Symphonic Pixels agrees to provide the Client with the services set out in Symphonic Pixels’ written proposal or quotation on the following terms and conditions. That proposal or quotation and these terms and conditions will together form a binding and entire agreement upon the Client’s acceptance of quotation or proposal (Agreement), unless otherwise agreed between those parties in writing.
Proposal and Services
- You (Client) have provided Symphonic Pixels with a request or instructions to provide you with branding, graphic design, web design, packaging and related services (Services) and Symphonic Pixels has provided you with a proposal setting out the nature and extent of the proposed Services to be provided (which may include separate options or components) and applicable fees or charges (Proposal). The Proposal will be valid from the date of issue until the later date set out in the Proposal and 30 days from it, after which time Symphonic Pixels reserves the right to withdraw, change or replace the Proposal.
Acceptance of Proposal
- Acceptance of the Proposal by the Client must be in writing and work will not commence by Symphonic Pixels until written acceptance has been received. However, instructing Symphonic Pixels to commence work will also be deemed acceptance, as will inducing or permitting Symphonic Pixels to commence work. Upon Client accepting the Proposal, Services will commence and proceed in accordance with the Proposal and this Agreement, which will be deemed legally binding on the Client, and be for all options or components unless only certain options or components are accepted by Client. The nature and scope of the Services or the Proposal may only be varied with Symphonic Pixels’ consent in writing or as expressly permitted in accordance with this Agreement.
- If the Client requests any changes outside the scope of the original request, instructions or Proposal, extra costs may be applicable at Symphonic Pixels’ usual rates and Symphonic Pixels reserve the right to provide Client a revised Proposal dealing with completion of Services outside scope.
- In consideration of the Services, the Client shall pay to Symphonic Pixels the fees, in accordance with the payment schedule set out in the Proposal, including any deposit or advance payment. Symphonic Pixels will invoice the Client for fees and expenses in accordance with the Proposal. Payment of invoiced fees and expenses is required within 30 days from the date of each invoice and default interest may be charged on overdue sums at 1.5% above the official cash rate applied by Symphonic Pixels’ bank. If invoice terms are not specified in a Proposal, payment terms are at Symphonic Pixels’s sole discretion.
- If any cost or expenses will or may be incurred by Symphonic Pixels in providing the Services, including materials, services, equipment, personnel or resources needed in Symphonic Pixels’ discretion to provide the Services or if Client requests Symphonic Pixels to incur such cost or expenses in providing the Services, these costs and expenses may be on-charged to the Client and Symphonic Pixels may issue Client with a separate quotation or proposal for those expenses (also a Proposal), or specify them in the original Proposal, and payment terms will be as in Clause 4, or payable directly by Client to any third party if so requested by Symphonic Pixels.
- Services or work in progress will not be completed or delivered if invoiced fees or expenses are unpaid but Symphonic Pixels may continue work without affecting its rights hereunder.
- All fees and charges in the Proposal are exclusive of GST, which will be payable by the Client. Symphonic Pixels will if required provide the Client with a valid tax invoice for all fees and expenses.
- On completion of any of option or component of the Services and full clear payment of all fees or expenses payable by Client for that option or component hereunder, Symphonic Pixels grants the Client an exclusive licence in that option or component as delivered to the Client (a Work) for the term, territory and use or purpose set out in the Proposal, including any other limits set out in it or otherwise agreed. The Client is not entitled to, and undertakes not to, make any use whatsoever of any of the Services or Work until the licence for it under this Clause commences, unless agreed in writing with Symphonic Pixels. In any event, the Client may not alter or make any adaptation of the Work except to the extent expressly set out in the Proposal or otherwise without Symphonic Pixels’ prior written consent, and must engage Symphonic Pixels to.
- Unless otherwise agreed in writing, Symphonic Pixels retains ownership of all the right, title and interest (including copyright) in all work created or undertaken to produce the Services including the Work, all underlying ideas, concepts, methods or techniques, and any rights it may have in or to use third party proprietary work or materials in providing Services.
- Where the Services do not proceed beyond an initial Proposal, the Client is not assigned or licensed any rights over any works and is not entitled to make any use of any such works.
- Client acknowledges that in providing the Services Symphonic Pixels is investing considerable time and effort in relation to developing the Work and Client grants Symphonic Pixels the “first and last right” to provide any further similar services relating to the further use or development of the Work (Further Services). The “first right” is the exclusive right to provide Further Services to the Client and negotiate key terms, being fee and other remuneration, for a period of at least 45 days from Client notifying Symphonic Pixels it requires Further Services, which Client must do prior to approaching, or discussing or negotiating with any other party, and if Client and Symphonic Pixels in good faith do not agree key terms within that period may Client so approach or discuss or negotiate with any third parties. The “last right” is the exclusive right to match any key terms agreed with a third party for Further Services, as the Client may negotiate, within 21 days of Client notifying Symphonic Pixels of the terms offered by a third party, which Client must do upon agreeing key terms with the third party and if Symphonic Pixels does not match those terms within that period (or otherwise agreed in good faith), only then may Client engage any third party.
Client materials and information
- All information or materials to be provided by the Client must be provided at commencement of Services or acceptance of the Proposal, unless provision is otherwise made in the Proposal, or provided on later request from Symphonic Pixels. Symphonic Pixels may withhold Services until this material is provided. If any failure to provide materials results in additional work for Symphonic Pixels, the Proposal is deemed revised accordingly and may give rise to additional fees in Symphonic Pixels’ sole discretion.
- Client warrants that any and all information or materials it supplies to Symphonic Pixels is true and accurate and do not infringe the intellectual property or other rights of any party, and without limiting the terms of this Agreement, the Client indemnifies Symphonic Pixels for any losses incurred in any way (including by negligence) as a result of a breach of this warranty. To avoid doubt, Client will ensure any third party material is licensed for its use or inclusion in the Services. Symphonic Pixels may exclude any material it considers may not so comply, without any liability to the Client.
14. Symphonic Pixels will use its reasonable endeavours to deliver the Services, Work and materials therein to the Client in accordance the delivery schedule set out in the Proposal, subject to any delay resulting from the failure of the Client to provide information and materials as required, any additional work requested by the Client or any event or circumstance beyond the reasonable control of Symphonic Pixels.
15. Upon delivery of any materials the Client will have 5 business days to provide to Symphonic Pixels any objections or changes required to the materials delivered otherwise the Work and materials will be deemed to be accepted unless otherwise agreed. Any objections and changes must be within the parameters of and are subject to the Proposal and this Agreement. Any other timeframes notified to the Client will be binding on the Client unless otherwise agreed.
Limitation of liability
- Without limiting anything in this Agreement, the Client acknowledges and agrees that Symphonic Pixels provides the Services at the direction and pursuant to the instructions or requirements of the Client and, notwithstanding any act or omission by Symphonic Pixels, including negligence, the Client accepts all risk in relation to the Services and releases and forever discharges Symphonic Pixels from all and any loss, damage or liability (including indirect, special or consequential losses) arising in relation thereto, including any claim by a third party arising out of or relating to the Services or from any delay in completion of the Services, for any reason whatsoever and will indemnify and hold harmless Symphonic Pixels from and against all loss, damage or liability, except to the extent any legislation applies and cannot be excluded. This clause applies on creation of the Proposal by Symphonic Pixels for Client, is a continuing separate obligation and survives termination.
- To the full extent permitted by law, Symphonic Pixels makes no warranties or guarantees of any kind, express or implied, relating to work or services including in relation to the Services.
- To the full extent permitted by law, Symphonic Pixels‘ liability for any claim or action is limited to replacement of goods, supply of equivalent goods or services or payment of the cost of so replacing or supplying goods, or payment of the cost of resupplying those services.
- Following acceptance of the Proposal, a party may receive or develop confidential information relating to the other (Confidential Information). A party will use Confidential Information only for the purpose of fulfilling its obligations hereunder and it will not be disclosed to third parties, except with the other’s express written consent.
Credit and Promotional Use
20. Client undertakes that it will properly acknowledge or attribute Symphonic Pixels (or its personnel, as Symphonic Pixels may advise) as creators of the Work in all uses of the Work by Client and any credit must be approved by Symphonic Pixels and otherwise consistent with industry practices. Symphonic Pixels may place a credit for Symphonic Pixels on any websites, materials and other products created in providing the Services and Client agrees not to remove same and to use best endeavours to include this on all uses of the Work.
21. Symphonic Pixels may name or refer to Client as Symphonic Pixels’s client on materials and products for the purpose of promoting Symphonic Pixels’ business as it reasonably determines and generate its own publicity relating to the Services or Work, subject to informing the Client beforehand and accommodating any limitation where possible.
- Client grants Symphonic Pixels the right to use any Work or samples of any other works produced by it for Symphonic Pixels’ promotional purposes, subject to informing the Client beforehand and accommodating any limitation where possible.
- Client agrees to provide Symphonic Pixels with samples of the Project or final works comprised within it, at no cost and for use in Symphonic Pixels’ portfolio and promotional.
- Client may terminate the Services at any time on 7 days written notice to Symphonic Pixels. Symphonic Pixels may terminate the Services or this Agreement at any time by giving written notice to the Client including but not limited to if the Client fails to perform any obligations hereunder or if Symphonic Pixels’s ability to perform its obligations under this Agreement are adversely affected by any cause beyond its control.
- In the event of termination, all sums owing for all work undertaken or all expenses incurred under this Agreement up to termination is payable by the Client in accordance with this Agreement and Clauses 4– 7, 9, 12 and 15 – 20 continue to apply. In addition, if Client withdraws or does not proceed with any stage or component of a Proposal already commenced by Symphonic Pixels, Client must pay the full fee or expenses for that stage or component, and any non-continuation fee set out in the Proposal for that stage or component.
- Symphonic Pixels is independent contractor, not an employee, partner or agent of Client.
- If either party fails to do anything it is entitled to under this Agreement that does not amount to a waiver of that right. Any waiver or variation must be in writing. If any clause or part of a clause is illegal or unenforceable, it is to be treated as removed, but the rest of this document is not affected. Any references to a party include their agents, officers, employees or assigns.
- If any clause or part of a clause hereof is illegal or unenforceable, that clause or part is to be treated as removed here-from, but the rest of this Agreement is not affected.
- The Agreement is governed by the laws and jurisdiction of the courts of Victoria.