Conditions of supply
In these Conditions:
1.1 Agency Assets means any assets or Materials used by FVC in the provision of the Services that are not Deliverables, including Materials created, developed, prepared, produced, purchased or acquired by FVC independently of the Services and/or not specifically for the Client.
1.2 Australian Consumer Law means the law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
1.3 Authorised Persons means the Recipient’s officers, employees, financiers and contracted professional advisers who reasonably require access to Confidential Information for the purposes of this Contract.
1.4 Business Day means a day that is not a Saturday, Sunday or public holiday in South Australia.
1.5 Confidential Information means all Information relating to the affairs of the Provider disclosed or made available to the Recipient or an Authorised Person by or on behalf of the Provider for the purposes of this Contract and includes:
1.5.1 Information that is by its nature confidential;
1.5.2 Information that is identified as confidential;
1.5.3 Information that the Recipient or Authorised Person knows or ought to know is confidential;
1.5.4 Information comprised in or relating to any Intellectual Property Rights of the Provider or any other person;
1.5.5 Information relating to the financial position of the Provider or any other person;
1.5.6 Information that has any actual or potential commercial value to the Provider or to any other person; and
1.5.7 Derived Information
but excludes any information forming part of the Deliverables.
1.6 Client means the Client specified in the Quotation or if there is no such quotation, or there is no Client specified in the quotation, the receiver of the Services from FVC and includes any servants, agents, or contractors acting on behalf of the Client where the context permits.
1.7 Client Materials means any Materials provided to FVC by the Client in connection with the Contract.
1.8 Conditions means these terms and conditions.
1.9 Consequential Loss includes any loss of data or profits, loss of anticipated savings, economic loss or interruption of business or any other indirect or consequential loss.
1.10 Consumer means a “consumer” as that term is defined in Section 3 of the Australian Consumer Law.
1.11 Consumer Guarantees means the consumer guarantees under the Australian Consumer Law.
1.12 Contract means a contract for the supply of Services in accordance with these Conditions, as evidenced by the acceptance of any Quotation in accordance with clause 3 from the Client to FVC, and where the context permits includes a Maintenance Contract as defined in clause 8.4.
1.13 Deliverables means any Materials created, developed, prepared or produced by FVC and provided for the purposes, and in the process, of the provision of Services but excluding all Agency Assets, Client Materials and any software (including its object and source code) unless it is expressly included in the Deliverables under the Contract.
1.14 Derived Information means any information derived or produced by the Recipient or any Authorised Person wholly or partially from any Confidential Information.
1.15 Disbursements means third party costs incurred by FVC on behalf of the Client which from time to time may be listed in the Quotation or otherwise advised to the Client by FVC in writing.
1.16 Digital Execution Program means any program approved by FVC from time to time for the electronic signing of documents, including but not limited to AdobeSign or DocuSign.
1.17 End Date means the end date specified in the Quotation, unless automatically renewed in accordance with clause 6.2.
1.18 FVC means Stillitano Enterprises (SA) Pty Ltd (ACN 146 307 637) as trustee for the F & D L Stillitano Family Trust trading as Flux Visual Communication.
1.19 Implied Terms means any guarantees, conditions, warranties or other terms implied by any Australian Commonwealth, State or Territory laws (excluding the Australian Consumer Law), or the laws of any other jurisdiction.
1.20 Information means information of any nature, knowledge, technology, ideas, technical data, concepts, techniques, processes, formulae, expertise, models, drafts and diagrams, drawings, computer programs, source codes, object codes, user manuals, programming manuals, modification manuals, flow charts, software listings, trade secrets, inventions, discoveries, designs, methods, knowhow, and any other scientific, computing, technical or manufacturing information and data whether recorded or not.
1.21 Intellectual Property and Intellectual Property Rights include property and rights in connection with copyright (including future copyright and rights in the nature of or analogous to copyright), know-how, trade mark, service mark, design, inventions (including patents), semi-conductor or circuit layout rights, trade, business or company names, or other proprietary rights, or any rights to registration of such rights (including all renewals and extensions) whether created before or on or after entering into a Contract with FVC.
1.22 Liabilities means liabilities, losses, damages, actions, causes of action, arbitrations, claims, orders, judgments, outgoings, costs (including legal costs calculated on a solicitor and own client basis) and expenses, whether present or future, actual or contingent.
1.23 Materials includes documents, information, data, content, subject matter, artwork, copy, layouts, designs, storyboards, items, works, materials, recordings, films, other matter and materials and Intellectual Property Rights.
1.24 Proposed Deliverables means all ideas, concepts, approaches, formats, submissions and Materials presented or provided in any manner to the Client by FVC, including where provided on a “pitch” or proposal basis and which do not form part of the final Deliverables provided to the Client.
1.25 Provider means a party who discloses or authorises the disclosure of Information for the purposes of this Contract.
1.26 Quotation means a quotation supplied by FVC to the Client in respect of any Services proposed to be provided to the Client.
1.27 Recipient means a party to whom Information is disclosed for the purposes of this Contract.
1.28 Services means the services and Deliverables provided by FVC, (which may include, Google Ads, social media services, graphic design and website development) to the Client from time to time and which are the subject of a Quotation.
1.29 Start Date means the start date for the Services as outlined in the Quotation.
1.30 Term means the term during which FVC will provide the Services to the Client, which will commence on the Start Date and end on the earlier of the End Date and the date of cancellation of the Contract in accordance with these Conditions.
1.31 Third Party Materials means Materials used in the provision of the Services that are owned or provided by a third party, including without limitation any specified in the Contract, commissioned works, open source and public domain software or content.
2.1 These Conditions apply to all Services provided by FVC from the date of publication of these Conditions to FVC’s Clients and the Client is deemed to have read and accepted these Conditions when accepting a Quotation in accordance with clause 3.
2.2 These Conditions shall prevail over all inconsistencies in a Quotation, unless FVC expressly agrees otherwise and that agreement is acknowledged in writing.
2.3 FVC may vary these Conditions at any time and any such variations will have effect from the date of publication to the Clients of FVC.
3. ACCEPTANCE OF THE CONTRACT
The Client is deemed to have accepted the Quotation provided by FVC and the terms of the Contract by:
3.1 acceptance by e-signing through any Digital Execution Program;
3.2 signing and returning the acceptance contained in the Quotation;
3.3 making any payment or part-payment to FVC for the Services;
3.4 instructing FVC verbally to commence or continue providing the Services;
3.5 providing a written acceptance, whether by post, email correspondence, fax or other means, stating that the Client accepts the Quotation or instructing FVC to commence providing the Services; or
3.6 paying any invoices for payment issued by FVC calculated by the terms of the Contract.
4. PROVISION OF THE SERVICES
4.1 Any timeframes for provision of the Services made known to the Client are estimates only and FVC is not liable for late provision or non-provision of the Services.
4.2 The Client may cancel an accepted Quotation for Services if FVC is unable to deliver the Services within 90 days of any specified timeframe for the provision of Services.
4.3 Except where clause 4.2 applies:
4.3.1 FVC is not liable for any loss, damage or delay occasioned to the Client or its customers arising from late or non-provision of the Services;
4.3.2 late provision or non-provision does not vary these Conditions or relieve the Client from its obligations to accept and pay for the Services.
5. INFORMATION AND MATERIALS PROVIDED BY THE CLIENT FOR THE SERVICES
5.1 The Client is to provide FVC with any and all information, material and access that is reasonably requested by FVC (in the timeframe and manner specified by FVC) in order for FVC to provide the Services.
5.2 The Client warrants that such material or information provided is true and correct and that it does not violate any laws or infringe the rights of any third party.
5.3 If the Client fails to provide the information, access and/or materials within the timeframe specified by FVC then FVC, in its sole and absolute discretion, may charge the Client additional costs as a result of this delay.
5.4 The Client warrants that it owns or is licenced all Intellectual Property Rights in the information and/or materials provided and indemnifies FVC against any claim that may be made if the Client is in breach of this clause. The Client warrants that the information and/or materials provided is compliant with clause 22 of these Conditions.
6. TERM OF THE SERVICES AND AUTOMATIC RENEWAL
6.1 The Quotation will outline the Term for the Services to be provided by FVC to the Client, which Term will begin on the Start Date and end on the End Date unless cancelled earlier or extended in accordance with these Conditions.
6.2 The Term can be automatically renewed at any time by FVC advising the Client in writing of the extension of the Term, including the proposed extended term, pricing and payment details, and the Term will be automatically renewed in accordance with the terms of the written notice unless the Client advises FVC in writing within ten (10) Business Days of the date of such notice of automatic renewal that it does not wish for such automatic renewal of the Term to take place.
6.3 These Conditions will apply to any extension of the Term.
7. NO GUARANTEE OF SUCCESS OF THE SERVICES
FVC will exercise all due care and skill in performing the Services but makes no warranty that the delivery of the Services will:
7.1 result in their website being highly ranked organically or their Google Ads being the first that appear;
7.2 result in an increase in the business (and profits of the business) of the Client;
7.3 result in an increase in the exposure of the brand of the Client;
7.4 increase the social media following of the Client;
7.5 boost the public profile of the Client; or
7.6 result in the Client obtaining any other desired outcome.
8. WEBSITE DEVELOPMENT
8.1.1 FVC does not guarantee the integration, functionality and continual operation of third party integrations, applications, plug-ins and software (Third Party Platforms) that are installed on the Website. FVC will not be responsible for any loss or damage suffered or incurred as a result of such failure in these Third Party Platforms. The Client also acknowledges and agrees that their activities and use of these Third Party Platforms may be subject to additional terms of service for each Third Party Platform.
8.1.2 Unless specifically contemplated in a validly accepted Quotation, FVC does not warrant or guarantee that the Website created for the Client will include accessibility features or be compliant with any legal requirements to include accessibility features. The Client acknowledges and agrees that it will be up to the Client to request and procure any specific accessibility features on the Website, if required, and that it complies with any legal requirements in respect of accessibility features.
8.1.3 FVC recommends that the Client takes out their own insurance policy which covers cyber hacking and loss of business caused by any hacking, misuse or failure of the Client’s website.
8.1.5 Unless specifically contemplated in a validly accepted Quotation or otherwise agreed in writing, It is the Client’s responsibility to ensure that the domain name for the Website is secured and that they continue to renew and pay for the renewal of such domain name. If the domain server fails, FVC is indemnified by the Client for any and all liability, loss or damage that may be suffered as a result of such failure.
8.1.6 If a Client has an existing website and they ask FVC, as part of the Services, to make amendments or upgrades to that website then FVC does not guarantee that the amendments or upgrades it makes will work and will not be liable for any failure of that website.
8.1.7 The Client gives FVC permission to access and use their information in connection with third party services that are to be included on their Website and to store any login credentials for such third party services.
8.1.8 FVC is not responsible for the use of the Website by customers of the Client or the general public (End Users), or any information of End Users gathered by the Client or the Website. FVC provides no warranty that the Website will be adequately protected against illegal or inappropriate use or security breaches, and the client will be responsible for such occurrences. The Client is responsible to provide notification to their End Users, and to the relevant authorities if required, of any security breach.
8.1.9 Elements of the Website and Third Party Platforms may automatically update from time to time and the Client agrees to receive such updates.
8.1.10 FVC does not warrant that any website it creates for the Client (Website) will be mobile responsive for all devices nor does it guarantee that the Website created will be suitable for every website browser.
8.2 Building the Website
8.2.1 Any transfer of information, data or software, including the contents of an previous website of the Client) will be at the sole and absolute risk of the Client and if any data is lost through this process then the Client will indemnify FVC for any resulting loss or damage as a result of the same.
8.2.2 The number of revisions of the draft Website that will be offered by FVC to the Client will be outlined in the Quotation. Any further amendments or revisions to the draft Website shall be the subject of a further Quotation, which may refer solely to FVC’s hourly professional rates.
8.3 Handover of the Website
8.3.1 Once FVC has completed creation of the Website they will pass control of the Website over to the Client. From this point in time (unless clause 8.4 applies) FVC will no longer be involved in the maintenance, updating and operation of the Website. The Client will be responsible for all ongoing maintenance and updating of The website and FVC will not be liable for any failure of the Website, or for any error caused by the Client failing to operate or update the Website correctly.
8.3.2 Upon completion and hand-over of the Website by FVC:
(a) the Website will be owned by the Client, subject to FVC retaining intellectual property rights in the Website design in accordance with clause 22;
(b) the Client will be responsible for all backup and security of the Website; and
(c) any further Services of FVC (whether relating to the Website or otherwise) which may be required by the Client after the Website is handed over will be charged at FVC’s hourly rate, which FVC will advise to the Client in writing (unless otherwise agreed).
8.3.3 FVC will be in no way liable for any loss, damage, demand, liability, claim or expense made against or incurred by the Client by any third party as a result of the Client’s use of the Website, including the content posted on the Website.
8.4 Website Maintenance
Where a Client requests that FVC provide ongoing maintenance services in relation to a Website:
8.4.1 FVC will provide a proposed maintenance plan for that Website which shall include (without limitation) details of the maintenance services to be undertaken in relation to the Website (Maintenance Services) and a further Quotation for the completion of such Maintenance Services (Maintenance Contract);
8.4.2 FVC shall not be bound to perform any obligations contained in a Maintenance Contract until such Maintenance Contract is accepted by the Client in a manner contained in clause 3;
8.4.3 any timeframes for the completion of Maintenance Services under a Maintenance Contract shall be indicative only;
8.4.4 the Client agrees to provide all assistance reasonably required by FVC to carry out the Maintenance Services, including by promptly:
(a) providing any information reasonably requested by FVC in relation to the Maintenance Services; and
(b) providing FVC with access to the Website for the purpose of Providing the Maintenance Services (including access to any web hosting account in relation to the Website); and
8.4.5 FVC shall not be liable for any defect in the Website or delay in provision of the Maintenance Services arising due to any act or omission of the Client.
9. GRAPHIC DESIGN SERVICES
9.1 FVC offers a range of graphic design services, including logo development, brand design, print design and package design which may be included in the Services. However, FVC makes no warranty that any Services and related Deliverables provided to the Client will result in increased sales or business for the Client.
9.2 Subject to clause 9.3, FVC will use reasonable endeavours to ensure that any Deliverables provided to the Client do not unlawfully infringe on the registered intellectual property rights of any third party.
9.3 Any Services and related Deliverables of FVC are provided on the basis of the information, instructions and Client Materials provided by the Client in accordance with clause 5. FVC are not intellectual property experts and the Client is responsible for ensuring that any Services and Deliverables commissioned by the Client do not, and are not used in a way which may, infringe on the intellectual property rights of a third party.
10. CLIENT APPROVAL
10.1 In the course of the performance of the Services, FVC may from time to time request specific approval, authorisation, agreement or consent from the Client (Client Approval) for the Deliverables or other elements of the Services, in which case:
10.1.1 FVC will (as applicable) provide details or copies of the Deliverables or Services and any other relevant information to the Client;
10.1.2 the Client must not unreasonably withhold or delay the Client Approval; and
10.1.3 where FVC requires the Client Approval, or has agreed that a Client Approval should be provided, in a specific form (such as in writing) FVC will be entitled to proceed on the basis that Client Approval has not been provided until given in that form.
10.2 The Client agrees to provide FVC with clear, timely written instructions when required by FVC in relation not the Services and to promptly comply with any reasonable request by FVC for any facts or Materials necessary for the provision of the Services.
10.3 The Client shall be responsible for any delay to the provision of the Services (including any additional fees and charges, whether chargeable by FVC or a third party supplier) if the Client fails to provide a Client Approval in a timely manner.
11. CLIENT WARRANTIES
The Client warrants and represents that:
11.1 the use of any Client Materials by FVC in accordance with the Contract (including these Conditions) will not infringe the rights (including Intellectual Property Rights) of any third party;
11.2 the Client Materials will not contain any material that:
11.2.1 is false, misleading or deceptive or likely to mislead or deceive;
11.2.2 is illegal, contrary to or in breach of any laws;
11.2.3 is indecent, obscene, offensive, objectionable, threatening, discriminatory, harassing, defamatory, or in breach of confidence or any other obligation owed to a third party;
11.2.4 contains any virus or other malicious software; or
11.2.5 would require FVC to hold any financial services or other licences.
12. AUSTRALIAN CONSUMER LAW
Where the Client is provided Services as a Consumer:
12.1 the Services are supplied subject to the Consumer Guarantees;
12.2 if the Services fail to meet any Consumer Guarantee, the Client will be entitled to such rights and remedies as are permitted or provided in the Australian Consumer Law for such failure, to the extent that such rights and remedies cannot be lawfully excluded;
12.3 the Client may only exercise any right or remedy for breach of a Consumer Guarantee strictly in accordance with the rights and responsibilities of the Client under the Australian Consumer Law.
13. GENERAL LIMITATION ON LIABILITY
13.1 This clause 13 does not limit the liability of FVC under the Australian Consumer Law.
13.2 FVC shall not be liable for any guarantee, warranty or representation as to the quality, performance, and fitness for purpose or otherwise of any Services unless expressed in writing and any such warranty or representation shall be limited to its express terms.
13.3 None of the Implied Terms apply to any Contract except to the extent that they cannot be lawfully excluded.
13.4 FVC’s liability for breach of any provision of any such Contract or for breach of any Implied Terms which by force of law cannot be excluded from applying to any such Contract is limited at the option of FVC to repairing or re-supplying the Services which have been found defective, or, paying the cost of re-supplying the Services which have been found defective.
13.5 FVC is not liable in tort for any loss or damages suffered by the Client or by any third party.
13.6 In no circumstance whatsoever shall FVC be liable to the Client or to any third party for any Consequential Loss in connection with any Contract or Implied Terms and the Client will keep FVC fully indemnified against any claim made against FVC by the Client or a third party for Consequential Loss.
14. PRICES AND GST
14.1 Unless otherwise stated all prices quoted by FVC are net, exclusive of Goods and Services Tax (GST).
14.2 GST applies to the provision of Services by FVC and the amount payable by the Client will be increased by a percentage equal to the prevailing of GST rate at the time of delivery of the Services.
14.3 FVC may amend their pricing at any time by giving prior written notice to the Client of such amendment.
15.1 Any disbursements incurred by FVC in providing the Services to the Client will be due and payable by the Client and will be in addition to the price of the Services provided by FVC unless otherwise advised in writing.
15.2 FVC may require such Disbursements, whether estimated or actual pricing, to be paid for in part or in full before FVC incurs any Liability for the Disbursements.
15.3 The Client irrevocably authorises FVC to provide their information, including their credit card information, to the third party suppliers for the purpose of this Contract, and the Client indemnifies and releases FVC in respect of any claim or liability that arises from any fraud or misuse of their credit card details that occurs through no fault of FVC.
15.4 The Client must indemnify FVC against all Liabilities incurred as a result of any failure by the Client to reimburse FVC for Disbursements under this clause.
15.5 FVC will not be liable to the Client for any price amendment of any third party and if a third party amends their pricing then the Client must pay this new pricing.
16.1 FVC reserves the right to charge the Client for costs incurred resulting from the Client varying its instructions, correcting any errors or omissions referred to in clause 16.2, or requiring Services urgently.
16.2 FVC will supply the Services on the basis of the Quotation and the information provided by the Client. FVC will not be responsible for any errors or omissions resulting wholly or partially from incomplete or unclear instructions or information provided by the Client.
16.3 The Quotation will specify the proposed payment terms between FVC and the Client.
16.4 All amounts payable to FVC by the Client must be paid in Australian dollars, unless otherwise specified in the invoice issued by FVC, in any manner required by FVC in writing and in full without set-off on or before the due date for payment.
16.5 Any costs or charges incurred by FVC in collecting or attempting to collect overdue amounts must be paid by the Client to FVC on demand.
16.6 FVC reserves the right to charge interest at the rate of 12% per annum on all overdue amounts owing to it. Such interest will accrue daily and is payable on demand.
16.7 Payment will not be taken to occur until all cheques tendered or electronic funds transfer in discharge of amounts owing to FVC have been presented or received and cleared in full.
17. ADMINISTRATION FEE
FVC reserves the right to charge the Client a reasonable administration fee for issuing any duplicate invoices, statements or other documents requested by the Client, where such document has previously been provided by FVC.
18.1 Subject to clause 5.3, all Quotations are valid for 30 days from the date of Quotation.
18.2 FVC reserves the right to charge the Client for any costs incurred as a result of the Client varying its Quotation or the Contract, correcting any errors or omissions referred to in clause 18.3, or requiring Goods urgently.
18.3 FVC will supply the Services on the basis of the Quotation (whether written or oral). FVC will not be responsible for any errors or omissions in relation to the Services where those errors or omissions result wholly or partially from incomplete or unclear instructions provided by the Client.
18.4 The Quotation will outline any exclusions from the Services.
19.1 FVC may cancel any Contract any time before Services are provided by giving written notice to the Client. On giving such notice, FVC will repay to the Client any sums paid in respect of the Services. FVC will not have any other liability in respect of such cancellation.
19.2 Subject to clause 4.2, the Client may only cancel a Contract in the following circumstances:
19.2.1 by providing thirty (30) days notice in writing of such cancellation; or
19.2.2 at any time with FVC’s prior written consent.
19.3 In the event that the Client cancels a Contract otherwise than under clause 4.2:
19.3.1 FVC may retain any deposit or other sums paid on account of the Services; and
19.3.2 if payment is not already made in full, the Client will be responsible for any losses incurred by FVC in respect of such cancellation (including loss of profits, loss of anticipated savings, economic loss or interruption of business loss or other incidental, consequential or indirect damages).
19.4 In the event the Client cancels a Contract under clause 4.2, FVC will repay to the Client any sums paid in respect of the Services. FVC will not have any other liability in respect of such cancellation.
20. SUSPENSION OR TERMINATION OF SERVICES BY FVC
20.1 If the Client makes a default in any payment due to FVC, commits any act of bankruptcy or enters into liquidation whether voluntary or involuntary, FVC may in its absolute discretion, suspend supply of any Services to the Client or cancel any Contract with the Client, without prejudice to any other rights of FVC.
20.2 No default by the Client or action taken by FVC under clause 20 will prejudice any rights of FVC against the Client whatsoever, including any right to recover any amounts due for Services previously provided by FVC to the Client.
21. CONFIDENTIAL INFORMATION
21.1 The Recipient agrees in favour of the Provider that during the term of this Contract, and after the expiration of this Contract, that all Confidential Information provided to the Recipient or of which the Recipient becomes aware as a result of this Contract:
21.1.1 will be kept strictly confidential;
21.1.2 will not without the Provider’s consent:
(a) be disclosed or divulged to any third party;
(b) be copied or reproduced;
(c) be used for any purpose or enterprise other than for the purpose of this Contract;
21.1.3 will be safely and securely stored when not in use; and
21.1.4 will remain the absolute and exclusive property of the Provider.
21.2 This duty of confidence does not extend to Confidential Information:
21.2.1 which is known to the Recipient at the date of this Contract;
21.2.2 which comes into the public domain after the date of the Contract otherwise than as a result of a breach of the Contract by the Recipient;
21.2.3 which is disclosed to the Recipient by a third party with the right to do so or which is required by law to be disclosed, provided that the Recipient notify the Provider as soon as such Confidential Information becomes known to the Recipient; or
21.2.4 which is disclosed by the Recipient as required by law.
21.3 The Recipient bears the onus of proof of the matters referred to in clause 21.2.
21.4 The Recipient must bind its Authorised Persons, employees, and permitted agents and subcontractors (if any) who have access to the Confidential Information to comply with all the Recipient’s obligations under this clause.
21.5 The Recipient must indemnify the Provider against all Liabilities in respect of any breach of this clause 21 by the Recipient or any Authorised Persons, employees or permitted agents or subcontractors of the Recipient.
22. INTELLECTUAL PROPERTY
22.1 Pre-Existing Intellectual Property
Notwithstanding any other clause of this Contract, the ownership of the Intellectual Property Rights in any item which exists prior to the commencement, or is created independently, of this Agreement (Pre-Existing IP) will not be altered transferred or assigned merely by virtue of a party using that item for the purposes of this Contract.
22.2 Licence to use Pre-Existing IP
To the extent that the Pre-Existing IP owned by FVC is incorporated into the provision of any Services, in accordance with this Contract, unless those items are licensed to the Client under a separate agreement with FVC, FVC grants a non-exclusive, world-wide, royalty free and revocable licence to the Client to use the Pre-Existing IP, but only to the extent necessary for the purpose of obtaining the full benefit and use of the Services as contemplated by the Contract.
22.3 Ownership of Intellectual Property Rights in the Deliverables
22.3.1 Subject always to the Client paying all amounts payable to FVC under the Contract, FVC may:
(a) assign to the Client the Intellectual Property Rights in any Deliverables and acknowledges that the Client will be the owner of such Intellectual Property Rights; or
(b) grant the Client an exclusive, non-transferrable licence to use the Deliverables for the purpose of advertising and marketing the Client’s business throughout Australia (or such other purpose as contemplated by the Contract,
as specified in the Contract (and if not specified then clause 22.3.1(b) will apply).
22.3.2 FVC must use reasonable commercial endeavours to obtain in the Client’s favour on reasonable commercial terms;
(a) an assignment or exclusive licence; or
(b) if FVC is unable to secure an assignment or exclusive licence, a non-exclusive licence,
of all necessary Intellectual Property Rights for the use of Third Party Materials included in the Deliverables and the Client shall be responsible for any fees chargeable by third parties necessarily incurred to give effect to this clause 22.3.2.
22.3.3 This clause 22.3 does not apply to any part of the Services that is Pre-Existing IP.
22.4 Licence to the Client’s Intellectual Property
The Client grants a perpetual, irrevocable, non-exclusive, world-wide, non-transferrable, royalty free license to FVC (including the right to grant sub-licenses) in respect of:
22.4.1 the Client’s Intellectual Property Rights in or in relation to any Client Materials, but only to the extent necessary for the purpose of providing the Services as contemplated by this Contract; and
22.4.2 the Intellectual Property Rights in or in relation to any information or materials created by FVC and which is assigned to the Client pursuant to clause 22.4.3, with the authority to use the information or materials produced in providing services to other clients (provided such use does not infringe the Client’s Intellectual property Rights which are licensed pursuant to clause 22.4.1).
22.5 Intellectual Property Rights in Proposed Deliverables
All right, title and interest in all Intellectual Property Rights in any Proposed Deliverables belonging to FVC will remain or be vested in FVC and all Proposed Deliverables are deemed to constitute Confidential Information belonging to FVC until any Proposed Deliverables are included in a final Deliverable (at which time clause 22.3 applies). The Proposed Deliverables will be deemed to be included in or constitute Deliverables only if and to the extent they are accepted by the Client during the Term and form part of the Services.
22.6 Warranties by FVC
FVC warrants that neither:
22.6.1 the provision of the Services by FVC; or
22.6.2 the exercise of any rights under clause 22.2,
will infringe any Intellectual Property Rights of any third party.
22.7 Warranties by the Client
The Client warrants that neither:
22.7.1 the provision of the information and materials supplied by the Client or the Client’s Intellectual Property for the Services; or
22.7.2 the exercise of any rights under clause 22.4,
will infringe any Intellectual Property Rights of any third party.
23. PLACE OF CONTRACT
23.1 This Contract is made in the State of South Australia.
23.2 The parties agree that unless otherwise stipulated by FVC all disputes arising between them shall be submitted to the courts of the State of South Australia and any court competent to hear appeals from those courts of first instance.
24. DISPUTE RESOLUTION
24.1 Any dispute between the parties arising from the performance of the provisions of this Contract and any invoice for payment issued by FVC to the Client must be attempted to be settled between the parties by an authorised representative with authority from each party meeting within fourteen (14) days of notification of a dispute in writing from one party to the other party. Such meeting is to take place within the state of South Australia at a place nominated by FVC, or by any other means agreed between the parties.
24.2 If the meeting referred to in clause 24.1 does not result in the settlement of the dispute between FVC and the Client, the dispute must then be referred to mediation. The mediator is to be appointed by agreement between the parties and in the event that the parties agree to mediate but within seven (7) days of agreeing to such mediation cannot agree to the mediator to be appointed then the mediator is to be appointed by the then current President of the Law Society of South Australia. The costs of any mediation are to be borne equally between the parties.
24.3 If the dispute cannot be settled through mediation, or the parties do not both consent to a mediation, then either party is at liberty to commence legal proceedings.
24.4 During the period in which the dispute is being resolved, the parties must continue to perform all of the provisions of the Contract which are not under dispute.
25.1 Each party must immediately notify the other party if it becomes aware of any claim by a third party that any Deliverables or Services provided under the Contract infringes the rights of any person, or breaches any laws or the requirements of any authority, including any legal proceedings arising in connection with such a claim (Third Party Claim).
25.2 Each party must:
25.2.1 Reasonably cooperate with the other party in respect of any negotiations or defence regarding a Third Party Claim and provide to the other party such reasonable assistance or documentation as is requested by the other party in that regard (at the Client’s cost if the Client is responsible for the conduct giving rise to the Third Party Claim);
25.2.2 promptly provide the other party with updates regarding the status of the Third Party Claim upon reasonable request; and
25.2.3 not settle or consent to orders in relation to any Third Party Claim without the prior written consent of the other party, which consent must not be unreasonably withheld.
25.3 In the event of a Third Party Claim FVC will be entitled to procure for the Client the right to continue to use the relevant Deliverables or Services, or modify them in a manner reasonably acceptable to the Client, so that the infringement or breach or alleged infringement or breach ceases.
25.4 FVC reserves the right, at our absolute discretion and expense, to defend the Client or the parties jointly or settle any Third Party Claim brought against the Client. The Rights and options of FVC pursuant to this clause 25.4 are conditional on:
25.4.1 the Client notifying FVC in writing, as soon as reasonably practicable, of any Third Party Claim of which the Client has notice;
25.4.2 the Client not making any admission as to liability or compromise to any settlement of any Third Party Claim without the prior written consent of FVC (which consent shall not be unreasonably withheld or delayed); and
25.4.3 FVC having, at its own expense, the conduct of or the right to settle all negotiations and litigation arising from any Third Party Claim and the Client giving FVC all reasonable assistance in connection therewith.
26.1 A Contract may be altered in writing signed by each party.
26.2 Unless otherwise provided, a party may in its discretion give (conditionally or unconditionally) or withhold any approval or consent under a Contract.
26.3 The Client must not assign or otherwise deal with a Contract or any right under it without the written consent of the other party.
26.4 A Contract constitutes the entire agreement between the parties about its subject matter and supersedes any prior understanding, agreement, condition, warranty, indemnity or representation about its subject matter.
26.5 A waiver of a provision of or right under a Contract must be in writing signed by the party giving the waiver and is effective only to the extent set out in the written waiver.
26.6 The failure, delay, relaxation or indulgence by a party in exercising a power or right under a Contract is not a waiver of that power or right.
26.7 An exercise of a power or right under a Contract does not preclude a further exercise of it or the exercise of another right or power.
26.8 Each indemnity, obligation of confidence and other term capable of taking effect after the expiration or termination of a Contract, remains in force after the expiration or termination of the Contract.
26.9 If, during the Term or within 12 months after the termination or expiry of the Contract, without our written consent;
26.9.1 you induce or solicit (directly or indirectly) an employee or contractor of FVC who is working directly or indirectly in relation to the Services to terminate their employment or engagement with FVC; or
26.9.2 an employee or contractor of ours who is working directly or indirectly in relation to the Services commences employment (in any capacity) or is otherwise engaged by the Client (or any related or associated entity of the Client),
the Client must pay to FVC a recruitment fee of 35% of the annual gross salary or average annual contract fee (based on the previous 12 months) of that employee or contractor within 30 days after the date that the employee or contractor terminates their employment or engagement with FVC.
In these Conditions, unless the context otherwise requires:
27.1 headings do not affect interpretation;
27.2 singular includes plural and plural includes singular;
27.3 a reference to a party includes its executors, administrators, successors and permitted assigns;
27.4 a reference to a person includes a partnership, corporation, association, government body and any other entity;
27.5 an agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;
27.6 an agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;
27.7 a reference to legislation includes any amendment to it, any legislation substituted for it, and any subordinate legislation made under it;
27.8 a provision is not construed against a party only because that party drafted it;
27.9 an unenforceable provision or part of a provision may be severed, and the remainder of these Conditions continues in force, unless this would materially change the intended effect of these Conditions;
27.10 the meaning of general words is not limited by specific examples introduced by ‘including’, ‘for example’ or similar expressions.