Terms of Service
The person or entity to which the Terms of Service letter, cost confirmation email, or other correspondence setting out our services (the “Cost Estimate Letter”) is addressed to (“you” and “your”) engages Skyline Creative Pty Ltd (ABN 61 604 149 064) (“Skyline”, “we”, “our” and “us”) to provide the Services, and we agree to provide the Services as described in the Cost Estimate Letter in accordance with these “Terms of Service” (the “Agreement”).
1. Definitions and Interpretations
1.1. In this Agreement, certain capitalised terms will, unless the context otherwise requires, have the meaning set out in clause 23.
2. Contract for Services
2.1. The Cost Estimate Letter outlines the services that we will provide (the “Services”). The Services may be more particularly described via emails that we send after you engage us. If there is any inconsistency between the Terms of Service and the Cost Estimate Letter, these Terms of Service prevail to the extent of that inconsistency.
2.2. If you require additional work and the scope of Services contained in the Cost Estimate Letter is altered or expanded, or you require a change to the scope of Services, then to ensure clarity and common understanding the parties will follow the process described in clause 5 below.
3. Our Obligations
3.1. We will use reasonable endeavours to carry out the Services and to ensure that the Work is adheres to your brief and is on time.
4. Your Obligations
4.1. All the information and subject matter that you supply us, such as any data, text, graphics or other materials that you wish to incorporate into the work we do for you and (together and separately, “Your Materials”) must be factually correct and must not infringe any laws or the rights of any person.
4.2. You must provide us with clear instructions, and assistance, information, ideas, content, suggestions, feedback and materials which are in your possession or control which we reasonably require to perform the Services.
4.3. You will pay us the Fee as set out in the Cost Estimate Letter, and upon our invoice. If you cancel or suspend the job, we are still entitled to the entire Fee.
5.1. If you want us to carry out additional work beyond the scope of Services or simply wish to vary the scope of our Services, and we agree in principle to that, the following procedure applies:
(a) you must provide a detailed explanation of the proposed revisions to the scope of work;
(b) if we agree, you will receive a confirmation email setting out the updated cost, and such confirmation email will form a part of this Agreement.
5.2. If you do not request a revision to the scope of work under the procedure above, then we can carry out the revised scope of work at our hourly rates from time to time and you must pay our invoice. (Note that there is an increased rate for work that is urgent or required to be provided outside normal office hours.)
6. Intellectual Property
6.1. You will retain all your Intellectual Property rights in Your Materials, but you grant us the right to use them to the extent required under this Agreement.
6.2. Once you have paid the Fee, we will grant you the right to use the material we deliver to you (the “Work”), including copyright in any artwork, photograph, video, copy or other literary, artistic and cinematographic work we supply in relation to a particular project (together, the “Work”) in accordance with clause 6.3.
6.3. We grant you a non-exclusive licence to use the Work throughout the World during the Term for the Approved Purpose within the Approved Media. All rights not specifically granted to you are retained by us. There shall be no restriction on our exploitation of the Work within any other media throughout the World.
6.4. You shall have no right to use the Work other than for the Approved Purpose. In the event that you wish to use the Work other than for the Approved Purpose or exploit the Work in any media other than the Approved Media, you shall seek full written approval and further licence from us on terms to be negotiated and agreed in good faith.
6.5. The aforesaid license is for the Approved Purpose within the Approved Media only and does not grant to you the right to change or adapt the Work, use the Work in any advertising campaign promoting your services generally or licence the Work to any third party whatsoever.
6.6. To the extent Your Materials are incorporated into the Work, you grant us a non-exclusive, irrevocable, royalty free licence in perpetuity to use Your Materials.
6.7. You acknowledge that we own the Work and may exploit the Work as and when we see fit in our sole discretion.
7. Confidential Information
7.1. You must not disclose, or make public any Confidential Information acquired in connection with, or by the performance of, this Agreement (except to professional advisors or as required by law), without obtaining our prior written approval.
7.2. You must immediately on demand, or on the expiration or termination of these Terms, return to us any documents in your possession, power or control containing Confidential Information. You must not retain copies of any Confidential Information in any form.
8. Exclusion and limitation of liability
8.1. We will not be (or be deemed to be) liable in default of the Agreement for any default, failure or delay resulting from an event, occurrence or cause beyond the control of a party and which occurs without the negligence of that party. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquakes, fire and explosions.
8.2. To the maximum extent permitted by law and save for those express written terms in this Agreement, all other terms (including any implied terms), conditions, warranties, statements, assurances and representations in relation to this Agreement are expressly excluded.
8.3. To the maximum extent permitted by law, all express or implied terms, conditions, warranties, statements, assurances and representations in relation to the Services and/ or the Work are expressly excluded. If any of the exclusions or limitations set out in this clause are declared illegal or void, or if you claim that there has been a breach of a term, condition, warranty, statement or assurance which cannot be excluded by this Agreement, to the maximum extent permitted by law, our entire liability and your exclusive remedy is limited, at our discretion, to:
(a) with respect to the supply of goods:
(i) the re-supply of the goods; or
(ii) the payment of the cost of having the goods re-supplied; and
(b) with respect to the supply of services:
(i) the re-supply of the services; or
(ii) the payment of the cost of having the services re-supplied,
but in any case, our maximum cumulative liability under this Agreement will not exceed an amount greater than the total Fees.
8.4. Subject to the preceding clause, in no event will we (including our agents, employees or contractors) be liable for any:
(a) direct loss; or
(b) indirect or consequential loss, (even if we are aware of the possibility of such loss or if such loss was otherwise foreseeable), (including, but not limited to, loss of profits, production, data, opportunity or goodwill; or business interruption) however caused and on any theory of liability, including without limitation, contract or tort (including negligence or otherwise) arising during and/or as a result of the performance or non-performance of this Agreement by us (all the foregoing collectively referred to in this Agreement as “Damage”).
8.5. Notwithstanding anything else in this Agreement, if any of the exclusions or limitations set out above are declared illegal or void, then to the extent permitted by law, our liability for breach of a condition or warranty implied into this Agreement by the Competition and Consumer Act 2010 (Cth) (also known as the Australian Consumer Law) (or otherwise) is limited, at our discretion, to either: supplying the services again, or repairing or replacing the Work in respect of the breach.
9. Your Indemnities
9.1. You will, at all times, indemnify us and our officers, employees and agents (in this clause referred to as “those indemnified”) from and against any loss (including without limitation all legal costs (on a solicitor/client basis) and expenses or liability incurred by any of those indemnified arising from any claim, demand, suit, action or proceeding (each a “Claim”) against any of those indemnified where such loss or liability arose out of, in connection with, or in respect of any breach of this Agreement by you.
10. Term and Termination
10.1. The Agreement continues until expiration of the Term unless terminated or extended in accordance with these Terms of Service and the Cost Estimate Letter.
10.2. We can terminate the Agreement for any reason by written notice to you (email is sufficient).
10.3. No breach of this Agreement is a material breach giving the other party the right to terminate this Agreement, unless:
(a) the party allegedly in breach is given written notice specifying the nature of the breach (this notice must be clearly headed “Breach of Agreement – Notice to Cure”); and
(b) the party receiving the notice fails to rectify the breach within 30 days of receipt of such notice.
10.4. On the termination of the Term of this Agreement, for any reason, you must:
(a) pay us any Fee currently owing;
(b) reimburse us for any expenses we incur; and
(c) forthwith deliver to us all products, goods and other materials in your possession or control that belong to us.
10.5. Termination of the Term of this Agreement will be without prejudice to any other rights which may have accrued to the terminating party.
10.6. Either party can terminate this Agreement by notice in writing to the other party if the other party:
(a) enters or resolves to enter any agreement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them otherwise than for the purposes of an amalgamation or reconstruction;
(b) goes into “administration” or appoints or has a “liquidator” appointed as those terms are defined in the Corporations Act 2001; or
(c) ceases to carry on its day-to-day business activities.
10.7. Notwithstanding any other provision of this Agreement, clauses 6, 8, 9, 10, 11, 12, 13, 14 and 15 will survive termination of this Agreement for any reason.
11. Consequences of Termination
11.1. On expiry or termination of this Agreement and subject to any other provisions to the contrary under this Agreement, both parties will be regarded as discharged from any further obligations under this Agreement save that such termination will not affect any rights or remedies that may have accrued to the parties prior to termination or consequent upon termination pursuant to this Agreement.
12. Assignment and Novation
12.1. You cannot assign any rights under this Agreement without our prior written consent. You cannot sub-contract any of your obligations under this Agreement without our prior written consent.
13.1. The parties agree and acknowledge that nothing in this Agreement constitutes a relationship of employer and employee, principal and agent, partnership or joint venture and that the relationship between the parties is one of independent contractors.
14.1. Part or all of any clause of this Agreement that is invalid, illegal or unenforceable will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.
15.1. Any delay or failure of either party at any time to exercise any power or right under this Agreement is not a waiver of its right at any later time to insist on performance of that or any other provision of this Agreement.
16. Further Assurances
16.1. You will promptly do and perform all further acts and execute and deliver all further documents, required by law or reasonably requested by us to give effect to this Agreement and the transactions contemplated by it.
17. Choice of law and jurisdiction
17.1. The construction, validity and performance of this Agreement will be governed in all respects by the law of New South Wales, and the parties submit unconditionally to the jurisdiction of the Courts of New South Wales.
18.1. This Agreement can be executed by electronic communications and in any number of counterparts and all such counterparts taken together will constitute one instrument. Each party can transmit to each other party’s nominated email address a facsimile scan of the signature page of the Agreement executed by the sending party, in portable document format (or “PDF”), which can be affixed by the receiving party to the final terms of this Agreement as evidence of the sending party’s execution of this Agreement. The parties acknowledge and agree that the above process will constitute both writing and signing this Agreement under the Electronic Transactions Act 2000 (NSW) and related Acts.
19. Entire agreement
19.1. In relation to the subject matter of the Agreement, the terms of the Agreement constitute the entire agreement of the parties and supersede and merge all prior agreements, representations or other understandings, written or oral, between the parties. The parties acknowledge that neither party gives any warranties or makes any representations other than those expressly set out in the Agreement. If any have been given by a party, the other party acknowledges they were not relied upon by the other in entering the Agreement.
20.1. A notice given by any party must be in writing and sent by post or hand delivered personally to the other party at the address for that party first appearing in this Agreement (or such other address as a party notifies the other from time to time). If sent by post, notice is deemed to have been received 4 days after posting, and if sent by fax, notice is deemed to have been given on receipt by the sending party of a successful transmission report. If sent by e-mail, and the sender’s e-mail client records that the email was sent to the addressee’s then-current and principal email address, the e-mail is deemed to have been given on the next day on which trading banks are open for business in Sydney, other than a Saturday or a Sunday, from the day the email was sent (in the absence of an actual server error in connection with the recipients email address which prevents the email being received).
21.1. Terms defined in the Costs Estimate Letter have the same meaning in these Terms of Service unless the context requires otherwise, and in this Agreement, the following words have the meanings set out below:
(a) Approved Media means the right to exploit the Work for the Approved Purpose within the following media:
(i) Your website;
(ii) Third party websites, provided the Work contains your branding alone and not a third party’s branding;
(iii) Your social media pages;
(iv) Your printed signboards;
(v) Your branded magazine;
(vi) Your flyers;
(vii) Your maildrop cards;
(viii) Your email newsletters; and
(ix) Third party magazines and third party publications provided the Work does not contain a third party logo attached to it.
(b) Confidential Information means:
(i) all information (regardless of its form) relating to the business of a party to this Agreement or its officers, employees, agents or contractors, which may be disclosed to, or learnt by the other party (whether before or after the execution of this Agreement) and which information:
(A) is by its nature confidential;
(B) is treated, or has been identified, as confidential; or
(C) would reasonably be regarded as confidential;
(ii) all copies, notes and records and all related information generated by the Recipient based on or arising out of the disclosure of the Confidential Information to the Recipient.
(c) Intellectual Property means any and all present and future intellectual and industrial property rights throughout the world including rights in respect of or in connection with any confidential information, copyright (including future copyright and rights in the nature of or analogous to copyright), moral rights, inventions (including patents), trade marks, service marks, designs, and circuit layouts, techniques and know-how, whether or not now existing and whether or not registered or registrable and includes any right to apply for the registration of such rights and includes all renewals and extensions.
(d) Property means the residential or commercial property detailed in the Cost Estimate Letter.
(e) Term means a period of two years from the date of the Cost Estimate Letter.
21.2. In this Agreement, unless an express contrary intention appears:
(a) headings are for convenience only and do not affect the interpretation of this Agreement;
(b) the singular includes the plural and vice versa;
(c) references to the word ‘include’ or ‘including’ are to be construed without limitation;
(d) a reference to:
(i) a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;
(ii) a document includes all amendments or supplements to that document;
(iii) a clause, term, party, schedule or annexure is a reference to a clause or term of, or party, schedule or annexure to this Agreement; and
(iv) a monetary amount is in Australian dollars;
(e) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it; and
(f) a reference to a statute includes an amendment or re-enactment to that legislation and includes subordinate legislation in force under it.