David Anthony Cook Pty Ltd Standard Terms of Engagement
These standard terms of engagement (the Agreement) between David Anthony Cook Pty Ltd (ABN 43 257 610 113) and (We, Us or Our) and You set out the terms and conditions on which You appoint Us to provide the Services.
1. Defined Terms
In this Agreement:
Client Contact means the person named as such in the Estimate or the person who gives Us a Task Request on Your behalf or, if no person is named, each of Our contacts at Your business;
Deliverables means the deliverables described in the Estimate or the Task Request.
Estimate means the oral estimate given to You or the document entitled ‘Estimate’ attached to this Agreement and each additional Estimate agreed between You and Us;
Fee means each fee specified in or calculated in accordance with the Estimate or the Rate Card;
Intellectual Property Rights includes trademarks, logos, brand names, patents, copyrights, processes, concepts, know how, designs, software codes and other like rights and any right to apply for registration of any of the foregoing;
Losses include all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever;
Rate Card means the rate card attached to this Agreement, as varied from time to time in accordance with this Agreement;
Party mean You or Us, as the case may be;
Project Work means Services described as such as in the applicable Estimate or Task Request;
Restraint Period means the period commencing on the date You accept the Estimate or We accept the Task Request and ending 6 months after the date of completion of the Services;
Services means the service of providing the Deliverables and/or, in the case of a Task Request, of performing the task(s);
Task Request means each oral or written description of a task You request Us to perform from time to time, as amended by agreement between You and Us (if applicable), being a task for which no Estimate is required by or given to You; and
You means the client who (or whose Client Contact) gives Us the Task Request or whose details are specified in the Estimate and ‘Your’ refers to that client.
2. Acceptance of Estimate or Task Request
2.1 You may accept the Estimate by signing and returning it to Us or by continuing to instruct Us in writing.
2.2 We may accept the Task Request orally or in writing or by performing the specified task(s).
3. Doing the Work
3.1 What We do
3.1.1 After You accept the Estimate or give Us a Task Request We will provide the Services to You in consideration for You paying the Fee, subject to the provisions of this Agreement. We may provide additional services at Your request which, once agreed, will be documented in the format of the Estimate or , if written, the Task Request (unless for a Fee of less than AU$1500) and become part of this Agreement.
3.1.2 We will take instructions from the Client Contact.
3.2. What You need to do
3.2.1 We rely on You and the information You provide for the timely and complete provision of the Services. You agree to co-operate with Us as reasonably requested and to provide the information and documentation that We reasonably require. You must also perform any functions assigned to You in the Estimate or in any communication from Us about the Task Request.
3.2.2 You also agree that, to the extent We require access to Your documentation, offices or technology, You will provide such access in a timely manner at no cost to Us.
3.2.3 We will rely on information provided by You in order to perform the Services and it is Your responsibility to provide updates if the information changes. Further, it is Your responsibility to proofread and check the information which You provide. You acknowledge that changes and corrections are not part of the Services and will incur additional fees to implement at the hourly rates stated in the Estimate or the Rate Card (as applicable).
3.3. Delivery
3.3.1 Unless otherwise stated, written or graphical Deliverables will be provided in digital format.
3.3.2 Our working files (including, without limitation, designs, images, photographs, fonts and draft source files) are not provided to You and are not included in the Deliverables.
3.4. Unexpected Delays
Timeframes for the performance of the Services are good faith estimates only. You acknowledge that some circumstances are outside Our control and, while We will use all reasonable efforts to complete the Services on time, You will excuse reasonable delays including, without limitation, for illness, injury, fire, theft, computer failure, pandemic, war, government directive, absence of personnel, unavailability of supplies and acts of God.
4. Sub-contracting
We are permitted to use other persons to provide some or all of the Services. We will be responsible for the work of any sub-contractors subject to the terms of this Agreement.
5. Fees, expenses and invoicing
5.1 You will pay the Fees within 7 days of issue of a correctly rendered invoice.
5.2 Our Fees are subject to GST. Unless otherwise specified in the Estimate or, in case of a Task Request, in the Rate Card, the amounts estimated and rates specified under these terms are exclusive of GST and We will be entitled to add on GST.
5.3 In addition to the Fees, You must pay any out of pocket expenses We incur or pay on Your behalf in performing the Services (including without limitation travel, accommodation, stock images, fonts, photocopying, printing, courier services and postage) within 7 days of issuance of a correctly rendered invoice.
5.4 Other than in relation to Fees which are fixed, We may vary Our Fees (for example, time and materials rates) and/or the Rate Card during the term of this Agreement by providing You 7 days’ prior notice.
5.5 We may charge interest on any outstanding amount at the rate of 2% per year above the business overdraft index rate of Commonwealth Bank of Australia, accruing daily.
5.6 Except in the case of Project Work, We will invoice You upon completion of each task or day specified in an Estimate or a Task Request.
5.7 In the case of Project Work, We will invoice You as follows:
5.7.1 50% of Our estimated Fee at least 7 days before We commence work, payable before We commence work;
5.7.2 25% of Our estimated Fee on initial (pre-revision) delivery of the Deliverables;
5.7.3 the balance of Our Fee (including Our Fee for revisions requested by You) on completion of the Deliverables, payable before ‘go live’ or handover of the Deliverables.
6. Intellectual Property
6.1 Originality
6.1.1 The Deliverables will be created by Us for You.
6.1.2 We make no representation or warranty in relation to non-infringement of third party rights. It is Your responsibility to undertake necessary searches and enquiries to ensure no infringement of third party rights prior to use of the Deliverables.
6.2 Ownership
6.2.1 Subject to the paragraph below, We own the copyright and other intellectual property rights in Deliverables that We create for You. We grant to You a limited licence to use the Deliverables in Your own business, but not to exploit the Deliverables for commercial advantage (for example, by reselling the Deliverables to others). This licence is not exclusive, not transferable and is granted in return for You agreeing to pay Our Fees.
6.2.2 You acknowledge that the Deliverables may include third party works (such as stock images, stock photography, third party website templates, etc) which are subject to additional terms imposed by third party providers. We will use reasonable efforts to ensure that such third party terms are broadly consistent with and do not materially limit Your use of the work described above. If such terms are inconsistent, We will provide to You a copy of such terms together with the Deliverables.
6.3 Modification, revision or refresh
You agree that any modification, revision or refresh of the Deliverables will be performed by Us and not by anyone else.
7. Publicity
On completion of the Services, We may include the Deliverables and a description of Our work for You in Our portfolio of completed work, which may also be available online at Our website and/or used by Us in printed publications.
8. Rescheduling/Cancellation
If You request Us to reschedule to a later date, or You cancel, supply of the Deliverables, You must immediately pay Us the greater of:
8.1.1 50% of the estimated total Fee in the Estimate; or
8.1.2 Our Fee for that proportion of the work required to produce the Deliverables that We have completed;
Plus all expenses that We have incurred which are payable by You, less whatever sums You have paid Us, before We receive Your rescheduling request or cancellation.
9. Termination
You or We may terminate and or change this Agreement at any time by providing 30 days’ prior written notice to Us or You, as the case may be. All Fees and expenses incurred prior to termination are then immediately due and payable by You. To avoid doubt, if You terminate this Agreement, it will be regarded as cancellation for the purpose of the previous clause.
10. Liability
10.1 We will use reasonable care and skill in performing the Services to the standard generally accepted within the industry in which We operate. We make no representation or warranty, express or implied, and We exclude all terms and warranties which might otherwise be implied by any legislation, the common law, equity, trade, custom or usage to the maximum extent permitted by law, in connection with the Services and Deliverables. We do not represent or warrant that any Deliverable will improve or not adversely affect Your ranking in any internet search engine results.
10.2 If We fail to provide the Services to the standard in sub-clause 10.1 or, to the extent that terms or warranties are implied which are not lawfully excluded under sub-clause 10.1, Your sole remedy in relation to such failure, term or warranty will be Our performance of the relevant Services again or the payment of the cost of having the Services supplied again, provided We receive Your claim under this clause within 6 weeks after delivery of the relevant Deliverable.
10.3 Subject to sub-clause 10.2, We shall not be liable to You in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, cost or expense of any nature whatsoever incurred or suffered by You of a direct, indirect or consequential nature, including in connection with infringement of third party rights or intellectual property rights or any economic loss or other loss of turnover, profits, business or goodwill.
10.4 You shall indemnify Us and hold Us harmless from and against all demands, claims, proceedings, penalties, fines and liability, whether criminal or civil, in contract, tort (including negligence) or otherwise, and losses arising from any loss, damage, liability, injury to Us, Our employees and third parties, infringement of third party intellectual property rights, or third party losses by reason of or in connection with any information supplied to You by Us, Our employees or consultants, or supplied by Us to You within or without the scope of this Agreement.
10.5 The obligations under this clause 10 of this Agreement survive its termination.
11. No Partnership or Employment Relationship
Nothing in this Agreement constitutes the relationship of partners or of employer and employee between the You and Us or between You and Our employees or consultants. It is the express intention of You and Us that any such relationships are denied.
12. Employees and contractors
12.1 During the Restraint Period, neither Party will solicit for employment or as a contractor, either directly or indirectly, any person who is employed or contracted by the other Party.
12.2 A Party shall promptly advise the other Party if a person who is employed or contracted by the other Party seeks to be employed or contracted by the first-mentioned Party prior to the expiry of the Restraint Period.
13. Disputes
13.1 Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity of this Agreement which cannot be settled by negotiation between the parties or their representatives will be submitted to the Australian Disputes Centre (‘ADC’) for mediation, the matter to be conducted and held in accordance with the Rules of the ADC. During such mediation both parties may be legally represented.
13.2 Prior to a matter being referred to mediation pursuant to clause 13.1, the Parties will:
13.2.1 Formally refer the dispute, controversy or claim to their respective contract managers for consideration; and
13.2.2 If the respective contract mangers are unable to resolve the dispute, controversy or claim after five (5) Business Days (or such other period as agreed between the parties) from the date of referral, then the dispute, controversy or claim will be referred to the chief executive officers of each Party.
13.3 Nothing in this clause will prevent a Party from seeking urgent equitable relief before an appropriate court.
13.4 Any express statement of a right of a Party under these terms is without prejudice to any other right of that Party expressly stated in these terms or arising under law.
14. General
14.1 This Agreement may only be amended in writing signed by or on behalf of
both You and Us.
14.2 This Agreement contains the whole agreement between You and Us in respect of the subject matter of the Agreement and supersedes and replaces any prior written or oral agreements, representations or understandings between You and Us relating to such subject matter.
14.3 You confirm that You have not entered into this Agreement on the basis of any representation that is not expressly incorporated into this Agreement.
14.4 No failure or delay by Us in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same, nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
14.5 A notice or other communication connected with this Agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out or referred to in the Estimate or the Task Request, or sent by email to the email address of the Client Contact or of Our representative, as the case may be.
14.6 If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
14.7 The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
15. Applicable Law
These terms are governed by New South Wales law. All Parties consent to the non-exclusive jurisdiction of the courts of New South Wales with regard to any dispute arising under or out of them.