Design Terms & Conditions
Unless otherwise specified in project/engagement agreements, the following terms and conditions apply to all design engagements undertaken by Vermilian.
Basic Terms & Conditions: Design Work
As used herein and throughout this Agreement:
1.1 “Agreement” means the entire content of this Basic Terms and Conditions document, the Brief/Request/Proposal document(s), together with any other supplements, exhibits, schedules or attachments hereto.
1.2 “Vermilian” means Vermilian Pty Ltd (ABN 93 096 179 216) of Level 8, 171 Clarence St, Sydney, NSW 2000.
1.3 “Client” means [insert name] of [insert address].
1.4 “Client Content” means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.
1.5 “Copyrights” means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under Australian Copyright Law.
1.6 “Creation Files” means all underlying artwork files used in the creation of Final Deliverables eg Photoshop, Illustrator, InDesign, Flash files, photography and images etc.
1.7 “Deliverables” means the services and work product specified or commissioned to be delivered by Vermilian to Client, in the form and media specified in the Brief/Request/Proposal.
1.8 “Designer Tools” means all design tools developed and/or utilised by Vermilian in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as Website design, architecture, layout, navigational and functional elements.
1.9 “Effective Date” means the date the Brief/Request/Proposal is signed by Client.
1.10 “Final Deliverables” means the final versions of Deliverables provided by Vermilian and accepted by Client. It includes all creative content developed or created by Vermilian, or commissioned by Vermilian, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Vermilian’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.
1.11 “Preliminary Works” means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternative or preliminary designs and documents developed by Vermilian and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Deliverables.
1.12 “Project” means the scope and purpose of the Client’s identified usage of the work product as described in the Brief/Request/Proposal.
1.13 “Brief/Request/Proposal” means the written and or verbal instruction provided by Client in relation to the Project.
1.14 “Services” means all services and the work product to be provided to Client by Vermilian as described and otherwise further defined in the Brief/Request/Proposal.
1.15 “Third Party Materials” means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography or illustration.
1.16 “Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.
The terms of the Brief/Request/Proposal shall be effective for thirty days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Brief/Request/Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
3. FEES AND CHARGES
In consideration of the Services to be performed by Vermilian, Client shall pay to Vermilian fees in the amounts and according to the payment schedule set forth in the Brief/Request/Proposal, and all applicable taxes, even if calculated or assessed subsequent to the payment schedule.
Client shall pay Vermilian’s expenses incurred in connection with this Agreement as follows: (a) incidental and out-of pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, and taxis at cost, and, if applicable, a kilometre reimbursement at Vermilian’s standard rate per km; and (b) travel expenses including transportation, meals, and lodging, incurred by Vermilian with Client’s prior approval. Vermilian will not incur expenses in excess of $300 per item without the express permission of Client.
3.3 Additional Costs.
The Project pricing includes Vermilian’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licences, prototype production costs, talent fees, music licences, and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Brief/Request/Proposal.
All invoices are payable within seven (7) days of receipt. Vermilian reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any licence to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges or the costs of Changes.
4.1 General Changes.
Unless otherwise provided in the Brief/Request/Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Vermilian’s standard hourly rate. Such charges shall be in addition to all other amounts payable under the Brief/Request/Proposal, despite any maximum budget, contract price or final price identified therein. Vermilian may extend or modify any delivery schedule or deadlines in the Brief/Request/Proposal and Deliverables as may be required by such Changes.
4.2 Substantive Changes.
If Client requests or instructs Changes that amount to a revision in or near excess of twenty-five percent (25%) of the time required to produce the Deliverables, and or the value or scope of the Services, Vermilian shall be entitled to submit a new and separate Brief/Request/Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Brief/Request/Proposal and, if required, any additional retainer fees are received by Vermilian.
Vermilian will prioritise performance of the Services as may be necessary or as identified in the Brief/Request/Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Brief/Request/Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Vermilian. Vermilian shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Vermilian’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Brief/Request/Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or Vermilian’s obligations under this Agreement.
4.4 Testing and Acceptance.
Vermilian will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within five (5) business days of receipt of each Deliverable, shall notify Vermilian, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Brief/Request/Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Vermilian will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
5. CLIENT RESPONSIBILITIES
Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner: (a) coordination of any decision-making with parties other than Vermilian; (b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Brief/Request/Proposal; and (c) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.
Vermilian retains the right to reproduce, publish and display the Deliverables in Vermilian’s portfolios and Websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its Website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s Website.
7. CONFIDENTIAL INFORMATION
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Brief/Request/Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
8. RELATIONSHIP OF THE PARTIES
8.1 Independent Contractor.
Vermilian is an independent contractor, not an employee of Client or any company affiliated with Client. Vermilian shall provide the Services under the general direction of Client, but Vermilian shall determine, in Vermilian’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorised to act as agent or bind the other party except as expressly stated in this Agreement. Vermilian and the work product or Deliverables prepared by Vermilian shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
8.2 Vermilian Agents.
Vermilian shall be permitted to engage and/or use third party designers or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Vermilian shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.
8.3 No Exclusivity.
The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Vermilian, and Vermilian shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Vermilian.
9. WARRANTIES AND REPRESENTATIONS
9.1 By Client.
Client represents, warrants and covenants to Vermilian that:
(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content
(b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties
(c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.
9.2 By Vermilian.
(a) Vermilian hereby represents warrants and covenants to Client that Vermilian will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services
(b) Vermilian further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Vermilian and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Vermilian, Vermilian shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Vermilian to grant the intellectual property rights provided in this Agreement
(c) Except for the express representations and warranties stated in this agreement, Vermilian makes no warranties whatsoever. Vermilian explicitly disclaims any other warranties of any kind, either express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or compliance with laws or government rules or regulations applicable to the Project.
10.1 By Client.
Client agrees to indemnify, save and hold harmless Vermilian from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Vermilian shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defence and all related settlement negotiations; and
(b) Vermilian provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Vermilian in providing such assistance.
10.2 By Vermilian.
Subject to the terms, conditions, express representations and warranties provided in this Agreement, Vermilian agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Vermilian’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that:
(a) Client promptly notifies Vermilian in writing of the claim;
(b) Vermilian shall have sole control of the defence and all related settlement negotiations; and
(c) Client shall provide vermilianh the assistance, information and authority necessary to perform vermilianuo;s obligations under this section. Notwithstanding the foregoing, vermilianll have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorised content, improper or illegal use, or the failure to update or maintain any Deliverables provided by vermilian>
10.3 Limitation of Liability.
The services and the work product of vermilian sold “as is.” In all circumstances, the maximum liability of vermilians directors, officers, employees, design agents and affiliates (“vermilianties”), to Client for damages for any and all causes whatsoever, and Client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of vermilianthe Project. In no event shall vermilianliable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by vermilianen if vermilian been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
11. INTELLECTUAL PROPERTY PROVISIONS
11.1 Client Content.
Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith. Client hereby grants to vermilianonexclusive, non-transferable licence to use, reproduce, modify, display and publish the Client Content solely in connection with vermilianuo;s performance of the Services and limited promotional uses of the Deliverables as authorised in this Agreement.
11.2 Third Party Materials.
Client hereby indemnifies, saves and holds harmless vermilianm any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of failure to obtain copyright, licence, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Final Deliverables.
11.3 Preliminary Works.
vermilianains all rights in and to all Preliminary Works. Client shall return all Preliminary Works to vermilianhin thirty (30) days of completion of the Services and all rights in and to any Preliminary Works shall remain the exclusive property of vermilian>
11.4 Original Artwork.
vermilianains all right and title in and to any original artwork comprising Final Deliverables, including all rights to display or sell such artwork. Client shall return all original artwork to vermilianhin thirty (30) days of completion of the Services.
Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use and do not otherwise infringe the rights of any third party. Client hereby indemnifies, saves and holds harmless vermilianm any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.
11.6 Designer Tools and Creation Files.
All Designer Tools and Creation Files are and shall remain the exclusive property of Vermilian. Client may not directly or indirectly, in any form or manner, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Designer Tools or Creation Files of Vermilian.
11.7 Rights to Final Deliverables.
Upon completion of the Services, and expressly subject to full payment of all fees, costs and out-of-pocket expenses due, Vermilian assigns to Client the right to use the Final Deliverables solely for the purpose for which it is originally commissioned in the Brief/Request/Proposal. For the avoidance of doubt, Client may not directly or indirectly, in any form or manner, reproduce, decompile, reverse engineer, create derivative works or otherwise disassemble or modify any Final Deliverables without the express written consent of Vermilian.
12. TERM AND TERMINATION
12.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
12.2 This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:
(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.
12.3 In the event of termination, Vermilian shall be compensated for the Services performed through the date of termination in the amount of:
(a) any advance payment:
(b) a prorated portion of the fees due: or
(c) hourly fees for work performed by Vermilian or Vermilian’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
12.4 In the event of termination by Client and upon full payment of compensation as provided herein, Vermilian grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.
12.5 Upon expiration or termination of this Agreement:
(a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party: and
(b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Vermilian’s invoices may include, and Client shall pay, expenses or costs that Client authorises by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.
All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or e-mail, upon confirmation of receipt.
13.3 No Assignment.
Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.
13.4 Force Majeure.
Vermilian shall not be deemed in breach of this Agreement if Vermilian is unable to complete the Services or any portion thereof by reason of fire, earthquake, industrial dispute, act of God, death, illness or incapacity of Vermilian or any local, state, federal or international law, governmental order or regulation or any other event beyond Vermilian’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Vermilian shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.
13.5 Governing Law and Dispute Resolution.
The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of Australia and the state of New South Wales without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through a forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its legal fees and costs.
Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.
The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Brief/Request/Proposal and any other Agreement documents, the terms of the Brief/Request/Proposal shall control.