Terms of Service

a).

By agreeing in writing to the terms of the attached Proposal (Proposal) or otherwise giving us instructions to begin the work set out in the Proposal (whatever comes earlier) (Commencement Date), you agree that these Terms of Service and the Proposal will form a binding agreement (Agreement) between Shannon Towell and the Client listed in the Proposal.

b).

The term of this Agreement will commence on the Commencement Date and continue until the parties have completed their obligations under the Agreement (Term).

c).

This Agreement exclusively governs the provision of the Services listed in the Proposal.

d).

The terms of this Agreement can only be changed with the written consent of both parties.

a).

We will supply the Services and Deliverables listed in the Proposal as a non-exclusive independent contractor to you.

b).

We may engage sub-contractors to perform all or any part of our obligations under this Agreement.

c).

If we give you a proposed timeline for the Services or delivery date for the Deliverables, you acknowledge that these are estimates only and subject to change (including for reasons such as personal or health reasons).

d).

You agree to provide any feedback and approvals we request in relation to draft Deliverables by the dates we require.  If we request feedback or an approval by a certain date and you fail to come back to us, you agree you are deemed to have accepted the draft Deliverables.

e).

We will prepare revisions to draft Deliverables without additional charge as set out in the Permitted Revisions section of the Proposal (Revisions) and additional revisions will be charged at the rate set out in the Proposal. Revisions do not extend to presenting new concepts, creating new deliverables or similar, but to reasonable changes to the drafts only.  

f).

Once completed, we will provide you with final non-editable versions of the Deliverables (Final Deliverables) in the Format listed in the Proposal.  We may provide editable files (known as raw or source files) in relation to the Final Deliverables if it is stated in the Format listed in the Proposal. We may otherwise charge an additional fee if you request editable files and we agree to provide them to you.

g).

You may only use the Final Deliverables strictly in accordance with clause 5.c.

a).

You agree that you will in a timely and complete fashion, provide all necessary, complete and accurate information, data, brand assets, documentation, feedback, passwords, logins, approvals, facilities and assistance that we require from time to time to provide the Services (Customer Materials).

b).

If you breach clause 3a. in any way, the Services may be delayed and we are not liable for any Loss you may suffer as result of this.

c).

You agree that you are responsible for and must carry out your own due diligence to ensure that you have the legal right to use any Final Deliverables for any intended commercial purpose.

d).

At the end of the Term, you acknowledge that we are not required to return the Customer Materials, unless you request in writing within 30 days after the end of the Term and agree to pay the delivery costs.

a).

You agree that you will in a timely and complete fashion, provide all necessary, complete and accurate information, data, brand assets, documentation, feedback, passwords, logins, approvals, facilities and assistance that we require from time to time to provide the Services (Customer Materials).

b).

If you breach clause 3a. in any way, the Services may be delayed and we are not liable for any Loss you may suffer as result of this.

c).

You agree that you are responsible for and must carry out your own due diligence to ensure that you have the legal right to use any Final Deliverables for any intended commercial purpose.

d).

At the end of the Term, you acknowledge that we are not required to return the Customer Materials, unless you request in writing within 30 days after the end of the Term and agree to pay the delivery costs.

e).

You agree that ‘time is of the essence’ when making payments under this Agreement.

f).

We reserve the right to charge Interest on any and all overdue payments under this Agreement and may refer any debts to a debt collector or solicitor (where you agree to pay us for all costs incurred by us in doing so).

g).

If your account is outstanding by more than 7 days, we may suspend our performance of the Services and will not be liable for any Loss you may suffer as a result.

a).

You will retain ownership of the Intellectual Property in all Customer Materials you provide to us and grant us a licence to use the Customer Materials in order to perform our obligations under this Agreement and warrant that our use of the Customer Materials do not infringe any third party rights.

b).

We agree that the Intellectual Property in the Final Deliverables (the Developed IP), will be assigned from us to you throughout the world in perpetuity upon completion of the Project and payment in full by you of the Total Costs.  The Developed IP does not include Our IP or Third Party IP nor does it include our internal notes, preliminary drafts, drawings, illustrations and designs, preliminary electronic works or draft Deliverables which are rejected by you.

c).

The assignment of the Developed IP under clause 5(b) is conditional upon you using the Developed IP for the Approved Purpose.

d).

We may at our discretion (or at your request) incorporate Intellectual Property owned by third parties into the Deliverables such as stock images, fonts, source code and other licensed materials (Third Party IP).

e).

Your use of the Third Party IP as part of the Final Deliverables is subject to terms imposed by the relevant third party owner (Third Party Licences). You will be responsible for maintaining and paying for all applicable Third Party Licences unless otherwise notified by us in writing.

f).

You give us a non-exclusive licence to use Final Deliverables for our self-promotional, marketing or demonstrative purpose (including in awards and pitches) and consent to us using your name and logo as part of any published client list.

g).

You agree to provide us with the following credit where Final Deliverables are reproduced and it is reasonable or customary to do so: “Designed by Shannon Towell” with a hyperlink to [https://shannontowell.design] and/or tag our profile on relevant social media i.e. Instagram, LinkedIn, Facebook, etc.

a).

Nothing in this Agreement restricts, limits or excludes any rights you may have under the Australian Consumer Law or any other law.

b).

If you acquire the Services as a Consumer, we will provide the Services with due care and skill and in accordance with any applicable Consumer Guarantees, however to the fullest extent permitted by law, we otherwise exclude any warranty or condition in relation to those Services which would otherwise be implied.

c).

If you do not acquire the Services as a Consumer, we will provide the Services with due care and skill, however to the fullest extent permitted by law, we do not make any warranties or guarantees that the Services will be suitable or fit for any particular purpose and otherwise exclude any warranty or condition in relation to those Services which would otherwise be implied.

d).

Any recommendations, strategies and opinions provided by us as part of providing the Services are made on the basis of our experience and professional judgment and are not guarantees that we will achieve certain results. Subject to any rights you have under clause 6.a., you acknowledge and agree that reasonable people may disagree on matters involving professional judgment and, accordingly, a difference of opinion on a question of professional judgment will not excuse you from paying for Services rendered.  Furthermore, and subject to any rights you have under clause 6.a., where our Services do not obtain certain results, you agree that this will not excuse you from paying for the Services rendered.

a).

You are liable for and indemnify us and our representatives against any Loss or Claim suffered by us or our representatives in respect of any breach of this Agreement by you including when you use the Final Deliverables in breach of clause 5.c..

b).

Our liability to you for any Loss or Claim suffered by you in respect of the Services, including in respect of a failure to comply with any applicable Consumer Guarantees, is limited to the fullest extent permitted by law and at our election, to either resupplying the Services again; or paying the cost of having the Services supplied again.

c).

Neither party is liable to the other party for any kind of Consequential Loss arising out of or in connection with this Agreement.

d).

Subject to clause 6.a. and clause 7.b., we are not liable for any Loss you may suffer in relation to the Services, where the Services are restricted or impacted by a Force Majeure Event.

b).

The parties agree that if the Proposal is cancelled under clause 8.a. before completion:

c).

If the Proposal is cancelled under clause 8(a):

a).

Capitalised words may be defined in the Definitions section, the body of these Terms of Service or in the attached Proposal.

b).

This Agreement forms the entire agreement between the parties as to its subject matter and changes to this Agreement must be agreed in writing by the parties.

c).

This Agreement will be governed by the laws of Victoria, Australia. The parties agree that the courts of Victoria, Australia (or where applicable, the Federal Court of Australia) will have exclusive jurisdiction of this Agreement.

d).

Unless expressly permitted in this Agreement, you must not sub-licence any rights under this Agreement or otherwise assign or novate your rights and obligations under this Agreement to another person without our prior written consent.

e).

Any formal communication required under this Agreement must be in writing (email to suffice, except for any breach notices).

f).

Each party agrees that it will not disclose the Confidential Information of the other party acquired in relation to this Agreement including our pricing without the party’s consent, except that the Confidential Information may be disclosed to a party’s representatives on a ‘need to know’ basis, to a party’s professional advisors and as required by law.

g).

If the whole or any part of this Agreement is void, unenforceable or illegal, it will be severed, and the remainder of this Agreement will continue in full.

h).

The following clauses will survive the conclusion of this Agreement: 3, 4, 5, 7, 8 and 9.

Australian Consumer Law means the Competition and Consumer Act 2010 (Cth) Schedule 2.

Confidential Information means any information belonging to or relating to a party to this Agreement howsoever acquired that is marked confidential or is by its nature confidential, including, without limitation, trade secrets, Intellectual Property, know-how, business and financial data, policies, plans, databases, client lists and reports but does not include information which is or becomes generally available in the public domain (other than through breach of this Agreement or an obligation of confidence).

Consequential Loss means special, incidental, indirect or consequential damages, loss of revenue, anticipated savings, profits, goodwill, reputation, interest or business; but specifically excludes legal and other professional costs of the parties.

Consumer has the same definition as in the Australian Consumer Law.

Consumer Guarantees has the same definition as in the Australian Consumer Law.

Final Deliverables has the definition in clause 2.f.

Force Majeure Event means an act of god, war, natural disaster, pandemic, global financial crisis, financial crisis, injury or illness, death in the family, government shutdown or similar restrictions, hacking, viruses, internet connectivity issues, power outages and any other cause not reasonably within the control of the party affected.

Interest means interest at the rate of 2% above the rate set down from time to time under section 2 of the Penalty Interest Rates Act 1983 (Vic), such interest which is capitalised monthly.

Intellectual Property means all rights conferred under statute, common law or equity, wherever in the world subsisting, in relation to trade marks, copyright, patentable inventions and designs, whether existing now or in the future, and whether or not registered or registrable, and includes any rights subsisting in or relating to trade secrets, know how, geographical indications of origin, techniques, libraries and databases, Confidential Information, and further includes the right to apply for the registration or grant of any such intellectual property.

Loss means any loss, cost, expense (including legal costs on a full indemnity basis) or damage, whether direct or indirect, present or future, fixed or ascertained, actual or contingent and whether arising under contract, in tort, at common law, in equity, under statute, under an indemnity or otherwise.

a).

a word importing the singular includes the plural and vice versa;

b).

a word importing a gender includes other genders;

c).

a law is a reference to that law as amended, consolidated or replaced;

d).

this Agreement includes all schedules and attachments to it;

e).

a party to this Agreement includes its agents, personal representatives, successors and permitted assigns;

f).

a person, includes a natural person, partnership, joint venture, corporation, trust, governmental agency, association or other body corporate;

g).

a time, is a reference to the time in the State or Territory of the jurisdiction that governs this Agreement;

h).

$, is a reference to Australian dollars unless otherwise expressly stated; and

i).

the words ‘such as’ or ‘including’ are not used as words of limitation.