Legal Guff

THE FORMALITIES OF WORKING TOGETHER

This Agreement outlines our respective rights and obligations in relation to the Services The Creative Collective (“TCC”) provides to its clients.…  If you (“the Client”) have any difficulty in understanding the terms below, please contact the TCC management team.…  When interpreting this Agreement, refer to the ‘Definitions’ and ‘Interpretations’ clauses at the end of this Agreement.

1. Agreement & Acceptance

(a) The Agreement is comprised of the following documents (“Contract Documents”) which together for the entire agreement between the parties:

(i) the Quote and any Additional Terms contained therein; and

(ii) this document, as amended from time to time by written notification to the Client.

(b) To the extent of any inconsistency between the Contract Documents, this Agreement applies.

(c) This Agreement becomes binding immediately on written, verbal or electronic acceptance of the Quote and can be accepted by any person holding themselves out to be authorised by the Client to do so, including by the Client giving instructions to proceed with any works or acting in a manner which would suggest that the Client wishes to proceed with any works that have been communicated to the Client.

(d) TCC may vary this Agreement at any time by giving the Client 14 days’ written notice.

2. Provision of Services

We will provide the Client with the Services in accordance with the Quote on and from the date this Agreement is accepted pursuant to clause 1(c) and any required initial payment is received, until such time as:

(a) the Services are complete and/or the Materials are delivered;

(b) the minimum period stated on the Quote has expired (in the case of Retainer Work); or

(c) the Agreement is terminated in accordance with clause 19.

(“the Term”).

3. Company Obligations & Responsibilities

TCC acknowledges that it shall be responsible for performing the Services in a professional, reasonable and timely manner and shall use its best endeavors to:

(a) coordinate & communicate with the Client on the progress of the Services;

(b) lead and coordinate decision-making with third parties as instructed or required to perform the Services;

(c) briefing the Client on any Project details and assembling the relevant team for the Services; and

(d) obtaining Client approvals for any final Proofs before releasing to third parties.

4. Communications

(a) The Client agrees to exchange information generally in writing, electronically. Whilst TCC will take reasonable precautions including encryption, virus protection and other cyber security measures, to the maximum extent permitted by law, TCC is not liable for the risks related to electronic communication or digitally formatted information, including with respect to the loss of any communications or confidential information.

(b) Where deemed appropriate by TCC or if engaged for a live project, the Client agrees to contact TCC via Video Conference or our project management system of choice.

(c) Except where expressly provided otherwise in this Agreement, any notice to be given by either Party to the other may be sent to the account manager’s email address with [email protected]

(d) Correspondence sent by email will be deemed to be received when opened by the recipient. Post or courier will be deemed to be received 3 days following the date of posting.

5. Client Obligations & Responsibilities

5.1 General

(a) The Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:

(i) providing instructions to TCC and its designers as and when needed;

(ii) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly agreed;

(iii) final proofreading; and

(iv) ensuring that all information and claims comprising Client Content are accurate, legal and conform to applicable standards in Client’s industry.

(b) The Client will be sent a ‘New Client Form’ to complete and agrees to provide accurate and complete information.

(c) All necessary decision makers/key stakeholders must be present at a briefing session to ensure they can contribute to the agreed Deliverables. Should a key decision maker/stakeholder join the project who has not had input into the original briefing, we reserve the right to hold a new briefing session and additional charges may apply.

(d) In the event that the Client has approved Deliverables but errors, including (but not limited to) typographic errors or misspellings, remain in the finished product, the Client shall incur the cost of correcting such errors.

(e) The Client acknowledges that the quality of the Services and Materials we provide is dependent on the full cooperation and assistance of the Client. The Client warrant to us that it will:

(i) promptly provide accurate and complete instructions and any necessary files or materials required to complete the Services and meet its obligations under clause 4;

(ii) respond to any requests made by us for additional documentation, including (but not limited to) any working logins, images, videos, brand style guides, Client information, consents, or assistance relevant to the delivery of the Services; and

(iii) not cause the delivery of the Services to be unreasonably delayed.

5.2 Specific Timing

(a) The Client agrees to review the Deliverables within the time identified for such reviews and to promptly either:

(i) approve the Deliverables in writing or

(ii) provide written comments sufficient to identify Client’s concerns, objections or corrections.

(b) TCC shall be entitled to request written clarification thereof.

(c) The Client acknowledges and agrees that TCC’s ability to meet agreed schedules is entirely dependent upon the Client’s prompt supply of providing materials and written approvals and/or instructions pursuant and that any delays in Client’s performance or changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables.

(d) Any delay caused by the Client shall not constitute a breach of this Agreement by TCC.

5.3 Acceptance of our Quotes or Work

Where the Quote or Work terms indicates that an acceptance is required:

(a) TCC will exercise commercially reasonable efforts to check any Deliverables and to make all specified corrections prior to providing to the Client;

(b) within five (5) business days of receipt of each Deliverable, the Client shall notify TCC, in writing, of any failure to comply with the specifications set forth in the Quote or Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable; and

(c) any such written notice must be sufficient to identify with clarity any correction or change to a Deliverable, and TCC will undertake to make the same in a commercially reasonable and timely manner;

(d) in the absence of such notice from Client, the Deliverable shall be deemed accepted as received;

(e) the Client must not unreasonably withhold acceptance of a Deliverable if:

(i) The Client fails to act or makes an omission;

(ii) The Client uses any part of the Services for any revenue-earning purpose or to provide any services to third parties; or

(iii) The Client unreasonably delays the start of any work for a period of seven Business Days from the date on which we are ready to commence work; or

(iv) the Client unreasonably delays accepting a quote of more than 30 days in which case we reserve the right to requote.

(f) if the Client is in breach of any of the above, it will be deemed to have accepted the Deliverable/s.

5.4 Client Delay Fee

(a) The Client acknowledges that TCC reserves time exclusively to perform Services for its clients. In the event a Client causes a delay in the Services (“Client Delay”), Client shall pay to TCC, in addition to Fees already incurred through the date of the Client Delay, a Client Delay fee equal to the specified hourly fees for idle time caused by the Client Delay, unless TCC is able to secure other work for that time for the same or greater compensation.

(b) The Client acknowledges that if TCC accepts other work because of a Client Delay, TCC may adjust the allotted time to complete the Services as necessary to accommodate such other work.

5.5 No Solicitation

During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, the Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any employee or contractor, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, the Client agrees that TCC shall be entitled to an agency commission to be the greater of either:

(a) 35 percent of said person’s starting annual salary with Client, due within 30 days of the employment starting date; or

(b) 35 percent of fees if engaged by Client as an independent contractor, due at the end of any month during which the independent contractor performed services for Client.

6. Reschedules & Administration Charges

(a) Once a Deliverable has been scheduled any cancellations must be communicated to TCC in writing at least two (2) business days prior to the scheduled date.

(b) The Client is entitled to a maximum of one (1) reschedule, following which, all cancellations and reschedules will incur an administration fee of $250 + GST.

7. Payment Terms

(a) In return for the provision of the Services, the Client agrees to pay TCC:

(i) the Fees, including any deposit required before the commencement of work; and

(ii) any Expenses.

(b) Where it is practical to do so, TCC will endeavor to obtain the Client’s consent before incurring any Expenses. However, the Client’s liability is not contingent on TCC obtaining prior consent, if the Expense is required for completion of a Deliverable.

(c) TCC will invoice the Client for the Fees and Expenses in accordance with the terms set out in the Quote. Any invoices for projects under $2000 will be billed upfront. Invoices over $2000 – $5000 are billed 50% on engagement and are required to be paid before we start any work, and either 2 x 25% installments or 50% on completion, provided the project can be completed within a month.

(d) Where a project stalls for more than a one month for no fault of our own (“Suspension”), we reserve the right to bill an installment invoice of 25% or the full remaining 50% and hold hours in credit for up to 12 months until the Client are ready to complete the project.

(e) The Client must pay any invoice issued by TCC within 7 calendar days of receipt to the bank account nominated in the invoice.

(f) The Client agrees to provide thorough and accurate information about their business on commencement via a New Client Form and TCC reserves the right to conduct reasonable due diligence on the company based on the information provided.

(g) If the Client contracts TCC for a recurring service or several recurring services, they agree to:

(i) pay by direct debit and to give TCC authority to automatically debit the Client’s nominated card or account for the required payment and to ensure their nominated credit card remains valid;

(ii) invoices are required to be paid upfront a month in advance each month via auto-debit & the Client will be required to fulfil the minimum term outlined on the estimate. Should the Client wish to cease prior to fulfilling the term, we reserve the right to bill all outstanding charges;

(iii) potential variations to the service – If it becomes apparent to TCC that the Fees for a Retainer Services are not sufficient for the services required, TCC may increase during the Retainer Period on notice to the Client acting in good faith; and

(iv) request suspension due to exceptional circumstances. Such requests must be made by emailing the relevant TCC Account Manager providing the reasons for the request which will be escalated to management for their consideration and for approval at their discretion.

(h) If the Client prefers not to pay by direct debit for a recurring service, the Client agrees to:

(i) become a TCC ‘Approved Customer’ which will see TCC conduct a Credit Check of their registered details including ABN and other relevant data at a one off cost to the client of $180;

(ii) provide two trade references which will be contacted; and

(iii) directors to provide personal guarantor of payment.

Where any adverse credit detail is discovered, TCC reserves the right to decline any further engagement or this payment method and will be entitled to place a hold on their account or TCC credit limits have been reached.

(i) If the client chooses to pay using QuickaPay or similar services, the Client understands that these are separate third-Party organisations and agrees to indemnify TCC from any potential loss incurred.

(j) If the Client does not communicate with TCC for any 12 month period, it will forfeit any amounts held in credit.

(k) All invoices issued by TCC do not include advertising expenditure spend, which will be debited from the client’s account.

(l) TCC has no obligation to provide the Client with a refund due to a change of mind, business circumstances or any other unforeseen circumstance.

8. Consequences of Non-Payment

(a) If the Client fails to make a payment as required under this Agreement, in addition to termination under clause 19, TCC may at its discretion:

(i) charge interest on any outstanding amount due under this Agreement at a rate of 4% per month; and

(ii) temporarily pause or suspend the provision of the Services until such time as the particular payment is made by the client in full (together with any interest); and/or

(iii) prioritise other client work whose deposits or progress payments have been paid.

(b) The Client will be liable for and indemnifies TCC for any reasonable costs incurred by us in recovering any unpaid amounts under this Agreement, including but not limited to any legal, bank or collection agency fees.

9. Goods & Services Tax (GST)

(a) Where words and expressions used in this clause 9 shall have the same meaning as those words and expressions in the GST Act.

(b) All invoices issued by TCC will be exclusive of GST, unless otherwise indicated, and will not include any other taxes, duties or charges imposed or levied in Australia or overseas in connection with the supply of the Services. TCC will be entitled to invoice the Client for GST and the Client agrees to indemnify TCC for any for such taxes, duties or charges.

(c) Subject to clause 9(b), if TCC makes a taxable supply in connection with this Agreement then the party liable to pay for the taxable supply must also pay the amount of any GST payable in respect of the taxable supply.

(d) If this Agreement requires the Client to pay, reimburse or contribute to an amount paid or payable by TCC in respect of an acquisition from a third party for which TCC is entitled to claim in input tax credit, the amount required to be paid, reimbursed or contributed to by the Client will be the value of the acquisition by TCC plus, if TCC’s recovery from the Client is a taxable supply, any GST payable under this clause 9.

(e) A party who has a right to payment under this Agreement must give the party liable to pay for the taxable supply a valid tax invoice in accordance with the GST Act.

10. Additional Services & Variations

(a) Where the Client wishes TCC to vary the Services by changing the scope of work in the quote or requesting additional services (“Additional Services”), the Client must provide TCC with written notice, which must detail the request and all relevant details.

(b) The Client acknowledges that TCC may not be able to facilitate this request within the parameters of the Quote. Subject to clause 10(d), should TCC agree to the request, TCC may issue the Client a new Quote and the terms of this agreement will apply to the same, once accepted by the Client.

(c) TCC reserves the right to charge the Client additional fees at its Hourly Rate for all time spent carrying out Additional Services in addition to the Services contemplated in the Quote. This includes but is not limited to the Client not providing necessary logins, files, imagery, documents or other items required to commence or progress the Services. Where a client requires assistance in resolving access issues, establishing the correct set up, or resolving any other issues which may prevent us from commencing, progressing the work, additional charges may be incurred.

(d) Unless TCC notifies the Client otherwise, the terms and conditions of this Agreement will also apply to any variations or additional Services.

11. Terms for Specific Retainer Services

11.1 SEM / SEO

(a) Where the Quote includes search engine optimisation, or pay per click, TCC will use reasonable endeavors to improve the position of the Client’s website in the relevant search engine results, however TCC does not guarantee that:

(i) the Client’s website will achieve any particular ranking;

(ii) the Client’s website will receive increased traffic, clicks, leads or sales, or any particular number of traffic, clicks, leads or sales; or

(iii) the Client’s website will not be impacted by third party changes such as algorithm updates, website security issues etc.

(b) Not all websites are able to be sufficiently optimised. We prefer to work with WordPress sites or Shopify and in all cases will need to perform an audit to assess if we are able to optimise any given website.

11.2 Social Media

(a) Where the Quote includes social media marketing including channel setup, social media channel edits, developing or publishing social media content, running social media competitions, running social media ads, or any other related service, TCC will use all reasonable endeavors to successfully promote the Client, their event, or the particular campaign (as applicable), but TCC does not guarantee increased audience size, exposure, public awareness, increased website traffic or any particular outcome from TCC’s Services.

(b) Where TCC are posting on the Client’s social channels, the Client remains responsible for the management and monitoring of its social pages, including the need to respond to visitor posts, inbox messages, deleting spam and ensuring compliance with local, state, federal and international laws and in accordance with the social network/s in question policies.

(c) Unless specifically instructed to do so, our Services do not include resolving any issues identified within the Client’s social media accounts. Where issues are required to be resolved which were not anticipated, we reserve the right to charge additional fees, by providing written notice to the client in advance of performing the work.

(d) Where a client provides branding, copy imagery, music, video or any creative materials for use on social media, it is the client’s responsibility to ensure that the creative work is not subject to any copyright issues.

(e) It is also the client’s responsibility to review all content schedules and ad planners provided to them to make sure all their advertising and promotional claims are accurate and legal.

(f) Once ads are loaded up and live, and content is approved and scheduled, the Client agrees to not tamper with the content or ads and understands that if they do they run the risk of compromising their results. Should there be any issues with content or ads, we ask that you contact TCC in writing to request variations.

(g) TCC is not responsible for any unexpected or unintended social consequences arising from the provision of Services in relation to social media work and the Client indemnifies TCC from any claims or losses arising from any social or reputational damage connected with social media accounts.

11.3 PR & Marketing Services

(a) Where the Quote includes marketing consultancy, developing marketing strategies or plans including public relations activities, advertising or other general marketing services, TCC will use all reasonable endeavours to successfully promote the Client, their event, or the particular campaign (as applicable), but TCC does not guarantee increased exposure, public awareness, or any particular outcome from TCC’s Services.

(b) All recommendations made during a consultancy session or thereafter are general in nature and based on the information obtained supplied / garnered from the consult/brief/meeting held with the client.

(c) TCC is not responsible for any unexpected or unintended consequences arising from the provision of Services in relation to this work and the Client indemnifies TCC from any claims or losses arising from any advice or reputational damage connected with PR or marketing activities.

11.4 Graphic Design & Print Services

(a) Where design work is being undertaken, the Client must provide TCC with a detailed design brief prior to TCC commencing any design work and must make itself available for periodic approvals in accordance with clause 7.

(b) Where a client provides branding, copy imagery, music, video or any creative materials for use in designs, it is the client’s responsibility to ensure that the creative work is not subject to any copyright issues.

(c) It is also the client’s responsibility to make sure all their advertising and promotional claims are accurate and legal.

(d) If the Client requests any modifications, or changes to the agreed scope at the final design stage, this will be considered a variation and will be treated as Additional Services in accordance with clause 10.

(e) TCC will not commence printing until TCC receives the Client’s written approval of the final design(s). Printing will be performed in accordance with the specifications on the Quote. Should any of these details not be correct, it is the Client’s responsibility to request alterations prior to approving the design being sent to print.

(f) Should printed proofs be required prior to the print run, these will incur additional fees and delivery charges.

(g) The Client understands that colours and finishes of print jobs may vary slightly from previous print jobs and that TCC cannot be held responsible.

(h) Working files can be provided upon request by the Client. TCC will keep working files and final artwork for 12 months from the finalisation of the job. We can not guarantee that files can be provided to you. if requested, once this period of time has lapsed.

11.5 Photography & Videography Shoots

(a) Photography or video shoots will be shot at the number of location/s as outlined in the Quote or otherwise. Additional locations may incur additional fees.

(b) Where a shoot location by the photographer or videographer is more than 20km, ATO mileage charges will be charged in addition to the Fees.

(c) TCC’s pricing only includes the number of edit rounds as specified on the Quote or Proposal and are supplied at the discretion of the photographer. If further rounds of edits are required, additional charges will apply.

(d) Our videography and photography Fees do not include booking talent, sourcing props, arranging hair or makeup, backdrops etc. Unless otherwise specified in writing, the client is expected to have made these arrangements prior to the scheduled arrival of the photographer or videographer. If TCC are requested to make these arrangements and it was not specified as included in the Quote, the work will be done at an additional cost to the Client.

(e) The Client must arrange for all people, locations and objects which will be captured in the shoot. We take no responsibility for gaining approval from people or locations.

(f) If specified in the Quote, TCC will supply a media release template or assist with drafting but is not responsible for the suitability or use of any media release. The Client must own legal counsel on its suitability and indemnifies TCC from any claims regarding media releases.

(g) TCC will keep client files for up to 12 months after the photography or videography session. All client files will be deleted and backups will be purged after this period and TCC is not liable for any unavailability after this period.

(h) It is the client’s responsibility to take care of any people or animals involved in a shoot. TCC is not responsible for any personal injury occurring to any persons involved in a shoot or damage to public or private properties. The Client indemnifies TCC from any claims in respect of the foregoing except to the extent of any negligence of TCC.

(i) The Client accepts that all photographs and video material will be taken and edited at the photographer’s or videographer’s discretion, based on the photographer’s experience and artistic view of the Client’s brief. If the Client has special requests for shots, these shall be agreed upon by way of a “shot list” during the briefing process. The Client understands that where additional shots are requested on the day of the shoot, they may or may not be able to be accommodated and that additional charges may apply at the discretion of the photographer or videographer.

(j) It is understood that TCC is not responsible to fix photos or videos to cover parts of the Client’s body that the Client does not wish to be seen in the photo or video, unless it was confirmed with the photographer or videographer in writing prior to the shoot.

(k) The photographer(s)/videographer(s) will be allowed breaks at their own discretion including a meal break for up to 1 hour and each photographer/videographer will be provided a full guest meal for any shoot lasting longer than 5 hours at the Client’s cost.

(l) A non-refundable booking fee of 50% is required to will confirm the shoot.

(m) In the very unlikely events of cancellation by the photographer/videographer or of total photographic/videographic failure, the liability of TCC is limited to its ability to obtain a refund of any fees paid from the photographer/videographer.

(n) TCC will endeavour to put the client(s) in touch with another photographer in the event they are unable to attend on the shoot day due to any cause beyond their reasonable control.

(o) TCC will endeavour to deliver digital negative files as quickly as possible. However this could take up to 4-6 weeks during busy periods.

(p) Once the Client’s shoot has been booked, all cancellations or reschedules must be received at least 2 business days prior to the allocated date or a cancellation fee of $250 + GST will apply.

(q) Details of the shoot must be confirmed on the photo shoot brief by the Client at least 48 hours prior to booking the photographer/ shoot.

(r) The Client is responsible for gaining any necessary approvals, site permits i.e. building permits, zoning permits, parking permits, etc for the shoot.

11.6 Websites

11.6.1 General

(a) The Client acknowledges that the quality of the Services and Materials are dependent on the Client’s input and the accuracy and completeness of the Client’s instructions.

(b) If the Client are not satisfied with any initial briefing, debrief, concept designs, copywriting drafts or otherwise, the Client may request additional rounds in accordance with the process set out in clause 10.

(c) As per Australian Consumer Law we are not required to provide the Client with a refund if the Client changes its mind about the form or nature of the Services. We will not provide a refund or further designs without charge, unless we are required by law to do so. In some cases, we may offer credit to use on an alternative service at our sole discretion.

(d) The Client is responsible for all content, materials or data provided for placement on their website, and all other transactions, activities or communications conducted through the website.

(e) TCC has no obligation to monitor or manage the Client’s website content and is in no way liable for any disputes or complaints arising from the content or website performance.

(f) The Client is responsible for all content, materials or data that the Client posts, uploads or stores on a website and all transactions or other activities conducted though, or on any website created and/or hosted by us.

(g) The Client must provide all relevant content before the website development project commences (wording, images, videos, examples of websites they like, domain and hosting information, etc) before the job begins.

(h) A ‘page’ of content is considered 300 – 500 words. If page content supplied is significantly greater than this, we reserve the right to charge additional fees.

(i) Any website Quote includes up to the specified hours of development time. If the scope changes, or hours exceed this, the Client may incur additional fees at our current hourly rate.

(j) The Client will conform to any instructions or standards issued by us from time to time regarding the Client’s website. TCC is not liable if the Client fails to follow a reasonable direction aimed at ensuring website compliance or maintenance issues.

(k) The Client acknowledges that we may refuse to accept any data, information requests or instructions where we believe acceptance may result in a breach of laws or any term of this Agreement.

11.6.2 Website Warranty

(a) All websites developed by TCC are subject to a standard 30-day functional warranty, which extends to any bugs, system glitches or lathe Client issues only but does not extend to any errors caused by human intervention in editing the site or modifying settings following delivery.

(b) While all of TCC’s work product is subject to detailed quality assurance and testing processes, this warranty is designed to allow the Client to review and monitor the usage of the website following delivery.

(c) If any errors are caused by the Client’s administration/usage, TCC reserves the right to charge the Client to rectify these issues based on its Hourly Rate.

(d) TCC will take all reasonable methods to verify compatibility of the Client’s website on most devices. Whilst we will ensure it is responsive on popular devices, it cannot be checked on every type of smartphone available and results may differ slightly from device to device.

(e) TCC does not provide any guarantees as to the Client’s website’s ability to rank on internet search engines around the world. Further assistance with website ranking and ongoing SEO is available as an additional service/package provided by TCC.

(f) All website builds are prepared by TCC based on the brief taken and the briefing document prepared under Client’s instructions. The Client’s warrants its instructions are accurate and complete. The onus is on the Client to check the brief and run sheet prior to the commencement of any work. This includes consulting with any relevant stakeholders who the Client considers need to approve the briefing document prior to commencement of work.

(g) The Client must provide all materials necessary for the website build to TCC. This includes any copy, imagery, documents, videos or other resources the Client wishes include on the website.

(h) If TCC considers that materials provided by the Client to be insufficient or unsuitable for the work required, TCC reserves the right to adjust the Quote and/or the time for completion of work as a variation under clause 10.

(i) If the Client fails to provide the necessary materials to TCC prior to the nominated development/build days, TCC reserves the right to reschedule or cancel the website build at the Client’s expense.

(j) If the Client is not satisfied with any initial concept designs, the Client may request additional designs in accordance with TCC’s ‘Additional Services and Variations’ clause 10.

(k) Any further designs will be subject to an additional charge or a credit to use an alternative service at TCC’s discretion.

11.6.3 Hosting & Security

(a) The Client will need a host for their website. The Client can arrange its own hosting if preferred but if using our hosting TCC’s current plans and options are available at thecreativecollective.com.au/hosting.

(b) If using TCC hosting, TCC is not responsible for any ongoing site maintenance, updates or security checks of the website, nor resolving any other bugs or other issues that may arise.

(c) Where the Client elects to host its website with a third-party supplier, the Client will be bound by the terms and conditions of the third party supplier and we will not be responsible for the maintenance and uptime of the website (including updates and security checks), nor for resolving any bugs or other issues that may arise.

(d) If the Client requires our assistance with any hosting, security, domains or other related website issues, we will charge our Hourly Rate and reserve the right to decline the opportunity to work on any given website.

(e) Where the Client chooses to host with us, TCC will use all reasonable endeavours to ensure the integrity and security of any website. However, the Client acknowledges that matters outside of TCC’s control may affect the security and performance of the Services and TCC has no responsibility in that regard.

(f) Server space for our hosting Clients is divided between clients primarily based on disk space allocation and the amount of resources that the site needs to use to operate smoothly. The most notable fair use case relates to bandwidth on our shared hosting accounts. Bandwidth is set to ‘unlimited’ but The Creative Collective reserves the right to upgrade the Client’s package should it’s website use more than 1000GB in Bandwidth resources on a regular basis. For clients who persistently go over our fair use limits, we will work with them to ensure they are moved on to the most relevant hosting package for their needs in order to protect resources for our other clients and provide guaranteed resources for the high user.

(g) TCC reserves the right to suspend, require changes or disable as necessary any web site, account, database, or other component at any time in its absolute discretion. The Client warrants that any website hosted by TCC will only be used for lawful purposes. The Client (or any of the Client’s representative) will not knowingly or recklessly post or link to any material which:

(i) is unlawful, threatening, abusive, harmful, malicious, defamatory, violent, obscene, pornographic, profane or is otherwise objectionable in any way;

(ii) contains a virus or other malicious computer program;

(iii) breaches the Spam Act 2003 (Cth);

(iv) could reasonably constitute or encourage a criminal offence, give rise to civil liability;

(v) is misleading or deceptive; or

(vi) violates or infringes any trade mark, copyright, other intellectual property rights or similar rights of any person under the laws of any jurisdiction.

(h) The Client will keep secure any identification, password and other confidential information relating to the Client’s account and website. TCC will not be responsible for any loss, misuse, theft unauthorised disclosure of the Client’s password information not related to TCC.

(i) The Client will notify TCC immediately of any known or suspected unauthorised use of the Client’s account, breach of security or loss, theft or unauthorised disclosure of the Client’s password or other confidential information.

(j) The Client will conform to any instructions or standards issued by TCC from time to time regarding the use of any website hosted by TCC and the Client agrees to provide TCC with any information relating to the website in order to do this.

(k) TCC does not warrant or guarantee that:

(i) Any website account hosted by TCC will be free from unauthorised users or hackers;

(ii) TCC’s virus protection services will stop every virus from reaching the Client’s computer network; or

(iii) TCC’s Services will be error free, or free from interruption, or failure.

11.6.4 Domains

(a) The Client must own a domain to place the live website on. The Client may purchase one from TCC.

(b) TCC will only use a preferred domain registrar (“Registrar”) to register or renew domain names.

(c) Registration and renewal of domain names are subject to the terms and conditions of the Registrar and TCC will not be liable in any way for any decisions made by the Registrar.

(d) The Client is responsible for renewing the Client’s domain name, unless TCC expressly agrees to arrange for the renewal.

(e) The Client may cancel a registration up to 24 hours after the domain name has been registered. Fees may apply for cancellation of a registered domain name.

(f) TCC accepts no responsibility in respect of the use of a domain name by the Client and any dispute between the Client and any other individual or organisation regarding a domain name must be resolved between the parties concerned. TCC will take no part in any such dispute.

11.6.5 Email Hosting

We do not offer email hosting so the Client will need to organise this separately. We can make introductions to companies who do offer this service for you to evaluate independently.

12. Technical Support

(a) Unless expressly contained in the Quote or as part of Retainer Services, if the Client requests any support or assistance regarding the use, operation or implementation of the Services, or Materials, we may charge for our time at our Hourly Rate in accordance with clause 10.

(b) Support tickets must be lodged with us according to the process set out on our website at thecreativecollective.com.au/support-maintenance/.

(c) We will provide an estimate of costs at the time the Client lodges a support ticket. If the issue requires more time than expected, we will advise the Client of any additional fees.

(d) We reserve the right to decline the opportunity to work on a website where our work schedules do not permit the necessary space to work on a site, where we did not create the website, or if this may not be a project we wish to work on.

13. Online Advertising Spend

(a) In addition to the Service Fees, The Client nominated credit card will be billed for any advertising expenditure in accordance with the providers (Facebook, Google etc.) terms and billing policies. This Client must ensure their credit card remains in credit in order to ensure the continuation of these services.

(b) We will use our best endeavors to utilise the full monthly advertising expenditure agreed upon and/or allocated in the case of online advertising.

(c) If the full budgeted amount is not spent by the end of the relevant period the Client will not be entitled to a refund, nor will the Client be entitled to set off any unspent amounts against any future Services of Fees.

(d) TCC will use its best endeavours to ensure any online advertising remains in budget but will not be liable for any third-party charges in any circumstances, including where such charges inadvertently exceed the agreed budget. It is the Clients responsibility to ensure the cessation of any online advertising expenditure.

14. Disputes & Dispute Resolution

(a) Each party must appoint a person to be a for the purposes of this Agreement that has the authority to resolve the Dispute. Each party must give written notice of any change to the Dispute Representative.

(b) Where there is a Dispute, either party’s Dispute Representative may deliver a Notice of Dispute to the other party.

(c) Within 14 days of receipt of a Notice of Dispute, the Dispute Representatives must meet at the time and place referred to in the Notice of Dispute (“First Dispute Meeting”).

(d) At a First Dispute Meeting, both parties must use their best endeavors to:

(i) resolve the whole of the Dispute, or as much of the Dispute as possible; and

(ii) to the extent that the Dispute is not wholly resolved:

(1) identify any relevant facts, documents and parts of documents which are agreed and which remain the subject of a genuine disagreement; and

(2) agree on an appropriate process by which to resolve the matters of disagreement.

(e) If, within 10 Business Days of the First Dispute Meeting, the Dispute has not been wholly resolved, the parties Directors (or person holding equivalent authority) must meet to discuss resolution of the Dispute (“Final Dispute Meeting”).

(f) If, the Dispute is not resolved within 5 Business Days of the Final Dispute Meeting, either party may refer the Dispute for Arbitration in accordance with the rules of the Australian Disputes Centre.

(g) The determination of the Arbitrator is conclusive and binding on the parties.

(h) The costs of the Arbitrator will be shared equally between the parties and the arbitrator will have a discretion in wards costs to one or both of the parties, having regard to the reasonableness or otherwise of the actions of the parties.

(i) If the Expert fails to deliver a determination within 20 Business Days after the last day on which the parties are entitled to make submissions, either party may require the appointment of a further Expert to determine the Dispute.

(j) Despite the existence of a Dispute, the parties must continue to perform their respective obligation under this Agreement.

(k) Neither party may commence proceedings in court in relation to a Dispute unless:

(i) a Notice of Dispute has been delivered in relation to that Dispute and the party commencing proceedings has complied with its obligations under this Clause 14); or

(ii) the only relief sought is urgent injunctive or urgent declaratory relief.

15. Confidentiality

(a) Neither party may disclose any Confidential Information to a third party, unless required to do so by law, in which case they must, where possible, give the other party reasonable notice and opportunity to challenge such disclosure.

(b) Each party agrees to use all practical steps to protect the Confidential Information and ensure it is not disclosed to anyone other than its employees or persons acting on its behalf to perform its obligations under this agreement.

(c) Each party must immediately notify the other if it believes that there has been unauthorised access to, or disclosure of any Confidential Information.

(d) This confidentiality undertaking will continue to remain in force after this Agreement has ended.

16. Intellectual Property

(a) All Intellectual Property created in the performance of the Services vest in TCC immediately upon creation.

(b) TCC grants the Client a non-exclusive, transferable, irrevocable, royalty-free licence in perpetuity to use any of our Intellectual Property in the Materials and Deliverables to the extent necessary to use them in the ordinary course of its business but excluding any purpose in competition with TCC.

(c) To the extent necessary for TCC to provide the Services, the Client grants TCC a non-exclusive, non-transferable, royalty-free, licence to use the Client’s Intellectual Property.

(d) The Client warrants that the use of any Client Intellectual Property provide us in connection with this Agreement will not infringe the intellectual property rights of any third party and the Client indemnifies TCC against any Loss arising out of or in connection with a breach of this clause.

(e) The Client gives TCC permission to use any work product arising out of the Services and the Materials for legitimate promotional purposes as part of TCC’s portfolio, websites, and other media, industry design competitions or awards.

17. Liability

(a) Except to the extent required by law, or as explicitly provided in this agreement, we make no representations or warranties in relation to the quality of the Services or Materials or that they will improve the Client’s business profitability or market reputation.

(b) Our liability under this agreement for any single or series of related events giving rise to a cause of action shall be limited to an amount equal to the Fees and Expenses for the Services and only to the extent of the replacement of such Services or Materials, whichever is the lesser.

(c) We will not be liable to the extent of any breach of this agreement by the Client or any Loss was caused or contributed to by the Client, a third party, or by circumstances outside of our control.

(d) The Client agree to indemnify us fully against any and all Loss arising from, or in connection with a breach of this Agreement, or any other act or omission committed by the Client, or any of the Client’s employees, agents or contractors.

(e) The Client indemnifies TCC for the personal injury of any persons or damage to property caused or materially contributed to by the Client, save to the extent of any negligence of TCC.

(f) The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties or that of agency, partnership or joint venture. Subject to payment of any unpaid Fees and Expenses, the Client is free to engage others to perform services of the same or similar nature to the Services and TCC is entitled to offer the same or similar services to others on an unfettered basis.

(g) Any Completion Dates are estimates only and we will not be held liable for any Loss suffered by the Client as a result of any failure to meet Completion Dates and any reliance the Client have made on any estimated Completion Dates.

18. Title to Materials

(a) TCC will deliver the Materials to the Client in the format stipulated in the Quote. If the Client requests any additional copies of the Materials, TCC may charge additional fees at TCC’s Hourly Rate.

(b) Legal and beneficial title in any Materials delivered to the Client remains with TCC until the Client has paid all outstanding Fees and Expenses.

(c) The Client acknowledges that TCC’s retention of title in the Materials under clause 18b) constitutes a security interest for the purposes of the Personal Property Security Act 2009 (Cth). TCC may register a Purchase Money Security Interest (“PMSI“) in respect of the Materials on the Personal Property Security Register (“PPSR“).

(d) In the event that TCC registers a PMSI, or other security interest, the Client must take all reasonable steps to ensure that the security is an enforceable and perfected security interest at law.

(e) The Client agrees to indemnify TCC for any costs associated with enforcing any Security interest on the PPSR.… 

19. Termination

(a) Either party may terminate this Agreement at any time by providing the other with 30 days written notice.

(b) Without limiting the above termination rights and any other rights or remedies TCC has at law, TCC may terminate this Agreement effective immediately upon written notice, if the Client:

(i) commits a material breach of that Agreement that is not capable of remedy;

(ii) goes into liquidation, is wound up, becomes insolvent or has a receiver appointed over all or any substantial part of the Client’s assets;

(iii) proposes to enter into any schemes or arrangements with creditors;

(iv) becomes unable to pay the Client’s debts as and when they fall due;

(v) dispose of the whole or any part of its assets, operations or business other than in the ordinary course of business;

(vi) fail to pay the Fees and Expenses or any other amounts payable to us under this Agreement by the due date; or

(vii) fail to remedy within seven days after written demand has been made by TCC, including any breach or non-observance or non-performance of the covenants, conditions and obligations imposed pursuant to this Agreement.

(c) On termination of this agreement all unpaid Fees and Expenses will become immediately due payable. TCC will not have any obligations to complete any incomplete Deliverables or provide the Client with access to or copies of any Materials if TCC terminates under clause 19(b) or, if either party terminates under clause 19(a), until such time as payment pursuant to this clause is paid in full. TCC will be entitled to immediately cease any website hosting and/or post a notice in respect of its non-availability. We will hold any website data for a period of 14 days and allow the Client to collect it, at the Client’s expense, failing which we will be entitled to delete all such data.

(d) On request TCC will back up the Client’s website or transfer it to another provider, subject to payment of our current Back Up Fee. Subject to payment of the Back Up Fee, TCC will hold a copy of the backup for 90 days, which may be downloaded by The Client before the expiry date.

(e) If we are required to provide migration assistance to a new supplier, we may charge additional fees at our Hourly Rate.

20. Notices

(a) Except where expressly provided otherwise in this Agreement, any notice to be given by either party to the other may be sent by either email, post or courier to the address of the other party as appearing in Quote, or such other address as a party may from time to time have communicated to the other in writing.

(b) Correspondence sent by:

(i) email will, unless the contrary is proven, be deemed to be received on the day it was received by TCC’s server; and

(ii) post or courier will be deemed to be received two days following the date of sending.

21. General

(a) 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.

(b) The Client may not assign any of its rights or obligations under this Agreement without our prior written consent, which may be withheld in TCC’s absolute discretion. TCC may assign any of its rights and obligations by providing a notice to that effect.

(c) TCC may vary this Agreement at any time by giving the Client 14 days’ written notice.

(d) 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 written notice to that effect.

(e) 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.

(f) If a provision or a portion of a provision of this Agreement is held to be illegal, invalid or unenforceable, that provision or part thereof will, so far as possible, be read down only to the extent that it may be reasonable and necessary to ensure that it is legal, valid and enforceable.

(g) This Agreement constitutes the entire agreement between the parties and supersedes all prior negotiations, contracts, arrangements, understandings and agreements with respect to its subject matter. There are no representations, undertakings, warranties, covenants or agreements between the parties expresses or implied except as contained in this Agreement.

22.… Definitions

Agreement means this page and any Contract Documents pursuant to clause 1.

Billing Period means the period beginning on the first of the month and ending on the last day of the month.

Business Day means any day (other than a Saturday, or Sunday, or a public holiday in the State of Queensland) in which the banks in Brisbane are usually open for business.

Client means the person who has accepted the Quote.

Client Content means materials documentation to be provided by the Client in order to inform the scope of the Services and the content of any Materials.

Confidential Information means any information disclosed to either party relating to their businesses, customers, suppliers, employees, plans, designs, processes, trade secrets or software, passwords and usernames and any other information that is by its nature confidential or that a reasonable business person would consider confidential, but does not include information that:

(a) is publicly available at the commencement of this Agreement;

(b) becomes publicly available, without breach of any obligation of confidence by either party;

(c) was already in the possession of the other party (as evidenced by written records) at the Commencement Date; or

(d) a party is obliged by law or required for the purposes of complying with taxation requirements, to disclose.

Completion Date means any calendar date specified in the Clients Quote for the delivery or completion of the Services, or as otherwise indicated by us.

Deposit Amount means an amount (if any) payable prior to the commencement of Services as set out in the Quote.

Deliverables means any specified Materials or outcomes specified in any Proposal or the Quote.

Dispute means any dispute, difference or issue between the Parties concerning or arising out of or in connection with or relating to this Agreement or the subject matter of this Agreement, termination, validity, repudiation, rectification, frustration, operation or interpretation of this agreement.

Expenses means any out-of-pocket expenses properly incurred by TCC on the Client’s behalf related to the provision of the Services including (without limitation) travel and accommodation, image licence fees, software licence fees, courier and postage fees and printing expenses.

Fees mean the Fees for the Services set out in the Quote.

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended).

Hourly Rate means our standard hourly rate as amended from time to time.

Intellectual Property means copyright, design, process, trademark, formula, invention, model, business name, domain name, patent, trade secret and any other intellectual property right of any nature whatsoever throughout the world (whether registered or unregistered and including all applications and rights to apply for the same).

Loss 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 direct or indirect.

Materials means any materials, or Deliverables specified in the Quote, or which are integral in the Services.

Notice of Dispute means a written notice which:

(a) states that it is a notice under clause 14;

(b) identifies the Dispute;

(c) states a time (which must be within normal business hours) and place (reasonably convenient to both parties) for a without prejudice meeting.

Retainer Services means any Services of a recurring nature over time (as opposed to those provided for the setup or completion of one-off projects) and includes any work undertaken for the Client that extends past the delivery of a Project or between delivery of Projects and which is recurring for more than one month in nature. They may include but are not limited to:

(a) Website Hosting

(b) Domain Registration & Renewal

(c) Google Ads/Bing Ads or other digital advertising

(d) Social Media Services

(e) Search engine optimisation (SEO) services

(f) Additional services

Projects means any works undertaken by TCC in the creation of any deliverable product to the Client as part of the Services or future services contemplated between them.

Proposal means and document provided to the client outlining the services and capabilities of TCC.

Quote means any document provided by TCC to the Client (in any form) setting out the scope of services to be supplied and Fees and any applicable Fees, specifications or other special conditions, and includes any revisions to the same.

Services means work performed by TCC for the Client as set out in the Quote and includes the Materials, any Project Deliverables and any Retainer Services.

23. Interpretations

Unless otherwise provided, in this Agreement:

(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, includes successor bodies;

(c) months mean calendar months;

(d) references to 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;

(e) sections of statutes or terms defined in statutes refer to corresponding sections or defined terms in amended, consolidated or replacement statutes;

(f) headings and the table of contents are used for convenience only and are to be disregarded in the interpretation of this Agreement;

(g) an agreement or document is to that agreement or document as amended, novated, supplemented or replaced from time to time; and

(h) a party includes that Party’s executors, administrators, substitutes, successors and permitted assignees.

This agreement shall not be interpreted adversely to a party merely on the basis that party provided it or a portion of it.

Last Updated 24 September 2021

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