ELEGANT MEDIA CLIENT ENGAGEMENT AGREEMENT
This Fixed Price Agreement (‘Agreement’) is made between: Brightest Australia Pty. Ltd. [ACN 140 926 101] of 13/195 Wellington Road, Clayton, Victoria 3168 Australia, trading as Elegant Media (‘EM’)] (‘Developer’) and The recipient of the services (‘Client’)
1. Definitions and Interpretation
WHEREAS:
Definitions:
App means the mobile application for iOS and Android (and any associated services) described in the SOW.
Background IP means Intellectual Property owned by or licensed to a party before the Effective Date or developed independently of this Agreement [including Developer frameworks, tools and libraries] that may be used within or in conjunction with an App.
Business Day means a day other than a Saturday, Sunday or public holiday in the state of Victoria in Australia.
Client Content (‘Client Materials’) means any content, data, assets, logos, brand elements, copy, media or other materials provided by or on behalf of Client for the purposes of the App.
Code Freeze means the overall code of the App will be frozen and not be changed further by the Developer.
Deliverables means the items to be delivered under this Agreement [including Source Code, binaries, configurations, documentation, store assets and prototypes].
Feasibility Project means a study to evaluate requirements, options, and technical viability that culminates in a written report and recommendations.
Fixed Price means the arrangement as described in this Agreement. It is a fixed scope and fixed price arrangement, working towards an estimated deadline as set out in Schedule I.
goal means the stated objective as defined by the Client to the Developer, in so much as the stated objective must be quantified and clearly defined in order to be achievable and capable of completion as set out in the scope.
GST has the meaning in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property (also called ‘IP’) includes copyright, moral rights, trademarks, designs, patents, circuit layouts, database rights, trade secrets, algorithms and all similar rights.
Open‑Source Software (‘OSS’) means software governed by an open‑source licence.
O/S means operating system and may mean IOS, Andriod, Windows or any other applicable operating system.
PPSA and PPSR mean the Personal Property Securities Act 2009 (Cth) and its register.
scope means the current and agreed goal, steps to reach the goal and the steps broken down into tasks that are required to reach the goal.
Task means the current work item as under the current stage of the project scope.
Third‑Party Services means services, platforms and SDKs not owned by Developer [IE , Apple, Google, Firebase, Maps, and/or payment gateways].
UAT means user acceptance testing.
Interpretation
Headings are for convenience; singular includes plural; ‘including’ means ‘including without limitation’; references to legislation include amendments and re‑enactments.
2. Engagement & Structure
2.1 Engagement:
The Client engages the Developer to deliver the Services as described and agreed by the scope as set in Schedule I.
2.2 Out‑of‑scope:
Work not expressly included in the scope is excluded. Variations to the scope may only be by mutual agreement in writing and for additional cost as agreed in the same way.
3. Client Responsibilities:
3.1 Timely inputs:
Client will promptly provide access to stakeholders, environments, test data, credentials, and Client Content in agreed formats as requested by the Developer.
3.2 Client Content warranties:
Client warrants it owns or has rights to use Client Content, and its use will not infringe any third‑party rights or laws [IE privacy, defamation, Spam rules, where applicable]. The Client indemnifies Developer for third‑party claims arising from Client Content.
3.3 Developer accounts:
Client will maintain its own Apple and Google developer accounts and remains responsible for associated fees and compliance. If the Developer submits on its Client’s behalf, the Client authorises such use and remains responsible for account compliance.
4. Project Governance, Deliverables & Acceptance:
4.1 Method & reviews:
Work is delivered iteratively and the Client will be notified in the next regular update.
4.2 Revisions [design]:
Fixed Price projects allow up to a maximum of three revisions per project. Additional revisions will incur additional costs.
4.3 Acceptance:
The Client will review each Task and either accept or provide a feedback, up to a maximum of five feedback cycles.
5. Intellectual Property & Moral Rights
5.1 Background IP:
Each party retains its Background IP. Developer grants Client a non‑exclusive, worldwide, royalty‑free, perpetual licence to use Developer Background IP as embedded in the Deliverables to use and operate the App.
5.2 Open Source or Third‑Party Services:
The Developer will comply with applicable O/S licences, provide Third Party notices, and not include copyleft components that would require open‑sourcing the Client’s proprietary code without the Client’s prior written consent.
5.3 New IP:
The Client receives a non‑exclusive, worldwide, perpetual licence to use the Deliverables [and New IP] for its business purposes, subject to this Agreement and own the New IP to the extent allowed at law.
5.4 Moral rights consents:
The Developer will obtain moral rights consents from creators [employees and any sub-contractors] in order to allow reasonable modifications and non‑attribution where appropriate.
5.5 Portfolio use:
After public launch, the Developer may reference the project [name, logo, public screenshots] in its web portfolio unless Client denies this and this is recorded in the final SOW.
6. Privacy, Data & Security:
6.1 Privacy compliance:
To the extent Developer handles Personal Information for or on behalf of Client, Developer will comply with the Privacy Act 1988 (Cth), the Australian Privacy Principles.
6.2 Security baseline:
Formal penetration testing or certification is excluded by the Developer.
7. App Store Submission & Launch:
7.1 Submission:
Once completed, an App as developed under this Agreement will be submitted to the relevant store [if submission is included in the scope]. As such, the Developer will prepare store assets and submit using Client’s Apple or Google accounts [or act as their agent in doing this using their login]. Approval timing and decisions are at Apple or Google’s discretion; no guarantee of approval is given.
7.2 Policy or OS changes:
Post‑launch rejections or removals driven by platform policy changes or Client’s operations or content are able to be handled on a new task basis under a new agreement.
8. Warranties & ACL:
8.1 Developer warranties:
The Developer warrants it will provide services as under this Agreement using due care and skill.
8.2 ACL:
Nothing in this Agreement excludes, restricts or modifies any rights or remedies that cannot be excluded under the Australian Consumer Law, including consumer guarantees to the degree that ACL may apply as between the Developer and the Client.
8.3 Remedy:
Where a failure to comply with a consumer guarantee is not a major failure and where permitted by law, the Developer’s liability is limited to re‑supplying the services.
8.4 Defects process:
Client will notify defects in writing with examples; the Developer will take reasonable steps to correct defects within a reasonable time and as included in the scope.
9. Device & Platform Support:
9.1 iOS:
Supported on the current iOS major version and the immediately preceding version on the current and previous generation of Apple devices.
9.2 Android:
Supported on the current and immediately preceding Android major versions for the three most common device makes and models.
9.3 Other platforms
Supported only on the current version of the platform where the application or service is designed to operate in.
9. Support & Maintenance:
9.1 Support Period:
Support is included as described in the scope of this Agreement only. For further warranty, or for a month to month coverage, a Flexi Plan Agreement may additionally be requested by the Client. This means the Flexi Plan must be requested and active before any fixed scope agreement expires.
10. Liability & Indemnities:
10.1 Mutual cap:
Each party’s aggregate liability arising out of or in connection with this Agreement is capped at the Fees paid or payable up to the 1 month preceding the event giving rise to the claim. This is an essential term of this Agreement and incorporated in consideration of the current pricing offered to the Client.
10.2 No consequential loss:
For avoidance of doubt, neither party is liable for indirect or consequential loss [IE: loss of profit, revenue, data], except in respect of breach of confidentiality, privacy, or IP infringement indemnities that are proven and quantifiable losses.
10.3 IP indemnity by the Developer:
The Developer will indemnify the Client for third‑party claims that the Deliverables [as provided by Developer] infringe Australian IP rights, except to the extent caused by Client Content, Client modifications, misuse, or Third‑Party Services used in accordance with their licences.
10.4 Client indemnity:
The Client, therefore, indemnifies the Developer for third‑party claims arising from Client Content, the Client’s unlawful use of the App [if applicable] or Client‑directed features.
11. Confidentiality:
The Client and the Developer agree that mutual obligations to keep Confidential Information confidential, with customary exceptions [IE: legal compulsion, information in public domain not due to breach or disclosure to advisers under confidentiality].
12. Force Majeure:
Neither party is liable for delay or failure due to events beyond reasonable control, including war, terrorism, rebellion or requisition; cyber‑attack or hacking; radiation/contamination; natural disasters; national‑level strikes or industrial disputes; and declared pandemics or health emergencies. The affected party must notify the other, mitigate to the degree possible and resume performance as soon as practicable.
13. Term & Termination:
13.1 Term:
Commences on the Effective Date and continues monthly until cancelled by one of the parties as per this Agreement.
13.2 Termination for convenience:
The Client may not terminate a fixed price Agreement. If a Client refuses to pay the next stage payment, all work will cease and not resume until the Client makes the next scheduled payment. Works with payments in arrears will be closed or frozen at the decision of the Developer.
13.3 Timely payment:
This Agreement is contingent upon any payment due being paid on time or allowed to be debited from the Client payment account [depending on the payment arrangement in Schedule 1].
14. Notices:
Notices must be in writing and delivered by hand, post, or email to the addresses specified in the SOW; deemed receipt rules apply [by hand: on delivery; post: two Business Days after posting; email: when sent, subject to business hours].
15. General:
This is the entire agreement; amendment in writing signed by both parties; waiver must be in writing; severability; no partnership or agency; assignment by either party with prior written consent [not to be unreasonably withheld]; e‑signatures and counterparts permitted. (Unilateral variation deleted to avoid UCT risk.)
16. Governing Law:
The laws of Victoria govern this Agreement regardless of the location of the Client. The parties submit to the Courts of that jurisdiction or location.
Flexi Plan Service Agreement
ELEGANT MEDIA CLIENT ENGAGEMENT AGREEMENT
This Flexi Plan Agreement (‘Agreement’) is made between: Brightest Australia Pty. Ltd. [ACN 140 926 101] of 13/195 Wellington Road, Clayton, Victoria 3168 Australia, trading as Elegant Media (‘EM’)] (‘Developer’) and The recipient of the services (‘Client’)
1. Definitions and Interpretation
WHEREAS:
Definitions:
App means the mobile application for iOS and Android (and any associated services) described in the SOW.
Background IP means Intellectual Property owned by or licensed to a party before the Effective Date or developed independently of this Agreement [including Developer frameworks, tools and libraries] that may be used within or in conjunction with an App.
Business Day means a day other than a Saturday, Sunday or public holiday in the state of Victoria in Australia.
Client Content (‘Client Materials’) means any content, data, assets, logos, brand elements, copy, media or other materials provided by or on behalf of Client for the purposes of the App.
Code Freeze means the overall code of the App will be frozen and not be changed further by the Developer.
Deliverables means the items to be delivered under this Agreement [including Source Code, binaries, configurations, documentation, store assets and prototypes].
Feasibility Project means a study to evaluate requirements, options, and technical viability that culminates in a written report and recommendations.
Flexi Plan means this monthly subscription plan that provides retainer services for ongoing development, enhancement, and maintenance as set out in Schedule I. Includes Flexi Plan 1, 2 and 3.
GST has the meaning in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property (also called ‘IP’) includes copyright, moral rights, trademarks, designs, patents, circuit layouts, database rights, trade secrets, algorithms and all similar rights.
Open‑Source Software (‘OSS’) means software governed by an open‑source licence.
O/S means operating system and may mean IOS, Andriod, Windows or any other applicable operating system.
PPSA and PPSR mean the Personal Property Securities Act 2009 (Cth) and its register.
Task means the current work item as under Flexi Plan 2 or Flexi Plan 3 [or Marketing Plan].
Third‑Party Services means services, platforms and SDKs not owned by Developer [IE , Apple, Google, Firebase, Maps, and/or payment gateways].
UAT means user acceptance testing.
Interpretation
Headings are for convenience; singular includes plural; ‘including’ means ‘including without limitation’; references to legislation include amendments and re‑enactments.
2. Engagement & Structure
2.1 Engagement:
The Client engages the Developer to deliver the Flexi Plan Services as described and agreed, time to time; IE in kick-off or fortnightly meetings.
2.2 Lifecycle:
Unless otherwise agreed, the project will be a month-to-month venture that only terminates with 30 days’ written notice.
2.3 Out‑of‑scope:
Work not expressly included in the Flexi Plan is excluded and may be proposed via email to the Developer. This may, however, attract additional cost.
3. Client Responsibilities:
3.1 Timely inputs:
Client will promptly provide access to stakeholders, environments, test data, credentials, and Client Content in agreed formats as requested by the Developer.
3.2 Client Content warranties:
Client warrants it owns or has rights to use Client Content, and its use will not infringe any third‑party rights or laws [IE privacy, defamation, Spam rules, where applicable]. The Client indemnifies Developer for third‑party claims arising from Client Content.
3.3 Developer accounts:
Client will maintain its own Apple and Google developer accounts and remains responsible for associated fees and compliance. If the Developer submits on its Client’s behalf, the Client authorises such use and remains responsible for account compliance.
4. Project Governance, Deliverables & Acceptance:
4.1 Method & reviews:
Work is delivered iteratively and the Client will be notified in the next regular update.
4.2 Revisions [design]:
Flexi Plan allows for ease of revision given it is not fixed scope in nature. Revisions are likely to increase the total time on any given project outcome.
4.3 Acceptance:
The Client will review each Task and either accept or provide a feedback.
5. Intellectual Property & Moral Rights
5.1 Background IP:
Each party retains its Background IP. Developer grants Client a non‑exclusive, worldwide, royalty‑free, perpetual licence to use Developer Background IP as embedded in the Deliverables to use and operate the App.
5.2 Open Source or Third‑Party Services:
The Developer will comply with applicable O/S licences, provide Third Party notices, and not include copyleft components that would require open‑sourcing the Client’s proprietary code without the Client’s prior written consent.
5.3 New IP:
The Client receives a non‑exclusive, worldwide, perpetual licence to use the Deliverables [and New IP] for its business purposes, subject to this Agreement and own the New IP to the extent allowed at law.
5.4 Moral rights consents:
The Developer will obtain moral rights consents from creators [employees and any sub-contractors] in order to allow reasonable modifications and non‑attribution where appropriate.
5.5 Portfolio use:
After public launch, the Developer may reference the project [name, logo, public screenshots] in its web portfolio unless Client denies this and this is recorded in the final SOW.
6. Privacy, Data & Security:
6.1 Privacy compliance:
To the extent Developer handles Personal Information for or on behalf of Client, Developer will comply with the Privacy Act 1988 (Cth), the Australian Privacy Principles.
6.2 Security baseline:
Formal penetration testing or certification is excluded by the Developer.
7. App Store Submission & Launch:
7.1 Submission:
Once completed, an App as developed under the Flexi Plan will be submitted to the relevant store. As such, the Developer will prepare store assets and submit using Client’s Apple or Google accounts [or act as their agent in doing this using their login]. Approval timing and decisions are at Apple or Google’s discretion; no guarantee of approval is given.
7.2 Policy/OS changes:
Post‑launch rejections or removals driven by platform policy changes or Client’s operations or content are able to be handled on a task basis [within Flexi Plan] or escalated to a fixed scope plan under a new agreement [if needed for many simultaneous tasks].
8. Warranties & ACL:
8.1 Developer warranties:
The Developer warrants it will provide services as under this Agreement using due care and skill.
8.2 ACL:
Nothing in this Agreement excludes, restricts or modifies any rights or remedies that cannot be excluded under the Australian Consumer Law, including consumer guarantees to the degree that ACL may apply as between the Developer and the Client.
8.3 Remedy:
Where a failure to comply with a consumer guarantee is not a major failure and where permitted by law, the Developer’s liability is limited to re‑supplying the services.
8.4 Defects process:
Client will notify defects in writing with examples; the Developer will take reasonable steps to correct defects within a reasonable time. This is only during an active Flexi Plan Agreement.
9. Device & Platform Support:
9.1 iOS:
Supported on the current iOS major version and the immediately preceding version on the current and previous generation of Apple devices.
9.2 Android:
Supported on the current and immediately preceding Android major versions for the three most common device makes and models.
9. Support & Maintenance:
9.1 Support Period:
Support is included in the month to month basis of the Flexi Plan task structure. This means the Flexi Plan must be active and paid to date.
10. Liability & Indemnities:
10.1 Mutual cap:
Each party’s aggregate liability arising out of or in connection with this Agreement is capped at the Fees paid or payable in the 1 month preceding the event giving rise to the claim. This is an essential term of this Agreement and incorporated in consideration of the current pricing offered to the Client.
10.2 No consequential loss:
For avoidance of doubt, neither party is liable for indirect or consequential loss [IE: loss of profit, revenue, data], except in respect of breach of confidentiality, privacy, or IP infringement indemnities that are proven and quantifiable losses.
10.3 IP indemnity by the Developer:
The Developer will indemnify the Client for third‑party claims that the Deliverables [as provided by Developer] infringe Australian IP rights, except to the extent caused by Client Content, Client modifications, misuse, or Third‑Party Services used in accordance with their licences.
10.4 Client indemnity:
The Client, therefore, indemnifies the Developer for third‑party claims arising from Client Content, the Client’s unlawful use of the App [if applicable] or Client‑directed features.
11. Confidentiality:
The Client and the Developer agree that mutual obligations to keep Confidential Information confidential, with customary exceptions [IE: legal compulsion, information in public domain not due to breach or disclosure to advisers under confidentiality].
12. Force Majeure:
Neither party is liable for delay or failure due to events beyond reasonable control, including war, terrorism, rebellion or requisition; cyber‑attack or hacking; radiation/contamination; natural disasters; national‑level strikes or industrial disputes; and declared pandemics or health emergencies. The affected party must notify the other, mitigate to the degree possible and resume performance as soon as practicable.
13. Term & Termination:
13.1 Term:
Commences on the Effective Date and continues monthly until cancelled by one of the parties as per this Agreement.
13.2 Termination for convenience:
Either party may terminate with 30 days’ notice. Client will pay for Services performed and committed third‑party costs up to the effective date of termination.
13.3 Active Plan:
This Agreement is contingent upon the Plan being paid on time each month as debited from the Client payment account. Plans that are not fully paid or in arrears will be closed or frozen at the decision of the Developer.
13.4 Effect of termination:
The Client agrees to pay all amounts due up to termination; the Developer delivers work‑in‑progress are paid.
13.5 Data retention or deletion:
The Developer will retain project data for 12 months after termination [unless otherwise required by law], after which it may delete archives other than accounting records.
14. Notices:
Notices must be in writing and delivered by hand, post, or email to the addresses specified in the SOW; deemed receipt rules apply [by hand: on delivery; post: two Business Days after posting; email: when sent, subject to business hours].
15. General:
This is the entire agreement; amendment in writing signed by both parties; waiver must be in writing; severability; no partnership or agency; assignment by either party with prior written consent [not to be unreasonably withheld]; e‑signatures and counterparts permitted.
16. Governing Law:
The laws of Victoria govern this Agreement regardless of the location of the Client. The parties submit to the Courts of that jurisdiction or location.
