General Conditions of Sale
These terms and conditions constitute a valid and binding agreement between you or the company which you represent (the Client) and Maria Teresa Rodriguez Barnada (trading as Coco Station) ABN 98169767625 (the Service Provider).
1.1 On and from the Commencement Date, these terms will apply to all the Client’s dealings with the Service Provider, including being incorporated in all agreements under which the Service Provider is to provide Services to the Client (each a Service Agreement). If the Client orders, accepts or pays for any Services after receiving or becoming aware of these terms then the Client is taken to have accepted these terms.
1.2 Without limiting the way in which a Service Agreement may be formed, a Service Agreement will be formed where:
(a) the Service Provider and the Client each sign a document entitled ‘Scope of Work’ or ‘Service Agreement’ or similar, setting out services or deliverables to be provided by the Service Provider to the Client; or
(b) the Service Provider has provided the Client with a communication proposing to provide services (including through an invoice, email communication or proposal document) (a Proposal) and the Client has indicated its assent to such Proposal by paying a deposit set out in the Proposal, accepting all or part of a service and/or deliverable set out in such Proposal, or otherwise communicating its acceptance of the Proposal.
2. FEES AND CHARGES
2.1 In consideration of the Services to be performed by the Service Provider, the Client must pay to the Service Provider fees in the amounts and at the times set out in the Service Agreement or as otherwise agreed, including all applicable sales, use or value added taxes.
2.2 Unless otherwise specified in a Service Agreement, the Client will bear all travel, accommodation, office stationery, computer storage, media and related expenses reasonably incurred by the Service Provider in connection with a Service Agreement.
2.3 The fees set out in a Service Agreement reflect the Service Provider’s fee only for the relevant Services. Any third party costs incurred by the Service Provider in the course of performing the Services may be billed to the Client, unless specifically otherwise provided for in the Service Agreement.
3.1 Unless otherwise provided in the Service Agreement, the Client must pay additional charges for changes to Services or Deliverables requested by Client which are outside the scope set out in the relevant Service Agreement (Changes). Unless otherwise agreed, Changes will be charged on a time and materials basis, at the Service Provider’s standard hourly rate of $80 (AUD). Such charges will be in addition to all other amounts payable under the relevant Service Agreement, and despite any maximum budget, contract price or final price identified in such Service Agreement. The Service Provider may at its discretion extend or modify any delivery schedule or deadlines for the Services or Deliverables as may be reasonably required by such Changes.
4.1 All displays or publications of the Deliverables must, if requested by the Service Provider, bear accreditation and/or a copyright notice including the Service Provider’s name in the form, size and location as incorporated by the Service Provider in the Deliverables, or as otherwise directed by the Service Provider.
4.2 Unless otherwise agreed by the parties, the Service Provider retains the right to reproduce, publish and display the Deliverables in the Service Provider’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.
4.3 Without limiting clause 4.2, either party, subject to the other’s reasonable approval, may describe the Services and Deliverables on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.
5. CONFIDENTIALITY & RESTRAINT
5.1 Except as contemplated in a Service Agreement, a party must not and must not permit any of its officers, employees, agents, contractors or related companies to use or to disclose to any person any confidential information disclosed to it by the other party without its prior written consent. This clause does not apply to information which is generally available to the public (other than as a result of a breach of these terms or another obligation of confidence) or confidential information required to be disclosed by any law.
5.2 For the duration of any Service Agreement, and for 6 months thereafter, the Client must not employ or engage (or be knowingly involved in another employing or engaging) any officers or employees of the Service Provider with which the Client had contact during the course of a Service Agreement.
6. INTELLECTUAL PROPERTY
6.1 The Client warrants that the Service Provider’s use of Client Content for the purpose of supplying any Services or Deliverables will not infringe any third party rights (under the laws of intellectual property, confidentiality, contract or otherwise) and will indemnify, hold harmless and defend the Service Provider and its officers, employees and agents against any claim, allegation, loss or liability arising from any such infringement.
6.2 Unless otherwise expressly agreed in writing by the Service Provider, the Client will not under these terms or any Service Agreement acquire Intellectual Property Rights in any Service Provider IP. Any Developed IP will be solely and exclusively owned by the Service Provider.
6.3 The Service Provider grants to the Client a non-exclusive, royalty free, non-transferable, worldwide and revocable licence to use the Service Provider IP and any Developed IP to the extent required for the Client to use, enjoy the benefit of or exploit the Services and/or Deliverables.
6.4 The Client grants to the Service Provider a non-exclusive, royalty free, non-transferable, worldwide and irrevocable licence to use the Client Content and Client IP to the extent reasonably required to perform any Services or provide any Deliverables to the Client or to exercise its rights under clause 4.2 of these terms.
7.1 The Service Provider provides the Services and Deliverables “AS IS”, and disclaims all warranties, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose, and non-infringement.
8.1 The maximum aggregate liability of the Service Provider and its officers, employees or agents arising under or in connection with these terms or a Service Agreement is:
(a) in respect of liability, loss, damage, cost or expense arising under or in connection with a Service Agreement, limited to an amount equal to the fees paid and payable under that Service Agreement (if it were fully performed by the Service Provider); and
(b) in respect of liability, loss, damage, cost or expense arising under or in connection with these terms, but not under or in connection with a Service Agreement, limited to $100.
8.2 The Service Provider and its officers, employees or agents will not in any circumstance be liable for indirect or consequential loss, loss of profit, economic loss, or punitive or exemplary damages.
8.3 The Service Provider and its officers, employees or agents will not in any circumstance be liable for, and the Client will indemnify, hold harmless and defend the Service Provider and its officers, employees and agents against, any liability, loss, damage, cost or expense caused or contributed to by:
(a) any unlawful conduct, negligence, wilful misconduct or fraud of the Client or its employees, officers or agents; or
(b) the Service Provider or its officers, employees or agents complying with or relying on any instruction or advice given by or on behalf of the Client.
8.4 The limitations and exclusions of liability in this clause apply regardless of the basis on which the relevant liability arises, whether in contract, tort (including negligence), statute, equity or otherwise.
9.1 The Service Provider may terminate these terms or any Service Agreement in whole or in part (including in respect of a Service Agreement) immediately by written notice to the Client if:
(a) the Client is in breach of any term of these terms or a Service Agreement and has failed to remedy the breach within 10 Business Days after notice by the Service Provider;
(b) the Client commits a material breach of these terms or a Service Agreement that is not capable of remedy; or
(c) the Client becomes subject to any form of insolvency or bankruptcy administration.
9.2 The Client may not terminate these terms or any Service Agreement in whole or in part unless the Service Provider first consents in writing. As a condition of giving its consent, the Service Provider may require the Client to pay: the Service Provider’s expenses to date; payments required by the Service Provider’s suppliers to discontinue their work; usual time charges for the work of the Service Provider’s staff to date; the Service Provider’s standard fees in relation to work already performed; and/or an equitable amount by way of profit margin on the preceding items.
9.3 Any provision of these terms (including in a Service Agreement) which, by its nature, would reasonably be expected to be performed after the termination, shall survive and be enforceable after such termination.
10.1 A notice, consent, request or any other communication under these terms or any Service Agreement must be in writing, in English and signed by a person duly authorised by the senders and must be hand delivered or sent by prepaid post or emailed to the recipient’s address for notices or the email address of the recipient set out on the cover page to this agreement. Either party may change its address for notices by notifying the other party.
10.2 A notice, request or other communication is deemed to be received: if delivered by hand delivery, when it is delivered; if delivered by post, on the seventh Business Day after posting; and if sent by email, 24 hours after the email was sent unless the party sending the email knows or reasonably ought to suspect that the email and the attached communication were not delivered to the addressee’s domain specified in the email address.
10.3 If the delivery, receipt of transmission is not on a Business Day or is after 5:00pm on a Business Day, the notice is taken to be received at 9:00am on the next Business Day.
11.1 These terms and all Service Agreements embody the entire agreement between the parties and supersede any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of these terms. In the event of any inconsistency between these terms and any Service Agreement or a Client document, the clauses of these terms will prevail to the extent of such inconsistency, unless expressly agreed otherwise (e.g. through the inclusion of ‘special conditions’ in a Service Agreement).
11.2 If a provision of these terms or a Service Agreement or a right or remedy of a party under these terms or a Service Agreement is invalid or unenforceable in a particular jurisdiction:
(a) it is read down or severed in that jurisdiction only to the extent of the invalidity or unenforceability; and
(b) it does not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions in any jurisdiction.
11.3 The relationship between the Client and the Service Provider is non-exclusive and the Service Provider may provide the same or similar services or deliverables to as many additional clients or other third parties as the Service Provider in its sole discretion sees fit.
11.4 The Service Provider will not be liable for any delay in performing its obligations or for a failure to perform its obligations under these terms or a Service Agreement if the delay or failure resulted from unforeseeable circumstances beyond its reasonable control.
11.5 This agreement is governed by the law applying in New South Wales, Australia and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia and the courts that hear appeals from them.
11.6 No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
11.7 These terms and any Service Agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.
In this agreement the following definitions apply:
|Business Day||means a day that is not a Friday, Saturday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made.|
|Client IP||means all materials owned or licensed by the Client as at the Commencement Date and any Intellectual Property Rights attaching to those materials.|
|Client Content||means any data, designs, logos, text, data, works, information, materials and instructions given by or on behalf of the Client to the Service Provider in connection with a Service Agreement or these terms.|
|Commencement Date||means the date this agreement is accepted by the Client.|
|Deliverables||means deliverables to be provided by the Service Provider to the Client as set out in a Service Agreement or as otherwise agreed between the parties.|
|Developed IP||means any Deliverables and any and all materials produced by the Service Provider in the course of providing Services and the Deliverables or otherwise in connection with these terms including documentation, reports, data, designs, concepts, know-how, information, advice, opinions, emails, notes whether in draft or final form, in writing, provided orally, either alone or in conjunction with the Client or others.|
|Intellectual Property Rights||means any and all present and future intellectual and industrial property rights throughout the world, including copyright, trade marks, designs, patents or other proprietary rights, confidential information and the right to have information kept confidential, or any rights to registration of such rights whether created before or after the Commencement Date, whether registered or unregistered.|
|Services||means services to be provided by the Service Provider to the Client as set out in a Service Agreement or as otherwise agreed between the parties.|
|Service Provider IP||all materials owned or licensed by the Service Provider as at the Commencement Date and any Intellectual Property Rights attaching to those materials.|