            Service Standards and Professional Conduct

The Service Provider shall always conduct themselves in a professional manner while providing the services. This includes being punctual, respectful of the Client’s rights and providing the Services to a reasonable standard and of a reasonable quality consistent with industry best practices, and the Service Provider will actively engage in quality assurance processes to monitor and enhance service delivery. 

3.2            Schedule and Key Dates

The Service Provider agrees to perform the Services and provide the Services and Deliverables to the best of the Service Provider’s ability and in accordance with the Key Dates as set out in the Proposal.

If Services outside the scope are required, these will be quoted separately at the Service Provider’s Hourly Rate.

3.3            Commissioned Artwork Services

Where Commissioned Artwork services are provided, the Service Provider’s obligations are set out below:

Scope:

Consultation: Communicating with Client to understand Client needs and project specifics. Detailed requirements will be documented in the Proposal.

Perform Commissioned Art Work: Complete commissioned artwork in accordance with the terms and conditions set forth in the Proposal.

Limitations:

a)            Revisions and Alterations

The Proposal specifies the number of revisions included. Any additional revisions requested by the Client may incur additional charges.

Changes significantly altering the original concept, as initially agreed upon, may incur additional charges. In some circumstances the changes may be so significant they require the commencement of a new artwork at additional cost to the Client.

b)            Content and Assets

i.       The Service Provider’s role is confined to creating and incorporating commissioned artwork elements based on the Client’s input and requirements. The generation of additional artistic content, unless explicitly specified in the Proposal, falls outside the scope.

ii.     The Service Provider is not responsible for delays in project completion due to late or incomplete submissions by the Client.

c)             Materials and Production

i.       Clarify that additional production services for the Client (e.g. prints) are not included unless specified in the Proposal.

ii.     If production services are required, they may involve additional costs and timelines.

d)            Stock Images

i.       If the Service as agreed in the Proposal requires the use of licenced stock images not originally created by the Client or the Service Provider, the Service Provider will incorporate these costs into the Client’s invoice.

e)            Third-Party Services

Any third-party services or software required for specific artwork needs (e.g., image licenses, mounting or framing services) are not included unless expressly mentioned in the Proposal.

f)              Project Timelines

i.       Client’s responsibilities in adhering to project timelines and deadlines are critical.

ii.     Delays caused by Client feedback or approval processes may impact the project delivery schedule.

4.              MUTUAL OBLIGATIONS

4.1            Each party agrees that:

a)            they will maintain valid and adequate insurance coverage during the term of this Agreement, as much as practicable. The insurance coverage should be sufficient to protect against any claims that may occur during the provision of the Services;

b)            they will comply with all Applicable Laws;

c)             the other party will not be liable for any failure to carry out any obligation under this Agreement to the extent it is caused by the failure of the other party to comply with its obligations under the Agreement; and

d)            if delays occur for reasons beyond the parties’ control, such as due to a Force Majeure Event or the failure of third parties to meet their obligations, rendering the Key Dates in need of being rescheduled, the parties will use their best efforts to reschedule the Key Dates accordingly.

5.              FEES AND PAYMENT TERMS

5.1            Deposit

A non-refundable Deposit is required to reserve a Start Date in accordance with the Proposal and is designed to offset the administrative and operational costs associated with processing and reserving resources for the Service Provider services. If the Client wishes to delay the start date, the Client must provide the Service Provider with a minimum of 14 days’ notice before the start date outlined in the Proposal. Provided such notice is given, the Service Provider will accommodate the change in start date to the best of their ability.

5.2            Fees

All Fees will be payable via electronic funds transfer or credit card to the Service Provider’s nominated bank account on the Payment Dates set out in the Proposal. The Client will receive an Invoice from the Service Provider prior to payment being due in each instance.

All amounts payable or other consideration provided in respect of amounts payable in relation to this Agreement are exclusive of GST unless otherwise stated.

All GST must be paid at the time any payment to which it relates is payable (provided a tax invoice has been issued).

5.3            Cooling Off Period

The Service Provider offers a 14-day cooling off period for the Client to ensure that the Services are right for them.  If the Client cancels during the cooling off period, the Service Provider will refund Fees paid in advance. 

5.4            Expenses

The Client agrees to cover any out-of-pocket expenses incurred by the Service Provider in the course of delivering the Services to the Client. These additional expenses will be approved by the Client in writing prior to being incurred.

5.5            Increase to Hourly Rate

The Service Provider is entitled to vary their Hourly Rate during the Term on providing the Client with 14 days’ written notice, this will not affect any Fee already agreed and as set out in the Proposal, however it may impact any future Services and any out of scope work.

5.6            Additional work Fees

If the Client engages the Service Provider to complete additional work (outside of the scope of the original Proposal) the Service Provider will issue the Client with an estimate of additional work fees, charged at the Service Provider hourly rate. Once agreed by the Client, the Service Provider will issue the Client with an invoice for the additional work, payable within fourteen (14) days. The Service Provider will not be able to commence the additional work until the invoice has been paid in full, unless stated otherwise.

5.7            Recovery of Unpaid Fees

If the Client do not pay the Service Provider any portion of the Fees within the stipulated timeframe, the Service Provider reserves the right to suspend further Services until the outstanding payment is settled.

The Service Provider may charge the Client interest at the Interest Rate set out in the Proposal. If unpaid Fees are recovered through an external agency, the Client acknowledges that the Client will be responsible for the costs involved in the recovery.

6.              REFUNDS

6.1            Deposit Fees

Subject to the payment terms set out in clause 5, the Client understands, agrees and accepts that the Deposit Fee is non-refundable in all circumstances, except as required by law. The Deposit Fee is considered reasonable to cover administrative costs, pre-allocated time, and lost opportunity to accommodate other clients. The Client understands, agrees and accepts that if they nominate to terminate the Agreement at any time during the Term, the Deposit amount is understood to have been forfeited.

6.2            Cooling off period 

If the Client terminates the Agreement during the Cooling-Off period, the Service Provider will refund Fees paid in advance.

6.3            Fees

Due to the nature of the Services and Deliverables (i.e. custom-made, commissioned artwork), the Client cannot request a refund from the Service Provider where:

a)            the Client has changed their mind;

b)            the Client’s personal or financial circumstances have changed;

c)             the reason for termination is outside of the Service Provider’s control; and/or

d)            the Client insists on Services being performed in a way that is against their advice.

Refunds will be offered in accordance with both Australian Consumer Law and applicable state Fair trade legislation. The Service Provider is permitted to exercise their discretion in any circumstances where a refund of any fees already paid by the Client may be appropriate.  

6.4            Processing

Where it is determined that a refund is due, the Service provider will organise prompt payment via:

a)            the original payment method;

b)            third party payment provider (e.g. SquareSpace, Stripe, Square); or

c)             as otherwise agreed between the parties.

Where a third party processor is required for the transaction, the Client acknowledges and agrees that transaction/processing fees may be deducted from the refund amount.

6.5            Post-Refund Obligations

a)            Where the Client receives a refund either directly from the Service Provider or via a Chargeback the Client acknowledges, agrees and accepts that they will:

i.       destroy all electronic copies of any Intellectual Property or Deliverables issued to the Client by the Service Provider during the Term of the Agreement and provide written confirmation to rachel@rachelharrisart.com.au once completed; and

ii.     not use any Intellectual Property or Deliverables of the Service Provider for any purpose.

b)            Where the Client does not comply with clause 7.5 a) the Service Provider is entitled to recover the fees refunded through a formal debt recovery process including any interest on the outstanding amount and seek further legal remedies, where appropriate.

c)             For the purposes of these Terms, "Chargeback" means the reversal of a payment in response to a request that a customer files directly with their issuing bank or payment network provider.

7.              CLIENT INFORMATION AND FEEDBACK

7.1            The Client acknowledges that

a)            they will be required to provide the Service Provider with clear and comprehensive Client Information, instructions, and specifications for the Services as set out in the Proposal;

b)            the Service Provider will rely upon information the Client provides as being accurate to the extent of the Client’s knowledge and the Client is responsible for providing the Service Provider with updated information throughout the Term of the Agreement;

c)             the Service Providers ability to meet the Key Dates is partially dependent on how promptly the Client’s feedback or approval is provided;

d)            they will be required to provide written feedback or approval within seven (7) days of the Service Provider sending materials to the Client at any stage during the Term of the Service Provider Agreement; and

e)            if feedback is not provided within the timeframes specified in the Proposal, the draft deliverables will be deemed to be accepted and the incorporation of any additional feedback will be subject to the Service Provider Hourly Rate.

7.2            If the Service Provider has any questions or requires clarification regarding the Client Information, they will promptly seek clarification from the Client to ensure there is a clear understanding of the requirements.

7.3            In the event that the Service Provider believes any aspects of the Client Information are contradictory, unclear or impractical, the Service Provider will notify the Client for further discussion and resolution and the Client agrees to provide timely feedback in accordance with the Key Dates specified in the Proposal.

7.4            The Service Provider will not be liable for any errors or defects in the Deliverables after they have been accepted by the Client, and the correction of any errors or defects after completion of the Deliverables will be subject to the Service Provider Hourly Rate.

8.              DELAYS AND NONCOMPLETION

8.1            The Service Provider will not be liable for any failure to perform the Services or meet the Key Dates to the extent that it is caused by the Client’s noncompliance with their obligations under the Agreement.

8.2            If the Service Provider is delayed or prevented from performing the Services or meeting the Key Dates, either due to their noncompliance with their obligations or a Force Majeure Event, the Service Provider reserves their right to reschedule the Key Dates.

8.3            If the Service Provider is unable to reschedule the Key Dates due to a Force Majeure Event, this shall not be deemed a breach of the Agreement. 

8.4            If the Service Provider is unable to perform the Services for any reason and is unable to reschedule the Key Dates, the Client are entitled to terminate the Agreement and receive a full refund of Fees paid, less deductions for Services already performed.

9.              INTELLECTUAL PROPERTY

9.1           Licence Grant

a)            To the extent that a party is required to use any of the other party’s Intellectual Property (IP) for the purpose of performing their obligations under this Agreement, each party grants to the other a revocable, non-transferable, non-exclusive, royalty-free licence to use the other party’s IP for that sole purpose.

b)            The licence granted by each party to the other to use IP for the purpose set out in the Agreement is conditional on the recipient not sub-licensing, publishing, selling, reproducing, or otherwise allowing it to be used by third parties, and also not modifying it in any way except as otherwise agreed.

9.2           Client provided Intellectual Property

For any intellectual property (e.g. reference images) that the Client issues to the Service Provider during the Term of the Agreement, the Client warrants that they are the owner of this intellectual property and indemnify the Service Provider against any claim made by a third party arising out of any breach of intellectual property rights. 

9.3           Usage and Distribution of Deliverables

The Client shall have the right to use the Deliverables for the Agreed Purpose, as specified in the Proposal.

9.4           Assignment of Intellectual Property

a)            The Service Provider agrees to grant the Client full ownership to the Deliverables created under this Agreement upon receipt of full payment of all Fees owed by the Client.

b)            Until full payment is received, the Service Provider retains ownership of the Intellectual Property rights and any other content created as part of the Services and grants the Client a non-exclusive, revocable license to use the Intellectual Property and any other content solely for the purpose of evaluating the Services provided.

c)             Upon receipt of full payment, ownership of the Assigned IP (if any, as stated in the Proposal) will automatically transfer to the Client, and the Service Provider shall promptly provide (if necessary) any documentation or transfer of rights to evidence such transfer at the Client’s expense.

d)            The Client agrees not to sublicence, publish, reproduce, sell or otherwise provide the Deliverables to third parties except in accordance with the Agreed Purpose.

e)            The Service Provider retains ownership of all Intellectual Property Rights in the Retained IP outlined in the Proposal and grants the Client a limited licence to use it for the Agreed Purpose on full payment of the Fees.

f)              Notwithstanding the assignment of rights, the Service Provider reserves the right to periodically audit the use of the Deliverables to ensure compliance with the Agreed Purpose. The Client agrees to cooperate with such audits and to provide access to relevant records, inventory, and other materials related to their use of the Deliverables upon request.

g)            In the event that the Deliverables are used for purposes beyond the Agreed Purpose, the Client shall be liable for additional fees as determined by the Service Provider (acting reasonably) or as mutually agreed upon in a separate agreement.

h)            The specifics of the audit procedure, including frequency, notice period, and manner of audit, shall be as set out in clause 9.6.

9.5           Moral Rights and Third Party Rights

Each party must obtain written consent from individuals who hold Moral Rights for any materials they contribute under this Agreement. This ensures that the materials can be used in accordance with this Agreement and that the use of the materials by either party, its licensees, successors, or authorised individuals will not infringe anyone's Moral Rights.

a)            The Client and the Service Provider acknowledge that all Third-Party Materials are the exclusive property of their respective owners and where Third Party Materials are required to perform the Services or otherwise required to be integrated into the Deliverables then:

b)            the parties will agree and obtain a licence and any costs associated with obtaining a licence; and

c)             any costs associated for the use of Third-Party Materials will be borne by the Client.

9.6           Your auditing, record-keeping and reporting obligations include:

a)            maintaining full, true and separate books of the accounts, records and documentation pertaining to your use of the Deliverables, Final Product and other transaction records;

b)            providing us with any documentation or information that is necessary to enable us to verify and monitor your compliance with your obligations under this Agreement within 7 days of request, excluding or redacting any information that is not relevant to your compliance with this Agreement;

c)             providing us with the reports and documentation set out in the Proposal; and

d)            accounting for any profits made that have not been reported and paying to us any funds due as a result of any discrepancies.

9.7         Attribution Requirements 

You acknowledge and agree that you will include acknowledgement of the Service Provider, anywhere you display the artwork, including but not limited to websites  (where the appropriate license has been acquired) or on social media.

9.8            This clause survives termination or expiry of this Agreement.

10.          TERMINATION

10.1            Termination for convenience

a)            The Client may terminate this Agreement by providing written notice to the Service Provider at least 30 days (Notice Period) prior to the Start Date outlined in the Proposal. The termination notice must be sent via email or certified mail to the contact listed within the Proposal.

b)            If the Client provides notice of termination consistent with Clause 10.1 (a), the Service Provider will not commence work on any Deliverables and will issue a pro-rata refund for any prepaid services that have not been rendered, excluding Deposits paid.

c)             Work and Fees During Notice Period

d)            If the Client provides less than 30 days notice and/or the Service Provider has commenced work on Deliverables outlined in the Proposal,

Upon notice of termination, the following options are available:

i.     The Service Provider may continue to perform the agreed upon Services during the Notice Period, with Fees to be provided for this work as outlined in the Agreement; or

ii.   Alternatively, the Service Provider may choose to cease work immediately.  In this case, the Service Provider will issue a pro-rata refund for any prepaid services that have not been rendered; and

iii.    Any work completed up until the point of termination, whether prior to or during the Notice Period, are due and payable in accordance with the payment terms set out in this Agreement.

10.2        Termination by Service Provider

a)            The Service Provider may terminate the Agreement with immediate effect if:

i.       the Client do not pay the Fees by the Payment Dates or within the timeframe specified in the Proposal or applicable invoice;

ii.     the Client fails to provide the Client Information or other information within a reasonable time of the Service Provider request;

iii.   the Client otherwise breaches any obligation under the Agreement;

iv.    the Service Provider considers that mutual trust or confidence no longer exists;

v.     the Service Provider determines that they are no longer able to perform the Services for any reason.

b)            If the Service Provider terminates the Agreement in accordance with clause 10.1(a) the Service Provider will, at the Service Provider’s sole discretion:

i.       complete all work for which the Client have paid the associated Fees; or

ii.     refund Fees paid for work not yet performed, or not able to be performed as a result of termination.

c)             Upon termination for the Client's breach, the Client shall immediately cease any further use or distribution of any content, including the Deliverables provided by the Service Provider.

d)            The Client acknowledges that in the event of termination due to their breach, they shall remain liable for the outstanding Fees owed to the Service Provider, as well as any additional costs or damages incurred as a result of the breach.

10.3        Termination by Client (for Breach)

a)            The Client may terminate this Agreement by providing written notice to the Service Provider in the event of a material breach by the Service Provider such as a failure to deliver the Services as agreed in the Proposal and has not remedied the same within 14 days of the date of written notice.

b)            Upon termination for the Service Provider's breach, the Service Provider shall promptly refund any Fees paid by the Client for Services not yet provided.

10.4        Termination by either party (breach or Force Majeure)

a)            Either party may terminate the Agreement if the other party:

i.       is unable to meet their obligations due to a Force Majeure Event for a period exceeding 30 days;

ii.     commits a material breach of the Agreement which is not capable of remedy; and/or

iii.   becomes insolvent or bankrupt.

11.          POST TERMINATION OBLIGATIONS

11.1        Outstanding Fees

The Client shall pay all outstanding Fees and expenses incurred up to and including the termination date within 14 days of receiving the final invoice.

11.2        Revocation of Access

Upon termination, the Client’s access to any exclusive services, websites and resources provided by the Service Provider will cease.

11.3        Return of Property

a)            the Service Provider will promptly return any property provided by the Client for the purpose of performing the Services, including reference images and access passwords; and

b)            where the Client has any property belonging to the Service Provider, they must promptly return such property to the Service Provider.

11.4        Maintain Confidentiality

a)            each party must continue to maintain the confidentiality of any confidential information disclosed during the term of the Agreement and return or destroy (at the other party’s request) all Confidential Information of the other party; and

b)            the Service Provider may be required to retain Client’s records for a period consistent with legal and ethical record keeping requirements as stipulated by applicable law and will hold such records in compliance with privacy legislation.

11.5        Ownership of Deliverables

a)            In the event of any cancellation, the Service Provider retains ownership and intellectual property rights of any wholly or partially completed Deliverables produced as part of the Agreement.

b)            The Service Provider may sell, reproduce, modify or otherwise dispose of any wholly or partially completed Deliverables as the Service Provider deems appropriate.

12.          WARRANTIES AND INDEMNITIES

12.1        The parties warrant that they have full power, capacity and authority to enter into and perform their obligations under the Agreement.

12.2        The nature of certain Services means that the Service Provider is unable to guarantee particular results, and any examples of Services provided to or created for other clients is a representation of potential results only.

12.3        The Client acknowledges that the Service Provider cannot be held responsible for any negative impact on the Services as a result of inaccuracies in information provided to the Service Provider by the Client, nor the cost of rectifying such inaccuracies.

12.4        The Service Provider is not liable for any errors or omissions in Deliverables after it has been approved by the Client.

12.5        The Service Provider is not responsible for any unforeseen advances in technology that may negatively impact on the Services they provide.

12.6        The parties agree that:

a)            except as set out in this Agreement, the Services are provided on an “as is” basis without representation, warranty or condition of any kind (either express or implied);

b)            all express or implied warranties, representations, statements, terms and conditions relating to the Agreement or its subject matter which are not contained in the Agreement, are excluded from the Agreement to the maximum extent permitted by law; 

c)             nothing in the Agreement excludes, restricts or modifies any condition, warranty, right or remedy implied by or imposed by any law (including statute or regulation) which cannot be lawfully excluded, restricted or modified;

d)            if any condition or warranty is implied into the Agreement and cannot be excluded and the Service Provider is able to limit the Client’s remedy for breach of such a condition or warranty, then the Service Provider’s liability is limited:

i.       in the case of goods, to the replacing of the goods or of acquiring equivalent goods or payment of the cost of having the goods repaired;

ii.     in the case of services, to supplying the services again or the payment of the cost of having the services supplied again. 

12.7        Each party agrees to indemnify and hold harmless the other party, their respective affiliates, officers, directors, agents, and employees from and against any and all claims, damages, liabilities, costs, and expenses, including reasonable attorneys' fees, arising out of or relating to any breach of this Agreement, due to negligent acts or omissions, wilful misconduct, by either party or their respective affiliates, officers, directors, agents, or employees.

12.8        The parties agree that:

a)            neither party will be responsible, liable or held in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent that the failure is directly caused by the other party failing to comply with its obligations under the Agreement or negligence or misconduct of the other party or its employees, agents, guests, personnel or contractors; 

b)            each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done by the other party under or in connection with the Agreement; and

c)             in no event will either party be liable to the other party for any Consequential Loss.

12.9        The Client acknowledges and agree that the Client are providing the Service Provider access to the Client’s online accounts, including passwords and permissions, at the Client’s own risk. While the Service Provider will take reasonable measures to ensure the security of the Client’s accounts, the Client understands that there are inherent risks associated with sharing access and information. 

12.10      The Service Provider strongly recommends that the Client maintain strong security practices for the Client’s accounts, including regularly updating passwords, enabling two-factor authentication, and promptly reporting any suspicious activity. The Client also acknowledge that the Service Provider is not responsible for any loss incurred from security breaches, and that any loss resulting from such breaches is not in any way the Service Provider fault.

12.11      The Service Provider will use appropriately secure protections and protocols, however given the nature of electronic communication and data storage, the Service Provider cannot be held responsible for third party interception, virus transmission, or issues with cloud-based storage facilities, including loss of data.

12.12     The information the Service provider provides through their services does not constitute professional business, financial or legal advice, regardless of whether they are licensed professionals of any type. The Service Provider cannot be held liable for any action taken by the Client in reliance on the information provided. The Client agrees to consult with the relevant licensed professional/s prior to taking any action.

12.13     Clause 13.1's limitation of liability shall not be applicable in instances where the Client utilises the Final Product beyond the scope of the Agreed Purpose, necessitating additional payment to the Service Provider for such usage.

12.14     This clause survives expiry or termination of this Agreement.

13.          LIMITATION OF LIABILITY

13.1        Subject to clause 12.13, the liability of each party to the other party (including under indemnity) is mutually capped to the total amount of all Fees paid in connection with the Services provided under the Agreement in the 12 months preceding the liability event and will be reduced to the extent that the other party's acts or omissions contribute to or cause the liability.

13.2        This clause survives expiry or termination of this Agreement.

14.          CONFIDENTIALITY AND PRIVACY

14.1        Each party agrees that, unless it has the prior written consent of the other party, it will:

a)            keep the Confidential Information of the other party confidential at all times;

b)            ensure that any person to whom Confidential Information is disclosed is aware of and complies with this clause; and

c)             where there is prior consent, inform the other party of any proposed disclosure, including the form of disclosure, within a reasonable timeframe.

14.2        These obligations of confidentiality do not apply to any disclosure that:

a)            is for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;

b)            is required by Applicable Law; or

c)             relates to Confidential Information that is publicly available through no fault of the receiving party or was rightfully received from a third party without restriction and without the breach of any obligation of confidence.

14.3        Any Confidential Information supplied to the Service Provider that incorporates personal information will be dealt with in accordance with the Service Provider’s Privacy Policy, which is available on their website. 

14.4        This clause survives termination or expiry of this Agreement.

15.          MARKETING AND PROMOTION

15.1        Recognition

The parties agree that unless otherwise expressly agreed in the Proposal, the Service Provider will retain the right to reproduce, publish and display their involvement in the Services together with reference to the Client (including Client’s name, business name, logo and any trade marks) in portfolios, on websites, and in galleries, art periodicals and other media (including social media) or exhibits for the sole purpose of recognition of Services provided.

15.2        Testimonials 

The Client consents to the use of any testimonials, reviews, or feedback provided to the Service Provider for promotional and marketing purposes. The Client understands that these testimonials may be published on the Service Provider's website, social media platforms, marketing materials, and other promotional channels.

15.3        Right to Withdraw Consent 

The Client has the right to withdraw their consent at any time. To do so, the Client must notify the Service Provider in writing, and the Service Provider will promptly cease the use of such materials for promotional purposes.

16.          MISCELLANEOUS

16.1        Relationship of Parties

The Service Provider are independent contractors and the relationship between the Client and the Service Provider does not constitute that of a partnership, joint venture, agency or employer and employee. Nothing in this Agreement gives either party the authority to bind the other in any way, nor impose any fiduciary duties on the other party.

16.2        Exclusivity

The parties agree that this agreement does not establish an exclusive relationship between the Service Provider and the Client. The Service Provider is free to provide their services to other clients and engage in similar projects, including those that may be in direct competition with the Client's business. The Client acknowledges and agrees that the Service Provider may work with other clients.

16.3        Non-Disparagement

Without limiting either party’s rights, each party agrees not to disparage the other or provide negative feedback in a public forum (such as social media or an online review platform) at any time during or following the Term. Where one party is dissatisfied, the issue must be dealt with in accordance with the provision of this Agreement relating to disputes.

In the event that either party breaches this provision by engaging in disparagement or posting negative feedback in a public forum, the non-breaching party has two options:

a)            The non-breaching party may initiate the dispute resolution process as outlined in clause 16.5 of this Agreement to resolve the matter amicably.

b)            The non-breaching party may pursue legal action to seek remedies, including injunctive relief and damages, as allowed by applicable laws.

The choice between these options will be at the sole discretion of the non-breaching party.

16.4        Conflict of Interest

Each party warrants that they are free to enter into this Agreement and that it shall not violate the terms of any other agreement between that the party and a third party.

16.5        Disputes

a)            In the event of any dispute arising under or in connection with this Agreement during the Term, the parties shall first seek to resolve the matter amicably through direct negotiation. Both parties agree to engage in good faith efforts to settle any dispute promptly. If the dispute cannot be resolved within thirty (30) days following the date of a written notice of dispute, either party may propose to enter into alternative dispute resolution (ADR).

b)            ADR may include mediation or arbitration conducted by a neutral and recognised entity, pursuant to its rules and procedures. The parties shall mutually agree upon the choice of ADR method and the governing rules. Any decision or award resulting from such ADR shall be final and binding and may be entered as a judgment in any court of competent jurisdiction.

c)             Each party shall bear its own costs in connection with the ADR process, and the parties shall equally share the fees and expenses of the mediator or arbitrator unless otherwise agreed by the parties or as directed by the arbitrator or mediator according to applicable rules.

d)            Except where urgent interim relief is sought from a court, neither party may initiate formal legal proceedings until the ADR process has been concluded.

16.6        Notices

Where a party gives notice, it must be done in writing to the email address specified in the Proposal, the notice will be considered delivered on the date it was sent, unless a delivery failure notice was received.

16.7        Entire Agreement

This Agreement constitutes the Service Provider entire agreement with the Client about the subject matter. It supersedes all previous agreements, understandings and negotiations, whether written or verbal.

16.8        Governing Law

The formation, construction, performance and enforcement of the Terms will be in accordance with the laws in force where the Service Provider resides. The Client and The Service Provider submit to the non-exclusive jurisdiction of the courts of that jurisdiction.

16.9        Execution and Counterparts

The Agreement will become binding when any one or more counterparts individually or taken together, are signed by the parties. The Agreement may be executed by way of electronic signature, including by clicking “I consent”, payment of an initial deposit, or similar. If the Agreement is executed in this way, it will be considered an original that has been properly executed.

16.10     Amendment or Variation

The Service Provider reserves the right to amend or vary the Agreement and the Service Provider will notify the Client of the changes.  The Client can choose to terminate if they do not accept the amendments and/or variations.  If the Client continues to engage the services, the Client is deemed to have accepted the amendments and/or variations to these Terms.

16.11     Validity

If any provision of the Agreement is held invalid or unenforceable, it will either be severed from the Agreement or replaced by a valid or enforceable provision. If applicable, any new provision will take effect immediately. All other provisions will remain in effect throughout.

16.12     Assignment

The Client is not permitted to assign the Agreement or otherwise deal with any rights under it without the Service Provider prior written consent. Conversely, the Service Provider may do so without the Client’s consent.

16.13     Interpretation

All headings are for ease of reference and do not affect the interpretation of the Agreement. Words in the singular include the plural and vice versa, and references to “including” and similar words do not imply any limit.  

DEFINITIONS

In the Agreement, the following terms have the stated meaning unless a contrary intention appears.

Term Definition

Administration Fee means the fee that may apply for Administrative Services as set out in the Proposal.

Agreed Purpose means the purpose set out in the Proposal for which the Service Provider is performing the Services, and the Client are entitled to use the Deliverables.

Agreement means these Terms and Conditions, the Proposal and each subsequent Proposal

Applicable Law means any applicable statute, regulation, by-law, ordinance, policy or subordinate legislation in force from time to time that may apply to the Services or either party’s obligations under the Agreement.

Assigned IP  means the intellectual property assigned by the Service Provider as set out in the Proposal.

Business Day means a day other than a Saturday, Sunday or public holiday in the city of The Service Provider address in the Proposal.

Business Hours means 9am to 5pm on any Business Day.

Cancellation Fee Means the fee that may apply for cancellation of the Services as set out in the Proposal.

Client means the party set out in the Proposal.

Client Information means the information provided by the Client to the Service Provider and as set out in the Proposal.

Commencement Date  means the date specified in the Proposal.

Confidential Information means information of a confidential nature including information about a party’s business, operations, strategy, administration, technology, affairs, clients, customers, employees, contractors or suppliers and includes the terms of the Agreement but does not include any information in the public domain other than through a breach of confidence.

Consequential Loss means any liability in relation to incidental, indirect, consequential, punitive or special damages (including but not limited to damages to business reputation, lost business, or lost profits) arising out of or in connection with the Agreement.

Deliverables  means the deliverables set out in the Proposal.

Deposit means the initial payment as set out in the Proposal, that secures provision of the Services in accordance with the Key Dates. 

Employees means, in respect of a party, any of its employees, consultants, suppliers, subcontractors, agents or advisors.

Fees means the amounts payable by the Client to the Service Provider as set out in the Proposal.

Final Product means the product set out in the Proposal.

Force Majeure means illness, injury, emergency, pandemic, epidemic, war, act of God, sudden event or other circumstance beyond the Service Provider control.

GST  means goods and services tax chargeable under A New Tax System (Goods & Services Tax) Act 1999 Cth.

Intellectual Property Rights means all current and future registered and unregistered rights associated with patents, copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, inventions (including patents), domain names, discoveries, data, databases, business strategies, digital products, templates, and all other rights resulting from intellectual activity. These rights apply to any person who is the original creator, whether the creation occurred before or after the Commencement Date, and regardless of the country in which it was created. The creation may be connected with the individual or may be independently or jointly conceived and produced by them in the course of their engagement under the Agreement.

Interest Rate means the annual interest rate that applies to unpaid Fees as set out in the Proposal.

Key Dates means the dates set out in the Proposal.

Moral Rights means the moral rights granted under the Copyright Act 1968 (Cth) including the right of attribution of authorship, the right not to have authorship falsely attributed and the right of integrity of authorship and any similar rights existing under foreign laws.

Payment Dates means the scheduled dates payments will become due for any Fees as set out in the Proposal.

Proposal means the Proposal that forms part of the Agreement alongside the T&Cs, and any Subsequent Proposal between the parties in relation to the Services. The Proposal and Subsequent Proposal may be details provided in a word document, email or other written communication between the Client and the Service Provider.

Retained IP means the intellectual property retained by the Service Provider as set out in the Proposal.

Service Provider means the party set out in the Proposal.

Services means the services as set out in the Proposal.

T&Cs  means these General Terms and Conditions.

Tax Invoice has the meaning as set out in A New Tax System (Goods & Services Tax) Act 1999 Cth.

Term means the term of the Agreement starting on the Commencement Date and ending on completion of the Services or as otherwise specified in the Proposal or unless terminated prior.

Third Party Materials means all materials, including any documents, designs, photography and information of a Third Party.