TERMS & CONDITIONS
The Terms and Conditions outlined herein apply to all works produced and services rendered by Kaiju Enterprises Pty Ltd (ABN 70 677 236 690) (“KE”) trading as The Operative Word. These Terms should be read in conjunction with any Scope of Works, cost estimate or quotation document provided by KE. Unless otherwise agreed in writing, these Terms and Conditions and the Scope of Works, cost estimate or quotation document constitute the full agreement between KE and the Client. These Terms and Conditions supersede any previous versions and apply to all present and future projects unless otherwise agreed in writing.
KE encourages the Client to read and fully understand the Terms outlined below. If any term is unclear, the Client should contact KE and seek independent legal advice.
KE may from time to time change or modify these Terms and Conditions. Updates will be communicated to the Client and will have immediate effect.
Definitions:
1.1 “KE” refers to Kaiju Enterprises Pty Ltd trading as The Operative Word and persons acting on behalf of and with the authority provided by Kaiju Enterprises Pty Ltd.
1.2 “Client” means the Client and any person acting on behalf of and with the authority of the Client as described on the cost estimate, quotation, Scope of Works, purchase order, work authorization provided by KE.
1.3 “GST” means the tax imposed by the A New Tax System (Goods & Services) Act 1999 and related legislation.
1.4 “Service(s)” refers to business consulting and business operations services provided by KE. All services and works supplied, produced and/or delivered by KE to the Client in accordance with the Scope of Works, cost estimate, quotation, purchase order or otherwise by agreement between KE and the Client.
1.5 “Works” includes all works produced under the Scope of Works, cost estimate, quotation, purchase order or otherwise by agreement, including but not limited to digital assets, documents, graphic designs and concepts, web designs and concepts, web platforms, system architecture, designs and algorithms, software applications and platforms, promotional materials, packaging, photographs, animations, logos, copy, artistic works, literary works, sound recordings, audio and film recordings.
1.6 “Sign-off” means the Client’s written acceptance of the works Service, stage of the project and/or works completed or provided by KE that is required to progress the project.
1.7 “Quotation(s)” includes quotations, cost estimates, budgets and pricing details specified in Proposals, Scope of Works, purchase orders or otherwise provided to the Client by KE.
ACCEPTANCE OF QUOTATION
2.1 Quotations are provided as an estimate only, based on the anticipated time requirements for the project in light of KE’s experience and standard processes. Quotations will be valid for 30 days from the date of issuance.
2.2 All projects are subject to a standard disbursement charge to cover anticipated costs for in-house colour printing, travel, postage, telecommunications, etc.
2.3 Unless otherwise indicated, the Quotation excludes the following: GST; print; commissioned illustration; photography or stock images; iconography; digital art; image retouching; image scanning; copywriting; postage; in-house colour print-outs and travel exceeding that allocated within the standard disbursement charge above; web hosting; couriers; other third-party costs incurred (such as merchant bank and postal charges), etc. These charges will be included on the final invoice and denoted clearly for the Client’s reference.
2.4 KE asks that the Client accept the Quotation in writing prior to commencement of work on the Service. In the alternative, the Client’s continued instructions following receipt of the Quotation will be deemed as acceptance.
2.5 Acceptance of the Quotation by the Client will indicate acceptance of the Scope of Works and these Terms and Conditions.
PRICE AND PAYMENT
3.1 The Client agrees to pay KE the costs detailed in the Quotation in accordance with the Terms and Conditions, unless otherwise agreed in writing.
3.2 In order for KE to deliver premium Service to the Client, payment of a deposit will be required prior to commencement of work. The minimum deposit required will be equal to 20% of the Quotation, however quantum may vary based on project size.
3.3 The Client agrees that no work will commence until:
a) KE has received written approval of the Quotation (by hand or by email) and
b) The deposit payment has been received by KE.
3.4 An invoice covering the balance of payments due under the Quotation will be issued upon project completion.
3.5 Unless otherwise specified, all invoices issued by KE will be due and payable within 14 days of the date of issuance. Failure to make payment by the due date may result in interest charges being incurred.
3.6 Where the Service is to be provided by KE in stages, KE will provide a Quotation on a stage-by-stage basis. A deposit invoice may be issued prior to commencement of work on each Stage, the balance being payable upon Sign-Off of the stage.
3.7 If any project exceeds the estimated timeline or extends beyond 12 weeks from acceptance of Quotation first, KE reserves the right to invoice 25% of any outstanding balance.
3.8 Costs outlined in the Quotation include one round of minor Client amendments during each project stage. Additional rounds of changes and/or revisions will be conducted at the discretion of KE and may incur additional fees. Any Client amendment that significantly changes the scope of the project will be considered a major amendment and will incur additional fees.
3.9 Quotations provided allow for occasional meetings at key stages for a reasonable length of time between KE and the Client. Some meetings may incur additional charges for time spent, which the Client would be made aware of in advance.
3.10 In the event that KE’s charges exceed the Quotation, KE will endeavour to notify the Client promptly. All charges that have been reasonably incurred will be due and payable upon project or stage completion as detailed in the Quotation.
PROJECT TIMELINES
4.1 Project Timelines and overall milestones are provided by KE as an estimation only and should not be relied upon by the Client. Though KE will endeavour to adhere to the same, no guarantee of completion by the estimated date is offered.
CLIENT INSTRUCTIONS
5.1 To allow KE to best serve the Client, KE asks the Client to provide clear written instructions, in a timely manner. Such instructions should specify all relevant quality requirements and deliverables.
5.2 Project Delays resulting from the Client’s inability or failure to provide instructions, feedback, documents, files and/or requested information in accordance with the Scope of Works and/or project schedule supplied may result in an adjustment to the agreed timelines and additional fees being incurred.
5.3 KE reserve the right to suspend the delivery of services and obligations under this Agreement, where the Client fails to provide KE the necessary support, information and instructions to attend to delivery of the Scope of Works as detailed, becomes insolvent or breaches these Terms and Conditions.
DELIVERY, REVIEW & SUPPORT
6.1 Where the Scope of Works requires the delivery of items to the Client, delivery will be made electronically, as appropriate, either by email, Google Drive, or as otherwise agreed.
6.2 KE asks that the Client Sign-Off, reject or advise of changes and/or revisions required to the delivered Service or item within 7 days of delivery.
6.3 KE will not be obliged to attend to changes or revisions requested more than 14 days after delivery. KE reserves the right to reasonably reject any such request for rectification and/or charge additional fees for attending to the request if accepted.
6.4 Where the project is completed in stages, KE asks that the Client Sign-Off on the Service upon completion of each stage. No further work can be undertaken until the client has provided Sign-Off.
6.5 KE are not obliged to deliver working files, drafts, internal drawings, raw footage or code related to the production of the final product to the Client, relevant to the Service, at any point in time.
6.6 KE will keep any deliverable assets produced under the Scope of Works available for 30 days following project completion. If KE is required to retrieve assets outside this 30 day timeframe, the service will be charged at an hourly rate, minimum total of $300.00 AUD.
PROJECT VARIATIONS
7.1 Where the Client wishes to vary the Service and/or the accepted Quotation in any way following commencement of work, a written request must be provided to KE. Acceptance of the same will be at the discretion of KE and may incur additional charges.
7.2 In the event that a request requiring additional work is accepted by KE, additional charges will be passed on to the Client at an appropriate daily rate. The provision of these additional services will be subject to these Terms and Conditions and any quotation or Scope of Works provided by KE unless otherwise agreed.
7.3 If the Client requests cancellation of an item of work specified in an accepted Quotation, KE remains entitled to any portion of charges incurred in conducting works on this item prior to acceptance of the requests.
7.4 Requests to vary, alter or amend any works following Sign-Off (including but not limited to documents, presentations or research) will be considered a variation.
7.5 Where the Client requires delivery within specific timeframes which constitute a significant variation to the agreed project timelines, this request must be made in writing. Acceptance of the same will be at the discretion of KE and may be subject to additional rush fees.
RUSH FEES
8.1 Where the Service presents an immediate deadline, a rush fee may apply at the discretion of KE. The breakdown of Rush Fees is equal to:
50% of total chargeable hours for same day turnaround(s)
40% of total chargeable hours for 24-hour turnarounds(s)
30% of total chargeable hours for 48-hour turnarounds(s)
20% of total chargeable hours for 3 to 5-day turnarounds(s).8.2 This Rush Fee applies to Service provided by KE within standard business hours on business days. Further penalty rates will be payable where the Service is delivered on weekends and/or public holidays. The Client will be notified in advance if penalty rates are applicable.
PUBLIC HOLIDAY AND WEEKEND RATES
9.1 Where work is required on a public holiday or weekend, the Client may be subject to increased rates for staff and contractors beyond the fees contemplated in the agreed Quotation. KE will notify the Client of any increases well in advance of an activation or event subject to such increased rates.
CONTENT, FONTS, TYPEFACES, IMAGES & RECORDINGS
10.1 The Client agrees to acquire a valid licence for any content owned by a third-party. KE validly assumes that all content provided by the Client has been licensed appropriately and therefore bears no responsibility for any breach of intellectual property interests and/or moral rights stemming from use of the same.
USE OF SUPPLIERS
11.1 KE have cultivated an established network of highly skilled suppliers. Where required, KE recommends that the Client use these preferred suppliers to ensure the supply is appropriately managed and the highest quality results are achieved.
11.2 If the Client elects to use another supplier, KE will provide the relevant details directly to the Client. KE will be unable to monitor, advise or take any responsibility for the process or final output.
DEFECTS
12.1 The Client agrees to alert KE in writing to any defects or problems in relation to the Service provided including printed works within 14 days of delivery. KE will not be liable for any claims made after this period.
OVERDUE ACCOUNTS & DISPUTING INVOICES
13.1 KE reserves the right to charge the Client interest at 10% per annum (calculated daily) on all amounts outstanding unless otherwise agreed in writing. Interest shall accrue daily from the date payment was due, until the date payment is made.
13.2 In the instance of default, the Client indemnifies KE against all costs and disbursements incurred in pursuing the debt, including legal costs and/or agency costs.
13.3 Where the Client seeks to query details contained in an invoice issued by KE, such query must be raised within 14 days of receipt. Failure to raise a query within this timeframe will result in deemed acceptance resulting in an obligation to pay.
SUSPENSION OF SERVICES
14.1 KE reserves the right to suspend work or Service in any case where the Client fails to perform their obligations under the Terms and Conditions, including but not limited to failure to pay an invoice by the due date and or failure to provide required content or instructions to KE.
14.2 The Client indemnifies KE against claims for all damage, loss or injury flowing from such suspension.
14.3 KE may discontinue the Services permanently where an account is overdue by more than 7 days, and having been notified of the outstanding account, the Client fails to make payment in full within 7 days of the notice.
INTELLECTUAL PROPERTY RIGHTS
15.1 KE retains ownership of the intellectual property subsisting in the Service and Works until such time as payment in full of all outstanding amounts due and payable under these Terms and Conditions has been made by the Client and received by KE.
15.2 Following receipt of payment in full of all outstanding amounts due and payable under these Terms and Conditions and Quotation, KE assigns to the Client all right, title and interest in the intellectual property subsisting in any design elements, including artistic and graphic design elements, branded elements and stylisation of any or all content elements delivered-up to KE by the client for implementation into Client collateral, subject to Clause 15.4.
15.3 Until such time as an assignment occurs, KE grants the Client a non-exclusive licence to the intellectual property rights detailed in Clause 15.2.
15.4 KE retains ownership of all intellectual property rights subsisting in Code run, built, or developed by KE, relevant to or incorporated in the Service and Works unless otherwise agreed in writing, including but not limited to source code, frontend code, backend code, wireframe designs, database designs, algorithms, content workflow systems and designs and flash files or animation. KE are free to repurpose Code at their discretion and include Code in their internal libraries or components.
15.5 Following receipt of payment in full of all amounts outstanding under the Terms and Conditions and Quotation, KE grants the Client a non-exclusive, perpetual licence to the intellectual property rights subsisting in the Code and/or Works detailed in Clause 15.4, limited to use of the Code and/or Works within the Service and Works, for the purpose outlined in the Scope of Works.
15.6 The assignment and/or licence of intellectual property rights from KE to the Client is subject to the Client granting approval for KE to use the Service and Works for self- promotion in its portfolio, in presentations, in advertising, in print and online.
15.7 KE retains ownership of the intellectual property subsisting in all works produced but not ultimately Signed-Off by the Client, including but not limited to: pitch material; draft concepts; ideas communicated; working notes and any other internal written materials; preliminary drafts, drawings, illustrations, mock-ups and sketches; preliminary electronic works including website drafts, source code, development tools, programs, multimedia applications and programmers’ notes; raw footage, content, storyboards and scripts; designs which are rejected by the Client; and/or source files.
15.8 KE will never knowingly infringe any copyright or trademark and will endeavour to deliver creative solutions that are original and unique to KE. Unless otherwise agreed in writing, it is the responsibility of the Client to ensure that no copyright or trademark has been infringed.
CREDIT AND ACKNOWLEDGMENT
16.1 Appropriate credit and acknowledgment for work produced by KE should be attributed to KE where possible (for instance written in small text on the back of a printed item or at the bottom of a website).
16.2 KE retains the right to name the Client in their promotional collateral (including but not limited to websites, brochures or printed materials) and create case studies for the Service provided unless the Client requests otherwise in writing.
CONFIDENTIAL INFORMATION
17.1 KE will not at any time or in any manner, either directly or indirectly, use for KE personal benefit or divulge, disclose or communicate in any manner any information that is proprietary to the Client. KE will act reasonably to protect such information and treat it as strictly confidential.
17.2 The Client agrees not to disclose any confidential information created under or in respect of the Project to any third-party, save as required by law or as instructed by KE.
17.3 The Client acknowledges that KE cannot guarantee and therefore shall not be in any way responsible for the security or privacy of any information provided to KE by the Client.
17.4 The Client Agrees that obligations and warranties as detailed under this Clause 17 survive termination of this Agreement and/or project completion.
CLIENT’S UNDERTAKINGS & WARRANTIES
18.1 The Client undertakes and warrants that they are ultimately responsible for the Service and limiting the use thereof to the objectives and/or purposes contemplated by the agreed Scope of Works. In doing so, the Client undertakes and warrants that the Service will not be deemed contrary to law to any extent, including by:
a) Ensuring that all intellectual property interests subsisting in any material provided to KE have not, and will not be infringed by KE in performing its obligations under this Agreement;
b) Ensuring that Service and/or any representations contained therein do not constitute or include an unauthorised use or infringement of any trademark or copyright owned by a third-party, including by undertaking TradeMark Clearance Searches;
c) Ensuring that the Service does not contain any representations, written or visual, which would be deemed defamatory to any person, company or legal entity, obscene, blasphemous, offensive or discriminatory; and
d) Ensuring that the Service and/or any representation contained therein, are not in any way contrary to the Competitions and Consumer Act 2010 (Cth) and will not give rise to any common law action in passing off.
18.2 The Client attests to the truth and accuracy of all statements included in the Service, purporting to be fact. The Client warrants that reliance on the same by any person will not cause loss, damage or injury.
INDEMNITY
19.1 To the full extent permitted by law, the Client indemnifies KE against any and all claims, actions, proceedings, losses, liabilities, damages or costs arising from:
a) use of material provided by or recommended by the Client;
b) the Service;
c) Any actions taken by KE under instruction from the Client; and
d) Any actions taken by KE otherwise approved by the Client.
LIMITATION OF LIABILITY
20.1 KE will apply the necessary care, skill, knowledge and expertise to the Service. However, KE makes no warranties of any kind, in relation to the work or Service provided to the Client.
20.2 KE accepts no liability, to the fullest extent under law regarding:
a) Any consequential loss, damage or injury arising, regardless of how it arises under the Terms or in connection with the Service; and
b) Any punitive, additional or exemplary damages.
20.3 If found to be liable for any claims, losses, damages, costs or injuries arising out of or in connection with the Service or the Terms and Conditions, the quantum sum of KE’s liability or liabilities is limited to the value of the project as detailed in the agreed Quotation and Scope of Works.
20.4 If Australian Consumer Law applies, notwithstanding any other provision of this Agreement, to the extent to which KE is entitled to do so, KE limits its liability in respect of any claim to supplying the work and Service again, or the payment of the cost of having the Service supplied again.
20.5 To the extent permitted by law, the Client agrees that KE’s liability in respect of any claim made by the Client will be reduced to the extent to which the Client’s negligence or breach contributed to the loss or damage.
CANCELLATION OF SERVICES
21.1 Either party may cancel the Service and terminate the Agreement by providing 21 days’ advance written notice. Termination will be deemed to take effect at the expiry of this 21 day notice period.
21.2 KE reserves the right to cancel the Service and terminate the Agreement with immediate effect where:
a) the Client is in breach of its obligations and/or defaults in its performance, and having been notified of the breach the Client fails to remedy the breach within 7 days; or
b) the Client suffers a bankruptcy or insolvency event; or
c) the Client has failed to notify KE of a change in their contact details and is subsequently unreachable following reasonable enquiries.
21.3 The Client remains liable for the total costs incurred by KE up to the date of termination or cancellation, including all professional fees and disbursements incurred.
21.4 The Client may also be deemed responsible for third-party expenses incurred after the date of cancellation, where such expenses are incidental to the Cancellation of the Service, including third-party cancellation fees.
CONTRACTOR RELATIONSHIP & SUB- CONTRACTING
22.1 The relationship formed under the Agreement is one of independent contractors and should not be interpreted as creating a partnership, joint venture or agency relationship.
22.2 KE may sub-contract obligations formed under the Agreement and the agreed Scope of Works, at their discretion. Doing so will not alter the terms of the Agreement.
SEVERANCE
23.1 Any provision of the Terms and Conditions which is prohibited or unenforceable will be ineffective to the extent of the prohibition or unenforceability. That will not invalidate the remaining provisions of this Agreement.
LAW
24.1 The Terms and Conditions are governed by the laws of the State of Victoria. Both KE and the Client consent to any proceeding in relation to this Agreement being instituted and heard by any appropriate Court sitting in Victoria and submit to the non-exclusive jurisdiction of the Courts of Victoria and the Commonwealth of Australia.
24.2 Failure, delay or neglect by KE to enforce any Terms and Conditions will not be construed as a waiver of KE’s rights.