Terms and Conditions

Client terms & conditions

Between

Csquared Design Pty Ltd of Suite 32, 42 Bundall Road, Bundall 4217
AND
The Client

1. Defenitions

Agreement means the Agreement made between the Client and Csquared Design Pty Ltd, including the Background and Schedules, as amended from time to time.

CSQD means Csquared Design Pty Ltd.

Commencement Date means the date stated in the Agreement Schedule;

Confidential Information means facts or knowledge that are not in the public domain, including, but not limited to, information relating to the general business operations within the Client or the Agency, such as:

  1. financial statements;
  2. actual and proposed client lists, customer lists, licensee lists and distributors lists;
  3. cost and selling price information;
  4. trade secrets, know-how, work-in-progress, services and intellectual property;
  5. business and marketing plans; and
  6. third party information disclosed by one party to the other party in confidence.

Agency’s Fee means the fees set out in the Agreement Schedule;

Delivery Date means the date that acceptance is given under clause 10;

Parties means the Agency and the Client.

Schedules means the Agreement Schedules to the Agreement.

Services means the services to be performed by the Agency set out in the Agreement Schedule;

Works means the works to be created by the Agency and assigned to the Client as set out in the Agreement Schedule.

2. Interpretation

In the Agreement, unless the context otherwise requires:

  1. the singular includes the plural and vice versa, and a gender includes other genders;
  2. a reference to the singular includes the plural and vice-versa;
  3. another grammatical form of a defined word or expression has a corresponding meaning;
  4. a reference to a clause, paragraph, schedule or annexure is a reference to a clause or paragraph of, or schedule or annexure to, the Agreement, and a reference to the Agreement includes its schedules and annexures;
  5. a reference to a document or agreement includes the document or agreement as novated, altered, supplemented or replaced from time to time;
  6. all references to $ or dollars are references to Australian Dollars.
  7. a reference to a person includes the person’s executors, administrators, successors and permitted assigns and substitutes;
  8. a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
  9. a reference to a statute, ordinance, code, other law or international convention includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
  10. any obligation in the Agreement on a person not to do something includes an obligation not to agree or to allow that thing to be done;
  11. the meaning of general words is not limited by specific examples introduced by “including” and similar expressions;
  12. a reference to writing or written includes any method of reproducing words, figures, drawings or symbols in a visible and tangible form but excludes a communication by electronic mail;
  13. the word “including” is not a word of limitation and means ‘including without limitation’; and
  14. the Background forms part of this Agreement.

3. Term of agreement

  1. This Agreement commences on the Commencement Date and continues until CSQD completes the Services or this Agreement is terminated in accordance with the Agreement Term.

4. Remuneration

  1. In consideration for CSQD providing the Services the Client will pay CSQD all fees in the manner set out in the Agreement Schedule.
  2. All prices quoted are valid for 30 days only from the date of written quotation.
  3. Where the Agreement Schedule provides for an upfront payment to be paid by the Client prior to CSQD commencing providing the Services, that payment is strictly non-refundable.
  4. The Client will reimburse CSQD for such out-of-pocket expenses incurred by CSQD in the course of providing the Services.
  5. At CSQD’s sole discretion:
    1. payment shall be due prior to delivery of the services or goods; or
    2. payment for approved Clients shall be made by instalments in accordance with CSQD’s payment schedule.
  6. Time for payment for the services or goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
  7. Payment will be made by cash, credit card, paypal, by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and CSQD.
  8. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
    1. The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by CSQD.

5. Licensing of copyright

  1. The ownership of copyright in all Works produced by CSQD which are not ultimately used remains with CSQD. CSQD also retains copyright in the following:
    1. Draft concepts;
    2. Working notes and any other internal written materials;
    3. Preliminary drafts, drawings illustrations, photographs, and designs;
    4. Preliminary electronic works including website drafts, source code development tools, programs, multimedia applications and programmers’ notes;
    5. Draft videos, sound recordings, outtakes, storyboards, scripts, screenplays, and
    6. character lists;
    7. Designs which are rejected by the Client; and
    8. Source files.
  2. No copyright or any other intellectual property rights in the materials will be licensed to the Client until CSQD has been paid in full all of CSQD’s Fee.
  3. Once CSQD’s Fee is paid in full by the Client, CSQD will licence to the Client copyright in the Works, limited to the purpose and media described in the Services set out in the Agreement Schedule which can revert to CSQD. CSQD’s Fee is based upon this limited licence of copyright. If the Client requires a more encompassing licence or assignment, this must be the subject of further negotiations between the Client and Agency. An assignment of copyright will only be granted if CSQD provides this in writing.
  4. In all other respects, CSQD retains copyright and all other intellectual property and moral rights (including the right of adaptation) in the Works.

6. Self-promotion by designer

CSQD retains the right to use and reproduce the Works for the purposes of:

  1. promoting CSQD’s skills and services, including by entering the Works in competitions or design publications relating to professional quality and recognition in CSQD’s industry; and
  2. display of the Works in CSQD’s portfolio of work, including for the purpose of soliciting new work from third parties.

7. Moral rights

In relation to all materials in which copyright subsists produced by CSQD in the course of providing the Services, the Client agrees that it will not engage in acts or omissions that are contrary to any of the present or future moral rights of CSQD under Part IX of the Copyright Act 1968 (Cth).

8. Typeface

  1. If, in its provision of the Services, CSQD is required to create an original typeface for use in the Works, then CSQD retains all rights in relation to that typeface;
  2. CSQD may, at its discretion, licence any original typeface referred to in the preceding clause 6 to be used by the Client or any third party. Any such licence is not and does not form part of this Agreement;
  3. If, in the provision of the Services, CSQD is required to use an original typeface belonging to a third party, then the Client must:
    1. pay any licence fees to the third party; and
    2. acquire a license to use the typeface.

9. Brief and project timelines

  1. The Client must provide CSQD with clear and concise written instructions in a timely manner to allow CSQD to perform the Services in accordance with the Agreement Schedule.
  2. CSQD will provide you with a timeframe for your project which is an estimate only.
  3. The Client undertakes to make every effort to follow the instructions provided by CSQD and provide the required information to CSQD in order to facilitate delivery times and correct specifications. Delays in providing the required information to CSQD may result in delays in product delivery.
  4. CSQD will make all reasonable efforts to provide the product by the Delivery Dates in the Agreement Schedule, but do not accept liability for any costs incurred, loss or damage (including consequential loss or damage) compensation or loss of earnings due to any failure to meet agreed deadlines.

10. Acceptance

  1. CSQD will deliver the Works to the Client:
    1. upon completion of the Works; or
    2. otherwise in accordance with the milestones set out in Schedule 1.
  2. Following receipt of the Works the Client agrees within 14 days of delivery to examine the Works and to give CSQD notice of acceptance or rejection of the Works or advise CSQD of the changes or revisions which the Client requires to be made. All changes or revisions will be charged to the Client by CSQD on a time and materials basis as set out in Schedule 1. This clause is subject to Clause 11(b) herein;
  3. The day upon which the Client gives CSQD notice of acceptance of the Works is deemed to be the Delivery Date, and this actual Delivery Date then overrides those listed in milestones under the Agreement Schedule.

11. Expansion of the scope of work

  1. Work falling outside of the scope of the Services requested by the Client, either orally or in writing, will incur charges additional to CSQD’s Fee. Work falling outside of the scope of the Services includes, but is not limited to:
    1. additions to the list of Works;
    2. alterations to text supplied by the Client for use in the Works;
    3. additional drafts required in the provision of the Services;
    4. changes to the Client’s instructions or the brief;
    5. changes to any of the Works after the Delivery Date;
    6. additional consultations; and
    7. conversion, adjustment or manipulation of images;
  2. Where additional work requested outside of the scope of the Services, is in the sole and exclusive discretion of CSQD, substantial, a Schedule of the additional Services and the additional Works must be annexed to this Agreement. The provision of those Services and Works will be subject to the terms of this Agreement;
  3. CSQD include a “fair” and “reasonable” set number of rounds of changes (3 rounds) during any quoted projects. Any extra changes required by you may incur additional costs and such extra changes will be billed at an hourly rate
  4. Changes must be submitted in one email, and one email of changes (within the scope of the project) is considered one round of changes, unless agreed to at the beginning of the project.
  5. Urgent work requested outside of the scope of the Services which is required outside of ordinary business hours will be charged at an hourly rate equalling [applicable 20%] of CSQD’s ordinary hourly fees as set out in the Agreement Schedule.

12. Retrieval of work

  1. CSQD retains electronic archives of completed Works for a period of no longer than 6 years. If the Client requests retrieval and delivery of the Works after the Term has expired, and CSQD provides those services, then the Client must pay CSQD a service charge for those services;
  2. To the fullest extent permitted by law, CSQD accepts no liability for any loss or damage that may occur to archived work.

13. Client’s undertakings & warranties

By signing this Agreement the Client undertakes and warrants that:

  1. the Client will exercise control over the Works. CSQD will exercise reasonable care, honesty and diligence in providing the Services. The Client nonetheless warrants that it is responsible for ensuring that the Works are not contrary to law, including:
    1. ensuring that the Works do not infringe the copyright or moral right of any person in relation to any material the Client has provided to CSQD;
    2. ensuring that the Works do not infringe the trade mark rights of any person, including by undertaking trade mark searches where appropriate;
    3. ensuring that the Works are not by law defamatory of any person;
    4. ensuring that the Works are not obscene, blasphemous, offensive or discriminatory; and
    5. ensuring that the Works do not constitute conduct that is in breach of the provisions of the Competitions and Consumer Act 2010 (Cth) or that gives rise to an action in passing off, including by undertaking trade practices clearances where appropriate;
  2. the Client must ensure that all statements purporting to be facts in the Works are true and correct and that no advice or instructions in the Works will if followed or implemented by any person cause loss, damage or injury to them or any other person;
  3. the Client will use and publish the Works at its own risk.
  4. The Client will indemnify CSQD against all claims arising from CSQD’s use of any information or documents supplied by the Client or for any act or thing done by CSQD on the Client’s instructions or with the Client’s approval.

14. Liability

  1. Although CSQD will take all care in providing the Services, it accepts no liability to the fullest extent of the law regarding:
    1. any consequential loss, damage or injury, however it may arise;
    2. any punitive, additional or exemplary damages;
  2. If CSQD is found to be liable for any claims, losses, damages, costs or injuries arising out of this Agreement, the quantum of the sum of all liability or liabilities is strictly limited to the value of this Agreement.

15. Termination for breach

  1. Without prejudice to any other right or action or remedy, either party may terminate this Agreement, by written notice to the other with immediate effect, if:
    1. the other party commits a breach of this Agreement or is in default of any warranty and the defaulting party fails to correct such breach or default within 7 days of receiving notice specifying such breach or default;
    2. the other party is insolvent or otherwise unable to pay its debts as and when they fall due; or
    3. an administrator, trustee in bankruptcy, receiver, liquidator or controller is appointed to the other party;
  2. If the Agreement is terminated under this Clause, the Client agrees to pay CSQD all amounts accrued and owing in accordance with Schedule 1 within 14 days of that termination.

16. Termination, cancellation & suspension of services

  1. CSQD may terminate this Agreement for any reason whatsoever by giving the Client 30 days’ notice in writing;
  2. If CSQD terminates the Agreement under this Clause, the Client agrees to pay CSQD all amounts accrued and owing in accordance with Schedule 1 within 14 days of the expiry of the period of notice.
  3. Termination of services from CSQD by the Client must be requested in a written notice and will be effective on receipt of such notice. The Client agrees to be responsible for payment for design work completed to the date of first notice of cancellation for payment in full within thirty (30) days.
  4. CSQD reserves the right to suspend/cancel any or all services or goods provided to the Client, if:–
    1. the Client has any outstanding invoices or accounts;
    2. the Client’s account is in dispute or the subject of a dispute resolution procedure, court order, judgment, finding or determination;
    3. the Client fails to comply with any provision of these terms and conditions or any other policy, directive or requirement notified to the Client by CSQD.
  5. If the client has made no contact with CSQD office for a period of more than 1 month after the project and or any design work has commenced, CSQD reserves the right to re-quote the entire project.
  6. If any project exceeds a period of more than 6 months,CSQD reserves the right to terminate the project at its own discretion, without any refunds being paid to the client.

17. Confidentiality

  1. Each party agrees not to disclose to any third party anything about this Agreement or any of its contents unless:
    1. it has the prior written consent of the other party; or
    2. it is required to do so by law; or
    3. a third party needs to know the information in order to perform this Agreement;
  2. CSQD agrees that during the term of this Agreement it may have access to the Client’s Confidential Information, and agrees to both during and after the Term maintain the Confidential Information and to prevent its unauthorised disclosure to or use by any other person, firm, or company, unless or until authorised in writing to disclose any Confidential Information by the Client;
  3. CSQD agrees that it must not, both during and after the Term, make improper use of the Client’s Confidential Information to gain directly or indirectly an advantage for itself or for any other person or to cause detriment to the Client;
  4. The Client agrees that during the term of this Agreement it may have access to CSQD’s Confidential Client Information, and agrees to both during and after the Term maintain the Confidential Information and to prevent its unauthorised disclosure to or use by any other person, firm, or company, unless or until authorised in writing to disclose any Confidential Information by CSQD;
  5. The Client agrees that it must not, both during and after the Term, make improper use of the Agency’s Confidential Information to gain directly or indirectly an advantage for itself or for any other person or to cause detriment to CSQD;
  6. In the event of a breach of this clause the Parties agree that damages are not an adequate remedy, and will not contest any application for an urgent interlocutory injunction relating to such a breach and will pay all costs incurred by the other party in bringing any such applications on a solicitor-client basis should the other party be successful in the action.

18. Relationship of parties

  1. CSQD’s relationship with the Client is that of an independent contractor;
  2. Neither CSQD nor the Client will have (and must nor represent that it has) the power, right or authority to bind the other, or to assume or create any obligation or responsibility, express or implied, on behalf of the other or in the other’s name;
  3. Nothing stated in this Agreement should be construed as constituting CSQD and the Client has partners, in a joint venture, or as creating the relationship of employer and employee, master and servant or principal and agent between the parties;
  4. During the Term CSQD may provide, in any capacity, to any third parties, works or services of any description.

19. Restraint of trade

  1. The Client agrees that in order to protect the goodwill of CSQD the Client will not directly or indirectly at any time, for a period of:
    1. 1 year after the Delivery Date; or, in the event that this term is deemed unenforceable:
    2. 6 months after the Delivery Date; or, in the event that this term is deemed unenforceable:
    3. 3 months after the Delivery Date; employ or solicit to employ any person who is or has in the period of 1 year prior to the Delivery Date been an employee of CSQD;
  2. Clause 19(a) has effect as comprising each of the separate provisions which results from each combination of a period described therein;
  3. If any separate provision referred to in Clause 19(a) is unenforceable, illegal or void that provision is severed and the next sequential provision is in force. Each of the parties acknowledges that each of those separate provisions read separately but set out in this way is a fair and reasonable restraint of trade.

20. General

  1. All notices and consents required or permitted to be given under this Agreement must be in writing and given by personal services (including email), pre-paid postage, facsimile transmission at the addresses of the parties set out in this Agreement or to such other address as either party may designate to the other by written notice;
  2. This Agreement must not be assigned or otherwise transferred without the prior written consent of the Parties;
  3. CSQD may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
  4. CSQD reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which CSQD notifies the Client of such change.
  5. Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
  6. The failure by CSQD to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect CSQD’s right to subsequently enforce that provision.
  7. This Agreement is governed by the laws of Queensland and the Parties submit to the jurisdiction of that State;
  8. This Agreement may be modified only in writing and signed by duly authorised persons for both parties;
  9. If any provision of this Agreement is held to be invalid in any way or unenforceable, the remaining provisions are not in any way affected or impaired and this Agreement must be construed so as to give effect to the intent of the parties as it was originally executed;
  10. Clauses 5, 7, 13, 14, 17, 18 and 19 survive termination of this Agreement.

Latest update: September 4, 2019