Terms and Conditions
These provisions set out the standard terms and conditions of engagement of Salted Caramel Studio (SCS) Pty Ltd and any of its directors, employees, contractors and sub-contractors (collectively referred to as “Salted Caramel Studio”, or “SCS”) (the “Engagement”). The Engagement Letter, the Scope and these terms and conditions, including any written variation (together called the “Agreement”) will apply to all work to be performed for the Client under the Engagement. Salted Caramel Studio (SCS) will provide the services as described in the Engagement Letter (the “Services”).
This Agreement constitutes the entire agreement between Salted Caramel Studio (SCS) and the Client. Where there is any inconsistency between the Engagement Letter and these terms and conditions, the Engagement Letter shall prevail.
The Client acknowledges that Salted Caramel Studio (SCS) is engaged under this Agreement as an independent contractor. In the event that any of the terms of this Agreement are or shall become invalid, illegal or unenforceable, the remainder shall survive unaffected.
The offer contained in the Engagement Letter (the “Offer”) may only be accepted by written confirmation within 28 days from the date of issue, unless otherwise indicated. If the Offer is not accepted, the Offer shall lapse.
2. Client Obligations
The Client agrees to pay for the Services described in the Estimate & Project Outline.
The Client shall promptly provide to Salted Caramel Studio (SCS), at the time of commencement of the Engagement and upon request, all reasonable and necessary assistance, including access to all information, which Salted Caramel Studio (SCS) considers to be relevant to the Engagement so as to enable it to perform the Engagement. In doing so, the Client shall update any information provided by the Client or its agents to Salted Caramel Studio (SCS) where there has been a material change to that information which affects the scope or performance by Salted Caramel Studio (SCS) of the Engagement.
3. Unavoidable Delays
Salted Caramel Studio (SCS) shall not be liable for any failure or delay in providing the Services if caused or contributed to by an act or event (including the non-performance of the Client’s obligations) that is beyond its control, or was not foreseen at the time of entering into this Agreement. Salted Caramel Studio (SCS) will advise the Client of the delay and cause. Salted Caramel Studio (SCS) shall be entitled to review its fees where such delays occur as further agreed by the Client.
Specified Engagement Personnel
Salted Caramel Studio (SCS) ’s intention at the time of making the Offer is that the persons assigned to the Engagement should continue providing the Services until the completion or termination of the Engagement. Should the persons assigned to the Engagement cease for any reason to be available at any time during the course of the Engagement, Salted Caramel Studio (SCS) will inform the Client promptly of that change and will identify the substitute persons who have been assigned by Salted Caramel Studio (SCS) to complete the Engagement.
4. Use of Reports, Advice and Opinions
All communications by Salted Caramel Studio (SCS) with the Client, its employees or agents, whether written or oral, are provided solely for the use of the Client in connection with the Engagement, and shall not be used for any other purpose or referred to in any document or made available to any other person (except the Client’s lawyers or other professional advisors assisting in the Engagement) without Salted Caramel Studio (SCS) ’s prior written consent.
No other party is entitled to rely on Salted Caramel Studio (SCS) ’s reports, advice or opinions for any purpose whatsoever. Salted Caramel Studio (SCS) disclaims any responsibility to any such third party who has had communicated to them the reports, advice or opinions provided by Salted Caramel Studio (SCS) to the Client as part of the Engagement.
The Client may not rely upon any reports, advice or opinions transmitted electronically unless confirmed by letter signed by a director or other authorised signatory of Salted Caramel Studio (SCS) .
Written advice and opinions and final reports shall take precedence over any oral advice and opinions and interim reports. Salted Caramel Studio (SCS) is not responsible for updating any reports, advice or opinions subsequent to the issue of a final version.
5. Professional Fees and Payment Terms
Unless otherwise specifically agreed and quoted, Salted Caramel Studio (SCS ’s fees referred to in this Agreement are estimates based on hourly rates, which take account of the level of staff assigned to the Engagement. In the event that Salted Caramel Studio (SCS) considers that the estimate is likely to be exceeded, it will advise the Client as soon as practicable and seek Client agreement prior to any additional expense being occurred that is above the estimate provided in the Engagement Letter.
The Client agrees to pay any tax or other charge imposed on Salted Caramel Studio (SCS) (now or in the future) in relation to any transactions arising in connection with, or as an outcome of, this Agreement. This includes (but is not limited to) any goods and service tax (“GST”) imposed under the A New Tax System (Goods and Service Tax) Act 1999 (Commonwealth) as amended. Any fees charged by Salted Caramel Studio (SCS) under this Agreement will be initially calculated exclusive of GST. Where GST is payable on any supply provided under this Agreement, the Client agrees that the fee payable for this supply will be increased by an amount equivalent to the GST payable by Salted Caramel Studio (SCS) in respect of that supply.
If it is necessary for Salted Caramel Studio (SCS) to terminate the Engagement, for the reasons set out in this Agreement or for any other reason that Salted Caramel Studio (SCS) considers justifies termination, Salted Caramel Studio (SCS) shall be entitled to its fees incurred up to the Engagement termination date.
Expenses, including travel and subsistence, and goods and services purchased on the Client’s behalf, are charged at cost. For travel, our standard policies apply which are to use business class or equivalent for overseas air travel and between Perth and Darwin and the east coast of Australia. We fly economy class on all other domestic flights.
Salted Caramel Studio (SCS) will be entitled to issue invoices no less frequently than monthly or as specifically described in the Engagement Letter. Invoices are payable within 7 days of receipt except where the Engagement Letter states otherwise. Salted Caramel Studio (SCS) reserves the right to charge interest on overdue amounts at and weekly rate of 5 per cent over the Reserve Bank of Australia Overnight Target Rate applying on the date payment is due.
6. Confidentiality and Privacy
Unless otherwise agreed, Salted Caramel Studio (SCS) is authorised by the Client to speak to, or meet with, any other person whom it may need to contact to perform the Engagement or who the Client requests it to contact.
Other than as required by any law, Salted Caramel Studio (SCS) and the Client shall not disclose this business relationship in any form. Including confidential information relating to SCS or the Client which is obtains during the course of the Engagement to any other person (except its own advisors) (including Personal and or Sensitive Information/Client Information) without SCS or the Client’s prior consent.
7. Copyright and Intellectual Property
You guarantee to us that any elements of text, graphics, photos, designs, trademarks, or other artwork that you provide us for inclusion in the project are either owned by your good selfs, or that you have permission to use them.
All services provided by Salted Caramel Studio shall be for the exclusive use of the client other than for the designer’s promotional use. Upon payment of all fees, the following rights for all approved final designs created by Salted Caramel Studio for this project shall be granted:
•Client to gain full transferable rights to all deliverables.
•Client to gain full license to reproduce all design works.
•Client will refer to image licensing as supplied for image terms.
The client shall be entitled to full ownership of all final artwork created for delivery of the project upon full payment of the agreed fee. All concepts & designs discard through the project design process
You own the graphics and other visual elements that we create for you for this project. We will give you a copy of all files and you should store them really safely as we are not legally required to maintain a copy/backup of completed works.
8. Limitation of Liability
Subject to clauses 9 and 10, in the event of any liability for damages arising directly or indirectly from the services rendered under this Agreement, the liability of Salted Caramel Studio (SCS) is limited to the amount of fees it charges to the Client.
Subject always to the aggregate limit of liability specified in clause 9, the liability of Salted Caramel Studio (SCS) under the Engagement shall be limited to that proportion of the total direct and indirect loss and damage (including costs and interest) that is attributable to the extent of responsibility of Salted Caramel Studio (SCS) for such loss and damage. The Client agrees that, to the extent that any loss or damage suffered by the Client is attributable to fault, negligence or lack of care on the Client’s part or on the part of any person for whom the Client is responsible (including other advisors to the Client), Salted Caramel Studio (SCS) has no liability (in tort, contract or otherwise) for such loss or damage.
Nothing in this clause 9 or in clause 10 shall seek to exclude, restrict or modify the application of any provisions of the Competition and Consumer Act 2010 and Australian Consumer Law (the “Act”). To the extent permitted by law, in the event that, on provision of the Services, Salted Caramel Studio (SCS) is in breach of any guarantee under Division 1, Schedule 2 of the Act for services of a kind ordinarily acquired for personal, domestic or household use or consumption, Salted Caramel Studio (SCS) may, in its absolute discretion, limit its liability to either resupplying the Services without charge to the Client or to pay the Client the cost of having the Services performed again.
The limit of the liability of Salted Caramel Studio (SCS) as set out in clause 9 applies in respect of any direct or indirect loss, however caused, excluding wilful misconduct, which the Client may suffer under this Agreement. The limit of the liability of Salted Caramel Studio (SCS) applies to any liability for negligence arising from the breach of an express or implied term of this Agreement, or from the breach of a common law duty of care, including any duty of care that arose during the negotiation of this Agreement.
The Client agrees to indemnify Salted Caramel Studio (SCS) against all liabilities, claims, costs or expenses incurred by Salted Caramel Studio (SCS) in respect of any claim or action by a third party in connection with the provision of the Services. This indemnity does not apply to any liabilities, costs or expenses incurred in defending a claim by a third party which results from any wilful misconduct by Salted Caramel Studio (SCS) , except when the Client is in breach.
Notwithstanding any other provision of this Agreement, Salted Caramel Studio (SCS) shall not be liable to the Client or any other person for any losses, damages, costs or expenses arising out of errors made by Salted Caramel Studio (SCS) due to, or as a result of, whether direct or indirect, the supply or provision to Salted Caramel Studio (SCS) by the Client or any of its agents of false, misleading or incomplete information or documentation or due to any acts or omissions of the Client or any other person (the “False Information or Act”).
The Client indemnifies Salted Caramel Studio (SCS) from any liability Salted Caramel Studio (SCS) may have to the Client or any third party as a result of any False Information or Act supplied to Salted Caramel Studio (SCS) , where the False Information or Act is false, misleading or incomplete in a material respect.
Both parties may terminate this Agreement in the following circumstances:
I. upon 30 days’ written notice to the Client
II. if either party commits a material breach of its obligations under this Agreement that cannot be remedied or, if the breach is capable of remedy, the breach is not remedied within 14 days after receipt by the Client of a notice from Salted Caramel Studio (SCS) identifying the breach and requiring its remedy
III. if either party is insolvent or presumed to be insolvent, or if a liquidator, provisional liquidator or mortgagee in possession is appointed, or if it enters
IV. into an arrangement or composition with one or more of its creditors or if it ceases to carry on business or threatens to do so or anything occurs which has a substantially similar effect to any of above.
11. Right of Lien
In the event of termination, by either party and for any reason, Salted Caramel Studio (SCS) will maintain a specific as well as a general right of lien over all of your files. This right is ongoing and entitles us to retain possession of all files and related documents as security, until such time as all charges have been rendered, all accounts have been settled, and all other obligations have been satisfied.
13. Complaint Procedures
It is Salted Caramel Studio (SCS) ’s aim to obtain, either formally or informally, a regular assessment of its performance of the Engagement from the Client. Your Engagement team will always be pleased to hear any suggestions as to how our service can be improved. If you wish to make a complaint, please call or write to the Design Director in the first instance.
14. Governing Law and Jurisdiction
The Agreement shall be governed and construed in accordance with the law of the State of Victoria Australia. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the Courts of the State of Victoria for determining any disputes or proceedings arising out of or in connection with this Agreement.