Standard Terms & Conditions
1. DEFINITIONS AND INTERPRETATION
Acceptance or Accepted has the meaning given to it under Clause 4(b);
Client Content means elements of any and all materials, information, photography, text, graphics, photos, designs, trademarks, or other artwork furnished
by you to Additive for use in the preparation of and/or incorporation in the Services and Deliverables;
Creative Agents has the meaning given to it under Clause 2.1(c);
Deliverables means the final and finished work product specified in Item 6 of the Term Sheet of this Agreement to be delivered by Additive to the Client;
Delivery Date means the date(s) the Services and/or Deliverables are provided and/or delivered to the Client in accordance with the Production Schedule and as specified in Item 6 of the Term Sheet, or as otherwise mutually agreed by Additive and the Client in writing;
Disbursements means any approved out of pocket expense incurred by Additive in the course of performing the obligations under this Agreement, including but not limited to travel expenses, postage, shipping, models, presentation materials, photocopies, equipment rental, photographer’s costs and fees, photography licences, font licences, artwork licenses, prototype production costs, talent fees, music licenses, software licenses, online access, “software as a service”, hosting fees, and any Third Party Components (as defined herein) fee;
Force Majeure means where the performance of either party’s obligations hereunder is delayed or becomes impossible of performance for any reason beyond its reasonable control (including but not limited to war, invasion, act of foreign enemy, hostilities whether war be declared or not, civil war or strife, rebellion, strikes, lock-outs or other industrial disputes or act of God);
Intellectual Property means all products, results and proceeds of works made, created and/or developed including, but not limited to, artwork, graphic design work, web site design, flow charts, algorithms, look and feel, applications, software, sound recordings, cinematograph films, photographs, product design, literary work, manufacturing process, business method or other invention or work of creative authorship, including without limitation all copyrights, trademarks, service marks, trade dress, trade secrets, moral rights, contractual rights of non-disclosure, design and patent rights or other proprietary rights throughout the world;
Modification has the meaning given to it under Clause 5.1;
Overdue Amount means an amount (or part thereof) which has been outstanding for more than 30 days from the issue of a valid tax invoice;
Production Schedule means the schedule setting out the timeline for the performance of the Services and delivery of the Deliverables, as set out in Schedule B of this Agreement;
Related Bodies Corporate has the meaning assigned to it in the Corporations Act 2001;
Services means those services as specified in Item 6 of the Term Sheet of this Agreement to be provided by Additive to the Client; Term has the meaning given to it under Clause 6.1;
Third Party Components include external and third party tools, software, services, works and materials for which intellectual property ownership may vest with other parties including but not limited to stock or commissioned photography, film, music, font type, or illustration, and any other third party work, which may be (but is not limited to) a work of an artistic, literary or dramatic nature;
In this Agreement, unless otherwise indicated by the context:
words importing the singular include the plural and vice versa;
headings are for convenience only and do not affect interpretation of this Agreement;
a reference to a statute, statutory provision or regulation includes all amendments, consolidations or replacements thereof;
a reference to dollars, fees, payments and currency shall be in the currency stated on this Agreement, and where no currency has been expressly stipulated, it shall be in Australian dollars; and
a covenant or agreement on the part of or for the benefit of two or more persons binds or benefits them jointly and severally.
2. PROVISION OF SERVICES
Services and Deliverables
In consideration of payment of the Fees, Additive will deliver the Services and Deliverables in accordance with this Agreement.
Additive will deliver the Services and Deliverables by well-trained and well-qualified personnel on a professional basis, consistent with the best practices in the creative industry and in a diligent, workmanlike manner.
Additive may hire third party designers, creatives or service providers as independent contractors (Creative Agents) in connection with the provision of the Services and Deliverables. Additive shall be responsible for Creative Agents’ compliance with this Agreement.
Additive will not be required to deliver any Services and Deliverables not expressly described in this Agreement.
Additive will use its best endeavours to adhere to the Production Schedule.
You understand and agree that Additive is not responsible if the Production Schedule is or is required to be extended for reasons beyond Additive’s control, including but not limited to a Force Majeure event or if you fail to provide instruction, information, Acceptance, Client Content etc in a timely manner or as reasonably requested by Additive.
If the Production Schedule is or is required to be extended or suspended for any reason (including for any reason outlined in Clause 2.2(b)), you agree that Additive may follow the Modification process to take into account the additional timeframe and resources required.
In the event that the Production Schedule is or is required to be suspended or extended at no fault of Additive, you acknowledge that Additive’s availability may be affected which may result in further delays in Additive’s ability to deliver the Services and Deliverables.
Additive will use reasonable endeavours to inform the Client any likely extension of the Production Schedule in a timely manner.
2. CLIENT RESPONSIBILITIES
provide clear instructions to Additive for the Services and Deliverables;
provide finished and proofread Client Content in a form suitable for reproduction or incorporation into the Services and Deliverables prior to the commencement of the Services by Additive, and you hereby warrant that all Client Content shall be correct and accurate and where applicable warrant that you shall have obtained all necessary approvals, clearances, consents and assignments in such Client Content to enable Additive to use the Client Content in connection with the Services and Deliverables;
proofread Services and Deliverables;
ensure timely, safe and appropriate access is available to Additive at all relevant times during the Term to enable Additive to fully and properly perform the Services and provide and install (as applicable) the Deliverables at the site where such Services and Deliverables are to be performed;
provide proper and adequate facilities to enable Additive to deliver the Services and Deliverables.
You shall nominate no more than one (1) creative contact as the key decision maker and point person to provide directions and instructions to Additive.
You warrant and unconditionally guarantee that all Client Content provided by you to Additive is owned and/or controlled by you, or that you have full right and authority from the rightful owner to use such elements.
You agree that you are responsible for obtaining all necessary assignments of copyright and other Intellectual Property rights and all clearances, consents and licences in respect to any Third Party Components and you shall be responsible for complying with the licence terms and conditions and payment of associated licence fees for any Third Party Components embodied in the Services and Deliverables.
At various stages throughout the Term of this Agreement, Additive will ask you to confirm your acceptance of any aspect of the Services and Deliverables (Acceptance Request). Acceptance is important as it will be relied on by Additive in the course of fulfilling its obligations under this Agreement.
Acceptance will occur upon the earlier of:
you providing written notice of acceptance to Additive; or
two (2) days after Additive issuing you with an Acceptance Request; or
the date the Services and Deliverables are launched, reproduced, communicated to the public, or otherwise used or exploited by you.
If you do not wish to give Acceptance in relation to a Deliverable:
Additive understands that sometimes the Project scope and/or Services and Deliverables will need to be modified, changed or updated (Modification). You acknowledge and agree that any Modification may impact the Fees and/or Production Schedule. The parties will agree in good faith, taking into account the impact to the Fees and/or Production Schedule, as to whether to proceed or not with such Modification.
Save as provided for in clause 5.1, you shall not, during the Term or at any time thereafter change, revise, amend or alter any of the Deliverables without the express prior written consent of Additive.
The Term of this Agreement shall commence on the Commencement Date and shall continue until the Delivery Date, unless terminated in accordance with Clause 10.
6. FEE AND PAYMENT TERMS
You agree to pay Additive the Fees and Disbursements in accordance with this Agreement.
If any payment is not received in accordance with this Agreement, Additive may:
charge simple interest on any Overdue Amount, at the rate of seven percent (7%) per annum; and
exercise a lien against any of the Services and Deliverables; and
suspend working on the Services and Deliverables until such time that all outstanding payments are paid.
7. TRAVEL EXPENSES
Where you expressly require Additive’s employees, Creative Agents, and/or representatives to attend a location further than 50 kilometres from Additive’s normal business premises (Travellers), you agree to pay all of Additive’s reasonable travel and accommodation expenses, together with any reasonable per diems, for each Traveller as follows:
single room accommodation in a modern hotel or serviced apartment with private facilities and of a minimum 4 star or equivalent;
for any flight less than four (4) hours – economy class seating;
for any flight of more than four (4) hours but less than eight (8) hours – premium economy class seating;
for any flight of more than eight (8) hours – business class seating;
ground transportation costs; and
per diems of AUD$75 (seventy five Australian Dollars) or equivalent in local currency for each day a Traveller is deemed a Traveller (ie further than 50 kilometres from Additive’s normal business premises),
or as otherwise agreed and as set out in the Production Schedule.
1. INTELLECTUAL PROPERTY
Subject to Clause 3 herein, Additive represents and warrants that as at the Delivery Date and to the best of Additive’s knowledge and belief, the Services and Deliverables do/does not infringe upon the Intellectual Property rights of any third party, however, Additive will not conduct nor be required to conduct any type of Intellectual Property clearance search (for example, copyright, trademark, patent or design patent clearance search) to verify the same.
You agree that all Intellectual Property made, created and/or developed by Additive in connection to this Agreement or arising as a result of or in connection with the provision of the Services and the Deliverables will from their creation vest solely and exclusively in Additive (Additive Intellectual Property) and that:
the licence in or to any Additive Intellectual Property embodied in the Services and Deliverables shall only be granted in accordance with the terms of this Agreement and upon payment of the Fees; and
the assignment in or to any Additive Intellectual Property embodied in the Services and Deliverables shall only be granted in accordance with the terms of this Agreement and upon payment of the Fees.
Accordingly you shall not have the right to assign, sell, license or use directly or indirectly any of Additive’s Intellectual Property or work created pursuant to the Agreement or otherwise, whether for use in any media, the internet, merchandising or any other use whatsoever, save for promotional purposes of up to five minutes’ duration, without the prior written consent of Additive.
For the avoidance of doubt, Additive reserves the rights in and to all Additive Intellectual Property that is not incorporated into a Deliverable.
Additive may, upon first launch of the Project reproduce, publish, perform and communicate to the public, the Services and Deliverables and Additive’s role in the Project, Additive’s portfolios and websites, in galleries and other exhibits, and in design periodicals, blogs, columns, and awards, for the purposes of professional recognition.
2. ADDITIVE PROPERTY & SECURITY
Title to any equipment or other property provided by Additive for use by you in connection with the Services and Deliverables under this Agreement (Additive Property) shall at all times remain with Additive. You must not sell or part with possession or otherwise dispose of or deal with the Additive Property. You must keep the Additive Property free of any encumbrances, separate from other goods and marked so as to clearly indicate that the Additive Property belongs to Additive and in clean and good condition. You possess the Additive Property as bailee only, and must account to Additive as fiduciary in relation to the Additive Property. You shall ensure that all equipment provided by Additive in the course of carrying out the Services and delivering the Deliverables is protected at all times from theft, misuse, damage or destruction by any person whilst such equipment is on the designated worksite (as applicable). From the time of receipt by you of any Additive Property and for the duration such Additive Property is in your possession, you are fully responsible for any shortage, loss or damage to the Additive Property (whether as a result of the fault or negligence or otherwise of you and/or any third party). You must, from the time of receipt by you of any Additive Property and for the duration such Additive Property is in your possession:
provide adequate security for the Additive Property;
not remove or relocate the Additive Property other than in accordance with the provision of the Services hereunder without Additive’s prior written consent;
maintain and return the Additive Property in the same condition it was in when you took delivery of the Additive Property subject to any fair wear and tear as determined by Additive;
only use the Additive Property for the purposes for which the Additive Property was provided to you;
permit the use of the Additive Property only by properly qualified and (if applicable) licensed persons, unless otherwise agreed in writing by Additive;
not affix the Additive Property or any part of the Additive Property to any building or other property;
insure the Additive Property for its full new for old replacement value against theft, loss or damage with a reputable insurer and must, upon request, provide the Additive with a certificate of currency in respect of such insurance policy.
You must pay to Additive within seven (7) days of any such demand by Additive:
the cost of repairing any Additive Property; or
the new for old replacement cost of any Additive Property that is lost or stolen or determined by Additive to be irreparably damaged.
3. CREDIT & BILLING
You will use all reasonable endeavours to procure a credit or acknowledgement to Additive in any and all physical and electronic advertising and other means of promoting the Project on those terms as mutually agreed between you and Additive. Save where otherwise agreed, you shall have the non-exclusive right to use any approved biographical material and approved Additive logos and photographs for the purpose of procuring such credit or acknowledgement as aforesaid.
4. TERMINATION AND EFFECT OF TERMINATION
If either party fails to fulfil its material obligations under this Agreement to the reasonable satisfaction of the other party and such default is not rectified within seven (7) days after written notice of the breach or default is received by the defaulting party, the aggrieved party may (in addition to all of its other rights and remedies at law or otherwise) terminate the Term of this Agreement on giving written notice to the defaulting party.
Either party may immediately terminate this Agreement, if the other party either enters into voluntary or compulsory administration, liquidation, receivership or bankruptcy or admits in writing its inability to meet its debts or other obligations as they become due.
Effect of Termination
In the event of termination:
you shall immediately pay to Additive all Fees and Disbursements incurred as of the date of termination; and
Subject to Clause 11.2(a)(i), Additive shall licence and/or assign (as applicable) to you the relevant Intellectual Property in the Services and Deliverables as at the date of termination, in accordance with Clause 9 herein.
You undertake and warrant that:
to the extent that the provision of the Services and Deliverables by Additive involves the use of materials or equipment provided by you (and including any Third Party Components) and compliance with your instructions, the provision of the Services and Deliverables by Additive will not invade or infringe the privacy of any person; be defamatory towards any person; breach any local, national or international law, statute or regulation; or infringe the copyright or any other Intellectual Property rights or personal rights of any person;
you will provide a safe working environment for Additive and any Travellers and will comply with all applicable occupational health and safety legislation as applicable;
you will not during the Term without Additive’s prior written consent directly or indirectly:
solicit or in any way seek to procure any customers of Additive; or
offer employment or other business-related engagement to any employees of Additive.
6. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
The Deliverables, including without limitation, all materials and fittings incorporated in the Deliverables are (except as expressly stated by Additive) provided ‘as is’ and ‘as available’ for your use (where applicable), without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, and non-infringement.
Once you have indicated your Acceptance in relation to the Services and Deliverables, Additive makes no warranty that the Services and Deliverables will meet your requirements.
Additive assumes no liability or responsibility for any use, non-use, or misuse of the Deliverables (including without limitation all materials and fittings incorporated in the Deliverables) in any manner other than as contemplated by this Agreement.
Should the Deliverables be modified, altered, moved, or otherwise changed by any party other than Additive after the Deliverables have been delivered, fixed and/or installed by Additive, you acknowledge and agree that Additive shall not be liable to you or any third party, in any manner whatsoever in relation to any cost, expense, or damage directly or indirectly incurred in relation to the Deliverables.
To the maximum extent permitted by law, Additive excludes all representations, warranties or terms (whether express or implied) other than those expressly set out in this Agreement.
If any legislation operates to prohibit or restrict the exclusion, restriction or modification of any implied warranties, conditions or obligations, then to the maximum extent permitted by law, Additive limits its liability in respect of any such claim to, at its option:
in the case of services:
the supply of the services again; or
the payment of the cost of having the services supplied again.
in the case of goods:
the replacement of the goods or the supply of equivalent goods;
the repair of the goods;
the payment of the cost of repairing the goods, or replacing the goods or of acquiring equivalent goods.
You agree to fully indemnify and hold Additive, its subsidiaries, Related Bodies Corporate, directors, officers, employees, contractors, agents and licensors harmless from any loss, damage, proceeding and cost (including all reasonable legal costs), whether in contract, tort, under statute or otherwise, directly or indirectly as a result of your use or misuse or non-use of or in connection with the Services and Deliverables, your breach of any provision or warranty of this Agreement or your violation of any applicable law or the rights of any third party.
Each party undertakes to keep confidential and not disclose to any third party the terms of this Agreement or any information supplied by the other party under this Agreement which is identified by the supplier as confidential, or which by its nature or the manner in which it was provided is confidential (including without limitation any information concerning the performance or actions of Additive and other persons during the delivery of the Services and Deliverables), other than as may be required by any applicable law or to their professional advisers.
You must at all times maintain adequate policies of insurance as follows:
Professional indemnity insurance, except where you and your representatives are covered by Additive’s policy of insurance;
Workers compensation insurance to the extent required by law;
Public and product liability insurance, except where you and your representatives are covered by Additive’s policy of insurance; and
Any other policy required by Additive from time to time. Additive may direct you as to what is “adequate” for the purposes of this sub-clause.
You must provide certificates of currency in respect of the insurances required under clause 15.1 at any time upon request by Additive.
All Fees are exclusive of good and services tax (GST). Subject to Additive providing you with a tax invoice for the appropriate amount which complies with A New Tax System (Goods and Services) Act 1999, you agree to pay an additional amount of GST if and to the extent the Fee is considered a taxable supply for which Additive must account for GST.
If you are required by law to deduct withholding tax from any payment due hereunder to Additive, you shall be entitled to deduct such withholding tax from the Fees payable to Additive, provided that within thirty (30) days of payment by you to the relevant tax authority, you shall so advise Additive and shall provide Additive with an original receipt (or other documentation as necessary) evidencing payment of such withholding tax, and such assistance as Additive may reasonably require for Additive to claim a tax credit for such amount. The parties shall cooperate in good faith and use reasonable efforts to minimise the withholding tax due and obtain benefits under applicable tax treaties without undue delay (including the submission by Additive of the relevant tax form to the relevant tax authority, as applicable).
The parties are independent entities and Additive is engaged by the Client as an independent contractor to provide the Services and Deliverables. Nothing in this Agreement constitutes or creates any relationship of employment, joint venture, trust or legal partnership between the parties nor makes either of them a partner, agent, employee or representative of the other and agree that the Services and Deliverables have not been made or created as a “work for hire” under any copyright law.
Each party warrants that it has the full right, power and authority to enter into this Agreement.
If any provision of this Agreement shall be held to be invalid in any way or unenforceable the remaining provisions shall not in any way be affected or impaired thereby and this Agreement shall be construed so as to most nearly give effect to the intent of the parties as it was originally executed.
Failure or omission by either party to enforce or require strict performance or timely compliance with any provision of this Agreement will not affect or impair that provision, or its rights thereto and shall not constitute a waiver of such rights or remedies and shall not relieve either party from compliance with such obligations.
This Agreement and any document expressly referred to in them represent the entire understanding and agreement between the parties and may only be amended in writing.
The Client shall not in any way assign or deal with interests under this agreement without Additive’s prior written consent. Additive may assign or sub contract the performance of its rights and obligations under this agreement on such terms as Additive deems appropriate.
Each Party must at its own expense do everything reasonably necessary to give full effect to this Agreement.
This Agreement may be executed in several counterparts, and transmitted via facsimile or digital scan, each of which will be deemed to be an original, all of which, when taken together, shall constitute one and the same instrument.
This Agreement shall be read and construed according to the laws of the State of Victoria, Australia and the parties submit to the jurisdiction of that State.