CLIENT TERMS OF AGREEMENT - Last updated 7 August 2014*
CLIENT TERMS OF AGREEMENT BETWEEN: The Creative Collective Group as trustee for The Creative Collective Unit Trust, T/A The Creative Collective (TCC/we/us/our); AND: The party named in The Estimate sent (Client/you/your).
1. PROVISION OF SERVICES
You have retained us to provide the services or training specified in the Estimate (the Services). This Client Terms of Agreement (Agreement) sets out the contractual arrangements between you and us in relation to the provision of the Services or Training.
Although provision is made for you to execute this document, execution is not necessary in order for this Agreement to be binding on the parties. This Agreement can be accepted by you and consequently become binding by virtue of any of the following (without limitation):
(a) electronically, via “click and accept” forms and online windows;
(b) giving further instructions to us and acting in a manner which would suggest that you agree to be bound by the terms of this Agreement.
Unless we notify you otherwise, the terms and conditions of this Agreement will also apply to any Additional Services.
2. CHARGES FOR SERVICES
In return for the provision of the Services you agree to pay:
- the fees specified on The Estimate;
- any expenses properly incurred by us; and
- any fees for Additional Services which we may invoice you for (Our Charges).
Before we commence providing you with the Services you must pay us the deposit specified on the invoice issued. Before commencing any Additional Services we may request the payment of further invoices/retainers and we may not commence provision of any Additional Services until such time as payment of the further retainer is made.
The balance of Our Charges and any other amounts payable by you will be invoiced to you at the frequency specified on The Invoice or on the cover letter supplied via the estimate or invoice.
All invoices issued by us will be inclusive of any GST but will not include any other taxes, duties or charges imposed or levied in Australia or overseas in connection with the supply of the Services and we will be entitled to invoice you, and you agree to indemnify us, should we become liable for any for such taxes, duties or charges
All invoices issued by us pursuant to this Agreement must be paid by you within 7 days of the date of the invoice (Payment Terms).
All payments of Our Charges or other sums payable to us under this Agreement must be paid to the bank account specified on The Invoice under 'Terms' or any other bank account we may nominate from time to time, using the payment method specified on The Invoice.
If you request a direct debit/credit card account, you give us authorisation to automatically debit your credit card for all of Our Charges immediately upon us issuing you with an invoice for those charges. By opting to pay via credit card you are giving your permission for your payment to be processed online via our secure gateway on PayPal, eWay or any other secure internet payment system.
Whilst we will use our best endeavours to ensure the security of any payment system that we use, we cannot guarantee that any system will never be breached and you agree to indemnify us and hold us free from liability for any adverse consequences that may arise out of a breach of the security of any payment system used.
In addition to Our Charges, you must pay all out of pocket expenses properly incurred by us on your behalf or in respect of our provision of the Services including (without limitation) travel and accommodation, image licence fees, software licence fees, courier and postage fees and printing expenses (Expenses). Where it is practical to do so, we will endeavour to obtain your consent before incurring any Expenses, however your liability is not contingent on us doing so.
4. CONSEQUENCES OF NON-PAYMENT
If you fail to make payment of any invoice issued by us within the Payment Terms we will be entitled to charge you interest on the outstanding amount with the interest payable calculated at 4% per month until the outstanding amount is paid in full (together with any interest).
If you fail to make any payment of Our Charges or any other fees payable to us under this Agreement or any other agreement between you and us by the due date for payment then, without prejudice to any other rights relating to that failure (including, without limitation any right of termination under clause 20), we will have the right to suspend the provision of the Services and any other services provided to you by us such as website hosting (whether such services are the subject of this Agreement or otherwise) until such time as the particular payment is made by you in full.
You acknowledge that we will not be liable for any Loss or Damage suffered by you as a result of us exercising our rights under this clause.
5. YOUR OBLIGATIONS
You warrant to us that:
(a) you own or are entitled to the Intellectual Property or other proprietary rights in all material, concepts, information, content or brands which you provide to us in relation to our provision of the Services or which you request we provide Services in respect of (the Background Material);
(b) the use and development of the Background Material by us will not infringe the Intellectual Property or other proprietary rights of any third party;
(c) the Background Material does not contain any information which is misleading, deceptive, defamatory or which contravenes any applicable statutory or legislative rules; and
(d) you will promptly respond to any requests made by us for additional documentation, information or assistance relevant to the delivery of the Services.
6. DELIVERY OF SERVICES
We will use reasonable endeavours to meet completion dates specified in any proposal or otherwise agreed (the Completion Dates), however you acknowledge that any Completion Dates are merely an estimate and we will not be held liable for any Loss or Damage suffered by you as a result of any failure to meet any Completion Dates and any reliance you have made on any estimated Completion Dates.
At any stage of the provision of the Services we may require your sign off and final approval for the relevant project details. You must not unreasonably withhold your sign off and final approval.
Any modifications or amendment requests made by you following sign off and final approval will result in additional fees and charges being payable by you. We will notify you of the amounts of these additional fees and charges following the modification request.
In some cases where a project has exceeded its specified parameters on the initial proposal signed off on, additional charges may be incurred and we will notify you of the details of these charges.
In regards to website builds, we allocate a three month delivery window. If after the three month period, you have not provided content or necessary approvals to complete the project, full payment will be required for the project. You will be notified prior to this being enforced.
7. DOMAIN NAME SERVICES
Where the Services include the provision of any domain name registration or hosting services:
(a) we provide no warranties or guarantees that domain names applied for are available for registration or are capable of being registered by you. Accordingly, you should take no action in respect of your requested domain name(s) until you have been notified that your requested domain name has been registered and that you have the right to obtain that name.
(b) both the registration of any domain names (Domain Names) and the ongoing use of the Domain Names by you may be subject to the relevant domain name authority's terms and conditions of use. You will be solely responsible for ensuring that you are aware of the terms and conditions and that you comply with the terms and conditions. You irrevocably waive any claims you may have against us in respect of the decision of a naming authority to refuse to register any domain name and, without limitation, agree that any administration charge paid by you to us for registration of a refused domain name is non-refundable.
(c) If we are not responsible for the initial registration of your Domain Names, you accept that it is your responsibility to ensure that your Domain Name licences are renewed. We will accept no responsibility or liability for the renewal of your Domain Names unless you expressly retain us to arrange for renewal.
(d) If we register your Domain Name and you request that we arrange for renewal of the Domain Name you must pay all renewal fees and expenses to us. Upon payment of such fees and expenses we will use reasonable efforts to arrange for the renewal of the Domain Name provided that you acknowledge that we will not be responsible for any Loss or Damage you suffer as a result of any failure by us to obtain renewal of any Domain Name.
(e) If you request that we undertake the renewal of a Domain Name on your behalf where the original registrar for the Domain Name is different to our domain name registrar of choice, the renewal of the Domain Name by us will be dependant on your agreement to transfer the domain to our preferred registrar.
(f) Requests for cancellation of a Domain Name registration may be accepted up to 24 hours after registration of the domain by our registrar. Fees may apply for cancellation of a registered domain.
(g) If you request that we record a change of ownership of a Domain Name, we will use reasonable efforts to arrange for the recording of the change of ownership provided that you acknowledge that fees may be payable for the transfer and the transfer may be subject to the rules of the relevant domain name registrar.
(h) We accept no responsibility in respect of the use of a Domain Name by you and any dispute between you and any other individual or organisation regarding a domain name must be resolved between the parties concerned and we will take no part in any such dispute. We reserve the right, on our becoming aware of such a dispute, at our sole discretion and without giving any reason, to either suspend or cancel the Domain Name, and/or to make appropriate representations to the relevant naming authority.
8. WEBSITE HOSTING/DOMAIN/EMAIL/SECURE WEBPAGE/VIRUS PROTECTION TERMS
If you retain us to provide any website hosting, email hosting, secure webpage, data hosting or virus protection services we specifically exclude any warranty as to the accuracy or quality of information received by any person via any Server operated or maintained by us (Server) and in no event will we be liable for any Loss or Damage to any data stored on the Server. You are responsible for maintaining insurance cover in respect of any Loss or Damage to data stored on the Server.
You warrant to us that any web site you request we host will only be used for lawful purposes. In particular, you warrant and undertake to us that:
(a) you will not, nor will you authorise or permit any other person to, use the Server in violation of this Agreement or any law or regulation;
(b) you will not knowingly or recklessly post, link to or transmit any material which:
(i) is unlawful, threatening, abusive, harmful, malicious, defamatory, violent or which encourages violence, obscene, pornographic, profane or otherwise objectionable in any way;
(ii) contains a virus or other malicious computer program;
(iii) could reasonably constitute or encourage a criminal offence, give rise to civil liability or that violates or infringes any trade mark, copyright, other intellectual property rights or similar rights of any person under the laws of any jurisdiction; and
(c) you will conform to the standards issued by us from time to time regrading your use of the Server and will not yourself, and will ensure that none of your end users, make excessive or wasteful use of the Server to our detriment or that of our other clients.
You are responsible for ensuring that all electronic mail sent by you using the Server or our other services complies with any relevant legislation, including but not limited to the Spam Act 2003 (Cth) and that such messages are sent in a secure manner. We will take all reasonable steps to ensure accurate and prompt routing of messages but we will not accept any liability for Loss or Damage suffered by you as a result of non-receipt or misrouting or any other failure of email.
In the event of deliberate transmission of unsolicited commercial electronic messages by you (whether utilising the Server or otherwise), we reserve the right to terminate all Services without prior notification. You warrant, undertake and agree that:
(a) any transactions within your web site which are contracts for the sale of goods or services will be between you as the merchant and your end-user as customer and you agree to include an exclusion of our liability into all agreements with your end users in such form as is appropriate to hold us harmless for any of your conduct or consequences of your conduct;
(b) the information contained within your web site will comply with all applicable laws, regulations and codes of practice governing the use of web sites and the sale of goods, including, without limitation, those laws and/or codes of practice governing distance selling and data protection which may be in force from time to time;
(c) you will keep secure any identification, password and other confidential information relating to your account and your web site and you will notify us immediately of any known or suspected:
(i) unauthorised use of your account;
(ii) breach of security; or,
(iii) loss, theft or unauthorised disclosure of your password information.
Notwithstanding such notification you will be liable for any and all uses of your account (and web site) notwithstanding any fraudulent or improper use of your password or any other access to any of the facilities we offer which is not unauthorised use or access by us.
(d) all website hosting will be paid in advance either monthly or annually. Annual website hosting receives a discount as nominated by The Creative Collective and as per the terms on the invoice;
Whilst we will use reasonable endeavours to ensure the integrity and security of the Server, we do not warrant or guarantee that:
- the Server will be free from unauthorised users or hackers;
- our virus protection services will stop every virus from reaching your computer network;
- that the service will be error free or free from interruption of failure,
and we expressly disclaims any express or implied warranty regarding system and/or service availability, accessibility, or performance.
We will use reasonable endeavours to provide the continuing availability of the Server for web hosting and the Services but we will not, in any event, be liable for any Loss or Damage suffered by you as a result of Service interruptions or down time of the Server.
You will be solely liable for any claims, suits, damages or any other disputes or actions which arise in connection with the information or content displayed on your web site. You will be solely responsible for the accuracy, truthfulness, appropriateness & decency of any content on your web site.
The Creative Collective’s web hosting suppliers of choice are subtledifference.com.au, TPPinternet.com.au, NetRegistry.com.au, squarespace.com and businesscatalyst.com (details can be found at their respective web sites). The Web Hosting service provided by The Creative Collective is bound by the terms and conditions of the respective providers listed above (which are subject to change) in addition to any conditions stated in this Agreement. The Creative Collective may need to change its relevant web hosting supplier at any time without notice and you agree to comply with the terms and conditions of the new provider in that instance.
You should be fully aware that software made available by your web hosting supplier is not owned or capable of being owned by you and is merely licensed on specific terms and conditions. Terms and conditions of the web hosting suppliers’ indemnities, non-warranties, security, development and license can be found at their respect websites and we firmly recommend that you read those terms fully and thoroughly as you are agreeing to be bound by them by entering into this Agreement.
9. WEBSITE DESIGN & DEVELOPMENT SERVICES
(a) You agree that in the provision of website design and development services by us:(a) we may use the services of third party contractors, and pass on to such contractors any information or materials, including design brief and content, provided to us by you;
(b) you are responsible to keep a copy of any existing website which we may replace pursuant to the provision of web design services;
(c) if you are not satisfied with the initial design concepts for the website in accordance with the services agreed upon between us, you may request additional design concepts (subject to our agreement on further fees) or request a refund of your fees less a $300 service fee, plus GST if any, payable to us;
(d) we are not responsible for the contents of any website we design for you, and upon publication you must satisfy yourselves that the web site will comply with all applicable laws, and codes of practice governing the use of web sites and related services;
(e) we cannot be responsible for, nor do we warrant that the provision of web design services will increase your business sales or enquiries;
(f) web hosting services provided through TCC are subject to the terms and conditions of the web hosting supplier and you agree to indemnify TCC for your failure to familiarise yourself with those terms and any loss, claim or damage arising out of your failure to comply with those terms; and
(g) the scope of design work does not include any work that is not specified on the estimate, including without limitation, logo design, writing services, proofing, editing, image sourcing, retouching and resizing. These are charged as an additional fee unless otherwise specified.
10. ONLINE SERVICES
In regards to search engine optimisation, pay per click, social media networking or other online marketing services we will use reasonable efforts to improve the position of your web site in the relevant search engine results in response to a search request, or to achieve the objectives we have indicated for any given project, however we:
- do not warrant that our efforts to improve your search engine ranking will be successful;
- cannot warrant increased exposure on account of your social media networking; and
- cannot be held responsible for any changes to the position of your web site in the search engines results in response to a search request.
If you cancel the services all associated activities undertaken by us in relation to the service will cease within one month of receipting a signed cancellation form.
(a) Whilst we will try to fully use your monthly advertising budget, we do not warrant that this will always be possible, and in the event of a shortfall in the use of your monthly advertising budget in any one month, you agree to our increasing future monthly budgets to compensate for any disparity.
(b) You will not be entitled to any refund of any partially spent monthly budgets, nor will you be entitled to set off any partially spent monthly budgets against future payments owing to us.
(c) Whilst we will try to improve your business exposure, we cannot be responsible for nor do we warrant that the provision of search engine advertising services will either:
(i) increase third party traffic to your Web Site; or
(ii) increase business sales or enquiries.
If you cancel one or more of the Services prior to completion of the Term as set out in the contract then you will be required to repay the full amount of the contract.
12. GRAPHIC DESIGN AND MARKETING SERVICES
All graphic design and marketing services will be based on information provided by you in a design brief.
Final approval is required from you in writing before print jobs can commence. This is to ensure you have witnessed a final proof and have given authority for the print job to take place. If you request any modifications or changes following final approval we will have the right to charge additional fees (which we will notify you of following the making of the modification request).
You represent and warrant to us that you are entitled to use the Intellectual Property and other proprietary rights in all the names, logos, artwork, devices, layouts, photographs, content and other material which you:
- provide to us; or
- request that we provide graphic design or marketing services in respect of.
You are solely responsible for ensuring that your use of any names, logos, artwork, layouts, devices, artwork, photographs or other content developed by us will not infringe the trade mark or other Intellectual Property or proprietary rights of any third parties. Any opinions we have may in this regard are opinions only, not representations, and should not be relied upon. If you are concerned with respect to your rights with regard to any Intellectual Property, you should seek independent legal advice.
Following completion of the relevant graphic design or marketing services we will deliver the relevant Service Materials to you in any technological or other format we consider appropriate. If you request any additional copies of the Service Materials, we will be entitled to charge you such fees for providing the additional copies as we may notify you of from time to time.
13. TECHNICAL SUPPORT
Following completion of the Services, if you request any support or assistance regarding the use, operation or implementation of the Services or Service Materials we will be entitled to charge you for the provision of such support on a time basis in accordance with our technical support hourly rates as they may be from time to time (which can be obtained from us on request). You should request support by via Freshbooks, the system you also use to view estimates and invoices with us. Simply log into Freshbooks using the username and password you selected, click on the tab which says ‘Support’ and ‘submit a new ticket’.
a) All work is billed in 15 minute increments
b) No set time period in which hours must be used
c) Maintenance and support requests are to be logged via your Freshbooks account from which we send you our estimates and invoice
We will not, without your prior consent:
- disclose to third parties any of your confidential data, information or trade secrets which we have access to;
- supply your organisational or personal contact details to third parties for marketing purposes (other than that which is reasonable required in the provision of our Services, involving the publication of web sites and search engine submissions and/or web site or offline promotion).
In the course of your relationship with us you may be given access to, or come into possession of, confidential information which may contain trade secrets, proprietary data or other confidential material of ours. By entering into this Agreement you agree not to disclose any confidential, sensitive or other information about us, our directors, staff, systems, contacts, procedures, policies, company manuals, or otherwise. This applies both during the contract and for a perpetual period following termination of the contract.
Any username or password issued to you by us is considered confidential and must not be divulged to any other person or organisation. Reasonable precautions should be taken by you to protect this information from discovery by others. If you believe that any confidential material of ours has come into possession of a party outside of this Agreement, you agree to notify us immediately.
15. INTELLECTUAL PROPERTY
We retain ownership of all Intellectual Property in the Service Materials and you agree that, apart from the provisions of this clause 15, nothing in this Agreement will be construed as giving you any ownership or other rights in respect of the Intellectual Property in the Service Materials.
We grant you a limited licence, revocable at any time upon notice, to use the Service Materials solely for the purpose specified on the estimate/invoice.
16. AWARDS AND ACKNOWLEDGEMENT
The Creative Collective reserves the right to submit, showcase or promote the materials delivered to you via:
(a) Industry design competitions, awards etc, solely as an example of The Creative Collective's work; and
(b) To exhibit the Service Materials on The Creative Collective's combined social networks, website or email broadcasts, solely as an example of, and to promote The Creative Collective's design/marketing portfolio.
17. LIMITATION OF LIABILITY
We make and offer no express or implied warranties in relation to our provision of the Services.
We expressly exclude from this Agreement all conditions, warranties and terms which may be implied in relation to our provision of the Services by statute, custom, general law or any applicable international conventions.
To the extent that the Trade Practices Act 1974 (Cth) or any other comparable legislation applies to this Agreement and implies any condition or warranty in relation to our provision of the Services or the performance of our obligations under this Agreement, which cannot be excluded, our liability for a breach of the implied condition or warranty will be limited, to the extent permitted by law, to providing you with a refund of the proportion of fees, charges and expenses paid by you for the specific Services in respect of which the breach occurred.
You indemnify us fully and irrevocably from all losses, liabilities, costs or claims arising directly or indirectly out of provision of the Services or this Agreement.
18. TITLE TO SERVICE MATERIALS
We will deliver any applicable Service Materials to you in any technical or other format we consider appropriate.
Legal and beneficial title to any Service Materials delivered to you remains with us and will only pass to you upon you making full payment of all invoices issued by us in relation to the development of the Service Materials.
You agree that:
(a) you will be a bailee of the Service Materials until such time as legal and beneficial title in them passes to you;
(b) pending payment in full of all invoices issued by us in relation to the development of the Service Materials you:
(i) must not apply the Service Materials outside the ordinary use or course of the Business;
(ii) must not allow any person to have or acquire any security interest in the Service Materials;
(iii) agree that we may recover the Service Materials and have an irrevocable licence to enter onto your business or other premises where the Service Materials are stored to do so; and
(iv) agree to keep the proceeds of payment for the Services utilising the Service Materials in a separate bank account on trust for us until payment in full.
18.1 Personal Property Security Interest (PPSI)
18.1.1 The Client acknowledges that the Creative Collective maintains an interest in the title of any Service Materials from the date this Agreement is executed by the Client until full payment of all invoices issued by us in relation to the development of the Service Materials. The Creative Collective’s interest in the Equipment is a Security Interest.
18.1.2 The Client acknowledges that so long as the Creative Collective maintains any interest in the Service Materials, it will be a first priority interest.
18.1.3 The Client agrees to fully indemnify the Creative Collective for any loss incurred as a result of the Client allowing, assisting, or enabling another party to obtain a priority interest in the Service Materials ahead of the Creative Collective’s by virtue of priority rules pursuant to PPS Legislation.
18.1.4 The Client consents to and agrees to immediately do all things necessary to effect the registration of the Creative Collective’s interest in the Service Materials in a PPS Register currently in place or which is established in the future.
18.1.5 To the fullest extent permissible under any law, we reserve the right to the right to be indemnified from you for:
(v) any costs incurred in taking any action pursuant to this clause 17; and
(vi) any claims brought against us in the event we repossesses Service Materials subject to a prior Security Interest in the PPS Register.
You must indemnify and keep us indemnified against any Loss or Damage incurred by or awarded against us which arises directly or indirectly out of:
(a) any breach of this Agreement by you or your agents including (without limitation) any breach in respect of which we exercise a Right to terminate this Agreement;
(b) any warranty or representation made by you being in any way untrue or inaccurate;
(c) our provision of the Services to you; or
(d) any negligent, unlawful or wilful act or omission of you or your employees, agents or contractors.
20. SCOPE VARIATIONS
If there are any significant variations to the Services we have estimated for, we will re-estimate and request acceptance of this from you prior to this work proceeding. This estimate will outline any additional costs for this work.
A request to vary the scope of the Services may be provided to you (and validly accepted by you) electronically, including without limitation, via “Click and Accept” forms and online windows.
You are not obliged to accept the proposed amendments to the Agreement, however by clicking ‘Accept’ you:
(a) agree that you have fully read and wish to be bound by those changes as incorporated into this Agreement; and
(b) acknowledge that TCC has relied upon your acceptance via “Click and Accept” and fully indemnify TCC from any loss, claim or damage arising on account of any allegation that its “Click and Accept” method is not binding on you.
We may terminate this Agreement at any time and without cause by providing you with 14 days written notice of termination.
Without limiting the above termination rights and any other rights or remedies we may have against you arising out of or in connection with this Agreement, we may terminate this Agreement effective immediately upon us providing you with Notice of termination, if:
(a) you go into liquidation or are wound up or become insolvent or have a receiver appointed over all or any substantial part of your assets;
(b) you propose or enter into any schemes or arrangements with your creditors;
(c) you become unable to pay your debts as and when they fall due;
(d) you dispose of the whole or any part of your assets, operations or business other than in the ordinary course of business;
(e) you fail to pay Our Charges or any other amounts payable to us under this Agreement by the due date for payment; or
(f) you fail to remedy within seven days after written demand for remedy has been made by us, any breach or non-observance or non-performance of the covenants, conditions and obligations imposed on you pursuant to this Agreement.
On termination of this agreement we will be entitled to immediately block any web site we host and to remove all data located on it. We will hold such data for a period of 14 days and allow you to collect it, at your expense ($150/hr), failing which we will be entitled to delete all such data. We will further be entitled to post such notice in respect of the non-availability of your web site as we deem appropriate.
If this Agreement is terminated prior to the completion of any Services or Service Materials, we will be entitled to retain the retainer specified in the invoice and any other amounts paid to us and by you and we will not have any obligations to complete the Services or Service Materials or provide you with access to or copies of the Service Materials.
TCC reserves its rights to seek further compensation or other remedies available to it at law for part performance or any other legal action arising from your termination. TCC’s decision whether or not to pursue liquidated damages in these circumstances rests solely with TCC and is not waived by any conduct or delay of TCC.
If you wish to terminate your domain name hosting/email account, search engine optimisation, pay per click, social media or any other services with The Creative Collective, you must do so by completing a cancellation form, available on request from firstname.lastname@example.org. If you do not provide us with a cancellation form 14 days before the expiry of the relevant period, your account will be automatically renewed for the same subscription period and you will be liable for, and immediately invoiced upon the commencement of the additional subscription period. Specifically, The Creative Collective will not accept verbal nor emailed instructions to terminate an account, a cancellation form is required. On receipt of your cancellation request, The Creative Collective will cancel your service at the first available opportunity and provide written confirmation of the cancellation having been effected.
22. SPECIAL CONDITIONS
Any Special Conditions specified in Annexure A will apply to this Agreement and to the extent of any inconsistency between a Special Condition and any other term of this Agreement the Special Condition will take priority in determining the parties intention with respect to the Agreement.
Except where expressly provided otherwise, any notice to be given by either party to the other may be sent by either email, fax, post or courier to the address of the other party as appearing in this Agreement or ancillary application forms or such other address as a party may from time to time have communicated to the other in writing. Correspondence sent by:
- email will, unless the contrary is proven, be deemed to be received on the day it was sent; or i
- fax will be deemed to be served on receipt of an error free transmission report; or
- post or courier will be deemed to be served two days following the date of posting.
The interpretation and construction of this Agreement will be governed and determined in accordance with the law of the State of Queensland and the parties submit to the non-exclusive jurisdiction of the courts of that State.
The parties will each pay their own legal costs and disbursements incurred in the preparation and execution of this Agreement.
You may not assign any of your rights or obligations under this Agreement, without our prior written consent, which consent may be given or withheld or given subject to such terms and conditions in our absolute discretion.
We may assign any of our rights and obligations under this Agreement to a third party by providing you with notice of the assignment.
No variation of this Agreement nor consent to a departure by a party from a provision, will be of effect unless it is in writing, signed by the parties or (in the case of a waiver) by the party giving it. Any such variation or consent will be effective only to the extent to or for which it may be made or given.
The non-exercise of or delay in exercising a right of a party will not operate as a waiver of that right, nor does a single exercise of a right preclude another exercise of it or the exercise of other rights. A right may only be waived by notice, signed by the party (or its authorised representative) to be bound by the waiver.
Each party to this Agreement will do all things and sign, execute and deliver all deeds and other documents as may be legally necessary or reasonably required of it by notice from another party to carry out and give effect to the terms and intentions of this Agreement. This includes any acts required to perfect, protect and preserve the rights of the other parties to this Agreement.
This Agreement will, so far as possible, be interpreted and construed so as not to be invalid, illegal or unenforceable in any respect, but if a provision on its true interpretation or construction is held to be illegal, invalid or unenforceable:
(a) that provision will, so far as possible, be read down to the extent that it may be necessary to ensure that it is not illegal, invalid or unenforceable and as may be reasonable in all the circumstances so as to give it a valid operation; or
(b) if the provision or part of it cannot effectively be read down, that provision or part of it will be deemed to be void and severable and the remaining provisions of this Agreement will not in any way be affected or impaired and will continue notwithstanding that illegality, invalidity or unenforceability.
This Agreement supersedes all prior negotiations, contracts, arrangements, understandings and agreements with respect to the subject matter. There are no representations, undertakings, warranties, covenants or agreements between the parties express or implied except as contained in this Agreement.
The parties, by their duly authorised representatives, have caused this Agreement to be executed as of the date first written above. 23.
NOTIFICATIONS & COMMUNICATIONS
In addition to general account, billing and service communications, The Creative Collective will, from time to time, issue email notifications relating to our services, including, but not limited to newsletters, announcements, promotional and seasonal offers, and surveys. By entering into this Agreement, you agree to receive email communications by inferred consent until such time as you decide to opt-out of such communications. You may opt out of our mailing list at any time by following 'unsubscribe' instructions contained within the communications (generally a link provided at the bottom of the communication).
You will not be able to opt-out of:
- Critical Service Notifications;
- Renewal, Billing and Account Notifications;
- Scheduled Downtime Notifications; or
- any other communications deemed to be an essential part of our service to you.
By accepting this agreement and engaging us for a service, you agree to be published as an active client of The Creative Collective on our website, social networks, email communications and other marketing materials. If for any reason you do not wish to be showcased in this way, please notify email@example.com.
TCC reserves the right to (instead of email communication) publish notices with respect to the above matters or any changes to the terms of this Agreement via its Twitter account, available at: twitter.com/creativecollect.
Please review our Privacy Statement for full details of our use of personal data.
24. DEFINITIONS AND INTERPRETATION
In this Agreement:
Additional Services means any creative or information technology service we may provide to you from time to time;
Intellectual Property means and includes all copyright, all rights in relation to inventions (including patents and patent Rights), all registered and unregistered trade marks (including service marks), all registered designs, all circuit layout rights, all performer’s rights and all other rights resulting from intellectual activity in the artistic, literary or scientific fields;
Loss or Damage means in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether present, unascertained, immediate, future or contingent and Losses or Damages has a corresponding meaning;
PPS Legislation means the Personal Properties Securities Act 2009 or if that Act does not exist for any reason, means any Act imposing or relating to the security of personal property and any regulation made pursuant to it and includes, where the context permits, any legislation amended by virtue of that Act;
PPS Register means any register established pursuant to PPS Legislation to record and maintain data with respect to personal property Security Interests;
Security Interests means the same as that term is defined in the PPS Legislation;
Services includes the Services specified on the estimate and/or invoice and where applicable includes any Additional Services;
Service Materials means all documents, material, data, information and concepts created as a result of or incidental to our provision of the Services;
(a) the singular includes plural and vice versa and any gender includes every gender;
(b) a person includes corporations, trusts, associations, partnerships, a Government Authority, and other legal entities, and where necessary, include successor bodies;
(c) writing include printing, typing, facsimile and other means of representing or reproducing words, figures, drawings or symbols in a visible and tangible form, in English;
(d) months mean calendar months;
(e) statutes include statutes amending, consolidating or replacing the statutes referred to and all regulations, orders-in-council, rules, by-laws and ordinances made under those statutes;
(f) sections of statutes or terms defined in statutes refer to corresponding sections or defined terms in amended, consolidated or replacement statutes;
(g) headings and the table of contents are used for convenience only and are to be disregarded in the interpretation of this Agreement;
(h) an agreement or document is to that agreement or document as amended, novated, supplemented or replaced from time to time; and
(i) a party includes that Party’s executors, administrators, substitutes, successors and permitted assigns.