ELEGANT MEDIA CLIENT ENGAGEMENT AGREEMENT
THIS AGREEMENT is made BETWEEN: BRIGHTEST AUSTRALIA PTY. LTD. (A.C.N. 140 926 101) of 38/195 Wellington Road, Clayton Victoria 3168, trading as Elegant Media (“EM”) AND the receiver of the services (“Client”).
ON THE BASIS THAT: –
THE PARTIES AGREE: –
In this Agreement, which includes the above Recitals, Quotation, Annexures (if any) and Schedule, the parties covenant and agree with each other as follows:
Background IP means Intellectual Property owned by or licensed to EM which is pre-existing or came into existence other than as a result of the Work. Background IP includes Provider Tools.
Brief means the directions given by the Client to EM as to what Work they require EM to complete including any details or specifications provided.
Client Materials means any and all content, information and materials whatsoever requested by EM of the Client and provided by the Client (including but not limited to digital content, documents, artwork, text, graphics, photography, databases, data, software programs and other materials).
Commencement Date is the date the Client makes the first initial payment.
Final Created Work means the final and completed and approved versions of software, websites, applications and/or other items created or prepared by EM in undertaking the Work for the Client but does not include all or any of the individual elements (including but not limited to soundtracks, design concepts, software code, source code, graphic elements, fonts, artwork, illustrations, logos, slogans, content and applications) that comprise the Final Created Work (whether or not those individual elements were pre-existing prior to the Work or were actually created prepared conceived or developed by the Client in the coursing of undertaking the Work).
Force Majeure means an event or circumstance which is beyond the control and without the fault or negligence of the party affected and which by the exercise of reasonable diligence the party affected was unable to prevent provided that event or circumstance is limited to the following:-
(a) riot, war, invasion, act of foreign enemies, hostilities (whether war be declared or not), acts of terrorism, civil war, rebellion, revolution, insurrection of military or usurped power, requisition or compulsory acquisition by any governmental or competent authority;
(b) ionising radiation or contamination, radio activity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive assembly or nuclear component;
(c) pressure waves caused by aircraft or other aerial devices travelling at sonic supersonic speeds; or
(d) earthquakes, flood, fire or other physical natural disaster; and
(e) strikes at national level or industrial disputes at a national level, or strike or industrial disputes by labour employed by the affected party, its subcontractors or its suppliers and which affect an essential portion of the works but excluding any industrial dispute which is specific to the performance of the works or this agreement.
GST means any tax that is payable under the GST Law and imposed as goods and Services tax. “GST” and “GST Law” are defined in a New Tax System (Goods and Services Tax) Act 1999.
Insolvency Event, in relation to a party, means any of the following events:
(a) the party ceases to (or is unable to) pay its creditors (or any of them) in the ordinary course of business, or announces its intention to do so;
(b) a receiver, receiver and manager, administrator, liquidator or similar officer is appointed to that party or any of its assets;
(c) such party enters into, or resolves to enter into a scheme or arrangement, compromise or composition with any class of creditors;
(d) a resolution is passed or an application to a court is taken for the winding up, dissolution, official management or administration of that party; or
(e) anything having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction.
Intellectual Property Rights means any all now known or hereafter known tangible and intangible (a) rights associated with works of authorship throughout the universe, including but not limited to copyrights and moral rights, (b) trademark and similar rights, (c) trade secret rights, (d) patents, designs, algorithms and other industrial property rights, all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated) whether arising by operation of law, contract, license, or otherwise, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing).
Party means a party to this Agreement.
Parties means the parties to this Agreement.
Payment means the fees payable to EM by the Client as listed in Item 4 of the Schedule.
PPSA means the Personal Property Securities Act, 2009.
PPSR means the Personal Property Securities Register established under the PPSA.
Revision means the first draft or version delivered of the Work (for instance, the first version of an iPhone application).
Provider Tools are any tools, both in object code and source code form, which EM has already developed or which EM independently develops or licenses from a Third Party, excluding any tools which EM creates pursuant to this Agreement. For example, Provider Tools may include, without limitation, toolbars for manoeuvring between pages, search engines, Java applets and ActiveX controls.
Security Interest means “security interest” as that term is defined in the PPSA;
Technical Support means the technical support EM will provide at the request of the Client, such support to include fixing ‘bugs’, curing defects or errors and restoring ‘system crashes’ within the Work.
Terms means the terms and conditions in this Agreement.
Quotation means a written document described as such in relation to the Work and being any such document provided by EM to the Client which forms part of this Agreement, which document (if applicable) shall be described in Annexure A or attached to Annexure A.
Work means the particular goods and/or services to be provided by EM to the Client.
2.1 The Client is deemed to have accepted these Terms and Conditions in any of the following ways:
(a) by executing these Terms and Conditions;
(b) by providing a written acceptance to these Terms and Conditions by email or by any other form of written communication:
(c) by placing an order with EM or instructing EM to provide the Services after:
(i) these Terms and Conditions are received by the Client; or
(ii) these Terms and Conditions are brought to the notice of the Client.
2.2 These Terms and Conditions are to be read in conjunction with any other contractual documentation produced by EM in relation to the Services to be performed by EM including the Quotation and the sign-off documents and where there is a conflict between these Terms and Conditions and the other contractual documentation created by EM the documentation will prevail in the following priority to the extent of such inconsistency:
2.3 The Client engages EM to provide certain Work as described in this Agreement and EM accepts such engagement upon the terms and conditions of this Agreement.
2.4 The relationship between the parties and the provision of Work by EM under this Agreement is on a non-exclusive basis.
4.4 The Client shall reimburse EM for all third party and/or out-of-pocket expenses which have been approved in advance by the Client and which are incurred by EM in the undertaking and/or completion of the Work within fourteen (14) days of provision of an appropriate receipt or invoice.
4.5 If in the course of or associated with undertaking the Work, additional goods and/or services are required to be provided by EM to the Client (that are not specified in the applicable Quotation or this Agreement, as the case may be)(and including changes to the scope and nature of the Works as is requested by the Client, including following a revision)(“the Additional Work”) and the Client has approved EM undertaking the Additional Work, EM is to be paid for such additional Work as is agreed between the parties in writing. The Client also acknowledges and agrees that that if Additional Work is required it may mean that EM is unable to adhere to any Delivery Date(s).
4.6 The Client must pay to EM interest at the percentage specified by the Reserve Bank of Australia as the Cash Rate Target plus two per cent (2%)on all overdue sums owing under this Agreement.
If the issued invoices are not settled after 28 days of the initial invoice for the Work, the client’s account will be suspended. At this stage, EM reserves the right re-sell this project and assets to another party if needed to re-coup the Project costs. From this period, all due invoices will be forwarded to debt-collectors.
4.7 If the Client defaults in making payment by a due date or is otherwise in breach of these terms and conditions (including any breach of warranty), EM may suspend supply of goods and/or services to the Client until the outstanding payment and any interest thereon has been paid and/or until the default has been remedied.
4.8 The Client indemnifies and agrees to pay to EM any costs, expenses, liability, loss or damage incurred or sustained by EM (and/or its affiliates, officers, employees, contractors, agents) (including without limitation, any debt collection and legal costs incurred on a full indemnity basis) as a result of the Client’s failure to comply with the Terms of this Agreement and/or the terms of any Quotation and/or other written agreement entered between the parties. The obligations of the Client under this clause 4.6 are continuing obligations and will survive the termination of this Agreement.
The Client acknowledges and agrees that EM’s liability for any damages or loss incurred or sustained by the Client in connection with EM proceeding with the Work is subject to the provisions of clause 16.6.
4.9 If the Client has taken possession in whole or in part of the Works and/or of the Final Created Work (the “Assets”) before all payments have been made to EM under this Agreement the Client grants to EM a Security Interest in the Assets as security for payment of any amount payable by the Client to EM under this Agreement and EM may register a financing statement in respect of its Security Interest pursuant to this clause on the PPSR.
4.10 An amount payable by the Client to EM under this Agreement, in respect of the supply by EM which is taxable supply under the GST Law, unless specifically expressed to the contrary, represents the GST exclusive value of the supply and the Client as the recipient of the supply must, in addition to the sums specified in the Agreement as payable to EM, pay to EM the GST payable in respect of the supply. In this clause the following words have the following meaning:-
(a) “GST” means any consumption tax imposed by government which operates during the term of the Agreement and includes (without limitation) a goods and services tax, a broad based consumption or indirect tax and value added tax; and
(b) “GST Law” includes any law introducing, related to or in furtherance of, a GST, including A New Tax System (Goods and Services Tax) Act 1999 (as amended).
All payments related to Work are to be paid by the Client for stages of the project as initially agreed by both parties. By making a payment, the Client agrees EM has successfully completed the stage of the project for which the payment is made and EM shall not be obliged to return or refund to the Client any monies previously paid by the Client to EM for or towards this stage or a previous stage.
7.1 The Client will supply EM with any and all Client Materials required for EM to complete the Work, including data for website or applications, artwork, logos, designs, graphic and related materials and any other information, such materials to be subject to the requirements of confidentiality and accuracy, and such materials to be provided in a timely and prompt manner as required by EM.
7.2 All artwork, logos, designs, text, graphic, photography and related materials provided by the Client to EM must be in high resolution digital format.
7.3 Text supplied by the Client is to be fully edited and proofread by the Client prior to supply to EM.
7.4 Unless otherwise specified in the applicable Quotation and/or this Agreement, imagery required for EM to undertake the Work that is purchased from a stock library will be sourced at an additional cost to the Client.
7.5 If EM is required to undertake work that involves corrections to Client Materials (“Client Corrections”) this will be charged to the Client at EM’s applicable standard rates. Client Corrections are corrections or changes to material supplied by the Client at any stage of the design/creation process. The Client can reduce the amount of corrections by supplying approved sourced material and detailed instructions prior to EM commencing work.
7.6 Without limiting the foregoing, the Client will also at all times ensure that EM is given such information, facilities, services and accessories as EM requires to enable it to comply with its obligations under this Agreement.
7.7 The parties acknowledge that where Work is completed by EM using Client Materials the following applies:-
(a) The Client warrants that any Client Materials provided are true and correct. EM will not be responsible for any defects or non-suitability of Work provided which are the result, either whole or in part, of defects, inaccuracy, omissions or errors in the Client Materials; and
(b) Should a defect, inaccuracy, omission or error in the Client Materials lead to EM being unable to provide the Work for the Payment agreed, then, should EM elect to continue to complete the Work, then EM will be paid a further fair and reasonable amount as is agreed between the parties;
(c) The Client agrees to indemnify EM its affiliates, officers, employees, contractors, agents and other partners and its and their respective employees and continue to hold EM and such foregoing persons indemnified in relation to any costs incurred as a result of defects, inaccuracy, omission or errors in the Client Materials;
(d) EM shall not be responsible for any deficiency or alleged deficiency in the Work which is attributable to the incorrect Client Materials being provided by the Client or a failure by the Client to provide Client Materials or by a defect, inaccuracy, omission or error being in the Client Materials;
(e) The Client warrants to EM that it owns or has all necessary rights to licence EM to use the Client Materials and that the use of the Client Materials by EM will not infringe the Intellectual Property or other rights of any person or entity.
(f) The client warrants that any Client Materials provided to EM for inclusion in the Work:-
(i) are not obscene, offensive, defamatory; and
(ii) do not comprise and cannot be used for any purpose or activity of an illegal, fraudulent or defamatory nature.
(g) The Client agrees to indemnify and hold harmless EM, its affiliates, officers, employees, contractors, agents and other partners and its and their respective employees from and against all claims, liabilities, actions, losses, costs and expenses arising from or in connection with EM’s use of the Client Materials for the purposes of this Agreement.
(h) Nothing in this clause shall affect EM’s right to exercise its own judgment and utilize its creative skills as it considers most appropriate in order to develop the Work. Without limiting the foregoing, EM may exercise its total creative discretion in developing the Work to the extent that the exercise of such discretion is not inconsistent with the Quotation or any other written agreement entered between the parties.
8.1 The parties acknowledge that in doing the Work for the Client it may be necessary for EM to access the Client’s databases and internal systems (“Client Access”) for the purpose of accessing data, systems and information to enable the Work to be completed and/or to operate, and:
(a) the Client agrees to give EM access to its databases and internal systems solely for the purpose of enabling the Work to be completed and/or to operate; and
(b) EM warrants it will not use the information or data accessed in any way other than to enable the Work to be completed and/or to operate, and that it will continue to maintain the privacy and confidentiality of Client Materials.
8.2 EM agrees that to undertake Client Access in a competent and professional manner, observing industry standards and quality work practices.
8.3 The Client agrees to indemnify and hold harmless EM, its affiliates, officers, employees, contractors, agents and other partners and its and their respective employees from and against all claims, liabilities, actions, losses, costs and expenses arising from or in connection with Client Access for the purposes of this Agreement.
9.1 Subject to this clause 9, EM agrees that, provided the Client is not in breach of this Agreement (and/or of any other applicable agreement entered with EM), and provided that the payment in full has been made by the Client to EM of all fees, expenses and monies owing to it in relation to any Work provided under this Agreement, that ownership of the Final Created Work and the Intellectual Property Rights in the Final Created Work shall vest in the Client and EM is deemed to assign and transfer ownership to the Client of the Intellectual Property Rights in the Final Created Work, including an assignment of future copyright.
9.2 There is no assignment to the Client of Intellectual Property Rights in any Background IP (including any Background IP as contained in the Final Created Work) and EM retains all ownership and rights in relation to the Background IP. EM grants to the Client a non-exclusive, royalty free licence to use the Background IP to the extent necessary to enable the Client to have the Intellectual Property Rights in the Final Created Work.
9.3 For the avoidance of doubt, and without limiting the foregoing, while any fees, expenses and monies are owing to EM by the Client under this Agreement, EM retains ownership of the Final Created Work, until resolution in respect of the amount payable is achieved.
9.4 Provided that the Client has complied with clause 9 hereof and Intellectual Property Rights in the Final Created Work has vested in the Client, in such event the Client grants EM a perpetual, royalty free, irrevocable licence throughout the world to use the Final Created Work:
(a) to the extent necessary to perform its obligations under this Agreement; and
(b) to allow EM to advertise and promote EM’s goods and/or services (including following termination of this Agreement).
9.5 The Client grants EM permission for EM to refer to Work done for the Client in EM’s promotional and marketing materials for EM’s business, unless expressly stated otherwise. The Client also grants EM permission to refer to and use and reproduce the name and logo of the Client for the purposes of promoting the business of EM.
9.6 Unless expressly directed by EM otherwise, the Client is responsible for:-
(a) obtaining all necessary permissions, authorisations, licences and consents in relation to the use and incorporation of any and all Intellectual Property Rights owned or licensed to third parties in the Work; and
(b) payment of all royalties or licence fees associated with the use of a third party’s Intellectual Property Rights in connection with the Work.
9.7 The Client agrees to indemnify and hold harmless EM, its affiliates, officers, employees, contractors, agents and other partners and its and their respective employees from and against all liability under any final judgment in proceedings brought by a third party, and any claims, liabilities, actions, losses, costs and expenses whatsoever arising from or in connection with any alleged breach of a third party’s Intellectual Property Rights except to the extent caused or contributed to by the default of EM or its affiliates, officers, employees, contractors, agents or other partners or its or their respective employees.
(c) if either party cannot be reached by other party via phone or email for thirty (30) days; or
(d) if the parties have not agreed to recommence the Work after it has been suspended for six (6) months or longer.
12.2 Upon termination of this Agreement:
(a) EM’s obligation to provide Work immediately ceases;
(b) EM may retain any monies received from the Client for any Work performed prior to the date of termination; and
(c) if EM has terminated this Agreement all monies payable to it become immediately due and payable including any expenses for goods and/or services to be provided by third parties which have been contracted prior to the date of termination.
DEVICE AND SOFTWARE PLATFORM SUPPORT FOR ANDROID OR IPHONE APPLICATIONS
EM agrees the where Work is provided as an Android or iPhone App to be working in the current and the one (1) previous version of the Android and iOS software platforms.
If the Work completed is an iPhone App, EM agrees the project to be working on the most recent devices and one (1) previous generation of the same device class. If the Work is completed as an Android app, EM agrees the project to be working on the most commonly used three (3) Android device makes and models, and one (1) previous generation of the same device type.
14.1 Notifications from the Client as to any defects or errors in the Work must be in writing and provided to EM as soon as the Client becomes aware of the defect or error. Where EM requests, the Client must provide a documented example of the defect or error in question.
14.2 Failure to notify EM of an alleged defect or error within two (2) months of delivery of the Work will result in EM not being responsible for the defect or error.
14.3 EM has the right to correct the alleged defect or error within 14 days or notify the Client with a new estimated date of correcting the error where it might require more than 14 days, and will do so at no charge to the Client.
EM shall be entitled to at any time assign or otherwise transfer its rights and obligations under this Agreement to a third party.
18. FORCE MAJEURE
18.1 Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.
18.2 Where there is an event of Force Majeure, the party prevented from or delayed in performing its obligations under this Agreement must immediately notify the other party, giving full particulars of the event of Force Majeure and the reasons for the event of Force Majeure preventing that party from, or delaying that party in, performing its obligations under this Agreement and that party must use its reasonable efforts to mitigate the effect of the event of Force Majeure upon its or their performance of the Agreement and to fulfil its or their obligations under the Agreement.
18.3 Upon completion of the event of Force Majeure, the party affected must as soon as reasonably practicable recommence the performance of its obligations under this Agreement.
18.4 An event of Force Majeure does not relieve a party from liability for an obligation that arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner that matured prior to the occurrence of that event.
18.5 The Client has no entitlement and EM has no liability for any delay costs losses, expenses and/or damages, or any other damage whatsoever in any way incurred by the Client due to an event of Force Majeure.
18.6 If a delay or failure by a party to perform its obligations due to Force Majeure exceeds sixty (60) days, either party may immediately terminate the Agreement on providing notice in writing to the other party.
19.2 Any notice or other communication under this Agreement will be deemed to have been received when:
(a) if delivered by hand, at the time of delivery;
(b) if posted, two Business Days after posting; and
(c) if delivered by facsimile, when transmitted upon production of a transmission report indicating the communication was received in its entirety at the recipient’s number, but if such delivery or receipt is later than 4.00 pm (local time) or on a day on which business is not generally carried on in the place to which the communication is sent, at 9.00am on the next business day in that place.