Terms of service

DESIGN & MARKETING SERVICES

DEFINITIONS

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

the Proposal.

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

payment schedule. 

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.

5. ACCREDITATION/PROMOTIONS

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

party’s website.

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

this Agreement.

 

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.

 

INDEMNIFICATION/LIABILITY

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. GENERAL

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.