Terms of service
DESIGN & MARKETING SERVICES
As used herein and throughout this Agreement:
1.1 Agreement means the entire content of this Basic Terms and
Conditions document, the Proposal document(s), Schedule A, together
with any other Supplements designated below, together with any exhibits,
schedules or attachments hereto.
1.2 Client Content means all materials, information, factual,
promotional, or other advertising claims, photography, writings and
other creative content provided by Client for use in the preparation of
and/or incorporation in the Deliverables.
1.3 Copyrights means the property rights in original works of
authorship, expressed in a tangible medium of expression, as
defined and enforceable under Australian Copyright Law.
1.4 Deliverables means the services and work products specified in the
Proposal to be delivered by 10HORN Creative to Client, in the form and media
specified in the Proposal.
1.5 10HORN Creative's Tools means all design tools developed and/or utilized
by 10HORN Creative in performing the Services, including without limitation
pre-existing and newly developed software including source code, web
authoring tools, type fonts, and application tools, together with any other
software, or other inventions whether or not patentable, and general
non-copyrightable concepts such as website design, architecture, layout,
navigational and functional elements.
1.6 Final Works means all creative content developed by 10HORN Creative,
or commissioned by 10HORN Creative, exclusively for the Project and
incorporated in the Final Deliverables, including, but not limited to,
any and all visual elements, graphic design, illustration, photography,
animation, motion design, audio-visual works, sounds, typographic
treatments and text, modifications to Client Content, and 10HORN Creative’s
selection, arrangement and coordination of such elements together with
Client Content and/or Third Party Materials.
Final Deliverables means the final versions of Deliverables provided
by 10HORN Creative and accepted by Client.
1.8 Preliminary Works means all creative content including, but not
limited to, concepts, sketches, visual presentations, or other alternate or
preliminary designs and documents developed by the 10HORN Creative and which may
or may not be shown and or delivered to Client for consideration but do
not form part of the Final Works.
1.9 Project means the scope and purpose of the Client’s identified usage
of the work product as described in the Proposal.
1.10 Services means all services and the work product to be provided to
Client by 10HORN Creative as described and otherwise further defined in
1.11 Third Party Materials means proprietary third party materials which
are incorporated into the Final Deliverables, including without limitation
stock photography or illustration.
1.12 Trademarks means trade names, words, symbols, designs, logos or
other devices or designs used in the Final Deliverables to designate the
origin or source of the goods or services of the Client.
1.13 Working Files means all underlying work product and digital files
utilized by 10HORN Creative to create the Preliminary Works and Final Works
other than the format comprising the Final Deliverables.
2. PROPOSAL (QUOTE)
The terms of the Proposal shall be effective for 60 days after
presentation to Client. In the event, this Agreement is not executed by
The client within the time identified, the Proposal, together with any related
terms and conditions and deliverables may be subject to amendment,
change or substitution.
3. FEES AND CHARGES
3.1 Fees. In consideration of the Services to be performed by the 10HORN Creative
The client shall pay to 10HORN Creative fees in the amounts either according to the
payment schedule set forth in the Proposal, and all applicable sales, use
or value-added taxes, even if calculated or assessed subsequent to the
Additional Costs. The Project pricing includes the 10HORN Creative's fee only.
Any and all outside costs including, but not limited to, equipment rental,
photographer’s costs and fees, photography and/or artwork licenses,
prototype production costs, talent fees, music licenses and online access
or hosting fees will be billed to the Client unless specifically otherwise
provided for in the Proposal.
3.3 Invoices. All invoices are payable within 14 days of receipt.
A monthly service charge of 1.5 per cent (or the greatest amount allowed
by state law) is payable on all overdue balances. Payments will be credited
first to late payment charges and next to the unpaid balance. The client shall
be responsible for all collection or legal fees necessitated by lateness or
default in payment. 10HORN Creative reserves the right to withhold delivery and
any transfer of ownership of any current work if accounts are not current
or overdue invoices are not paid in full. All grants of any license to use or
transfer of ownership of any intellectual property rights under this
Agreement are conditioned upon receipt of payment in full which shall
be inclusive of any and all outstanding Additional Costs, Taxes, Expenses,
and Fees, Charges, or the costs of Changes.
4. CHANGES & VIRTUAL MARKETING ASSISTANT HOURS
4.1 General Changes. Unless otherwise provided in the Proposal, and
except as otherwise provided for herein, Client shall pay additional
charges for changes requested by Client which are outside the scope of the
Services on a time and materials basis, at 10HORN Creative’s standard hourly rate
of $50 per hour. Such charges shall be in addition to all other amounts
payable under the Proposal, despite any maximum budget, contract price
or final price identified therein. 10HORN Creative may extend or modify any
delivery schedule or deadlines in the Proposal and Deliverables as may
be required by such Changes.
4.2 Pre-paid packaged hours. Pre-paid hourly rate packages purchased include
10HORN Creative's fee only, and do not include any Additional Costs (as mentioned in 3.1).
Any time that is not used within the time allocated, monthly, weekly or on-off payments
will be provided in credit. No refunds will apply if the full time is not used for any reason.
All auto-renew payments will be withdrawn automatically until cancelled in writing or
through the online system.
10HORN Creative retains the right to reproduce, publish and display the
Deliverables in 10HORN Creatives portfolios and websites, and in galleries,
design periodicals and other media or exhibits for the purposes of
recognition of creative excellence or professional advancement, and to
be credited with authorship of the Deliverables in connection with such
uses. Either party, subject to the other’s reasonable approval, may
describe its role in relation to the Project and, if applicable, the services
provided to the other party on its website and in other promotional
materials, and, if not expressly objected to, include a link to the other
6. CONFIDENTIAL INFORMATION
Each party acknowledges that in connection with this Agreement it may
receive certain confidential or proprietary technical and business
information and materials of the other party, including without limitation
Preliminary Works (“Confidential Information”). Each party, its agents
and employees shall hold and maintain in strict confidence all
Confidential Information, shall not disclose Confidential Information to
any third party, and shall not use any Confidential Information except as
may be necessary to perform its obligations under the Proposal except as
maybe required by a court or governmental authority. Notwithstanding
the foregoing, Confidential Information shall not include any
information that is in the public domain or becomes publicly known
through no fault of the receiving party, or is otherwise properly received
from a third party without an obligation of confidentiality.
7. RELATIONSHIP OF THE PARTIES
7.1 Independent Contractor. 10HORN Creative is an independent contractor, not
an employee of Client or any company affiliated with Client. 10HORN Creative
shall provide the Services under the general direction of Client, but
10HORN Creative shall determine, in Designer’s sole discretion, the manner and
means by which the Services are accomplished.
7.2 10HORN Creative's Agents. Designer shall be permitted to engage and/or
use third party suppliers or other service providers as independent
contractors in connection with the Services (“Design Agents”).
Notwithstanding, 10HORN Creative shall remain fully responsible for such
Design Agents’ compliance with the various terms and conditions of
8. WARRANTIES AND REPRESENTATIONS
8.1 By Client. Client represents, warrants and covenants to 10HORN Creative
that (a) Client owns all right, title, and interest in, or otherwise has full
right and authority to permit the use of the Client Content, (b) to the best
of Client’s knowledge, the Client Content is accurate, legal, conforms to
ethical standards of the Client’s industry does not infringe the rights of
any third party, and use of the Client Content as well as any Trademarks in
connection with the Project does not and will not violate the rights of any
third parties, (c) Client shall comply with the terms and conditions of
any licensing agreements which govern the use of Third Party Materials,
and (d) Client shall comply with all laws and regulations as they relate to
the Services and Deliverables.
8.2 By 10HORN Creative
(a) 10HORN Creative hereby represents, warrants and covenants to Client that
The 10HORN Creative will provide the Services identified in the Agreement in
a professional manner and in accordance with all reasonable professional
standards for such services.
(b) Except for the express representations and warranties stated in this
agreement, 10HORN Creative makes no warranties whatsoever. Designer
explicitly disclaims any other warranties of any kind, either express or
implied, including but not limited to warranties of merchantability or
fitness for a particular purpose or compliance with laws or government
rules or regulations applicable to the Project.
By Client. The client agrees to indemnify, save and hold harmless
10HORN Creative from any and all damages, liabilities, costs, losses or expenses
arising out of any claim, demand, or action by a third party arising out of
any breach of Client’s responsibilities or obligations, representations or
warranties under this Agreement. Under such circumstances 10HORN Creative
shall promptly notify Client in writing of any claim or suit; (a) Client has
sole control of the defence and all related settlement negotiations; and
(b) 10HORN Creative provides Client with commercially reasonable assistance,
information and authority necessary to perform Client’s obligations under
this section. The client will reimburse the reasonable out-of-pocket expenses
incurred by 10HORN Creative in providing such assistance.
9.2 Limitation of Liability. The services and the work product of
10HORN Creative are sold “as is.” In all circumstances, the maximum liability
of 10HORN Creative, its directors, officers, employees, design agents and
affiliates (“10HORN Creative's parties”), to Client for damages for any and all
causes whatsoever, and Client’s maximum remedy, regardless of
the form of action, whether in contract, tort or otherwise, shall be
limited to the net profit of 10HORN Creative. In no event shall 10HORN Creative be
liable for any lost data or content, lost profits, business interruption
or for any indirect, incidental, special, consequential, exemplary or
punitive damages arising out of or relating to the materials or the
services provided by 10HORN Creative, even if 10HORN Creative has been advised of
the possibility of such damages, and notwithstanding the failure of
the essential purpose of any limited remedy.
10.1 Governing Law and Dispute Resolution. The formation, construction,
performance and enforcement of this Agreement shall be in accordance
with the laws of Australia and the state of Victoria.
10.2 Integration. This Agreement comprises the entire understanding
of the parties hereto on the subject matter herein contained, and
supersedes and merges all prior and contemporaneous agreements,
understandings and discussions between the parties relating to the
the subject matter of this Agreement.
Termination. Either party may terminate this Agreement at any time by
seven days are written notice to the other party.
If there is a change of circumstances beyond 10HORN Creative’s reasonable
control that would prevent the services being provided, 10HORN Creative
may terminate this Agreement.
If any dispute arises involving the performance of this contract or the
interpretation of its terms, before resorting to legal action, is had by either
party, it is agreed that if negotiations fail, the parties shall utilise
mediation by an independent third-party bearing their own costs
By their execution below, the parties hereto have agreed to all of the terms
and conditions of this Agreement effective as of the last date of signature
below, and each signatory represents that it has the full authority to enter
into this Agreement and to bind her/his respective party to all of the
terms and conditions herein.