TERMS + CONDITIONS OF ENGAGEMENT
DETAIL MARKETING & COMMUNICATIONS PTY LTD trading as DETAIL (ABN 91 102 944 230) (Detail) agrees to provide the Client with the services set out in Detail’s 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 the quotation or proposal (or upon Detail’s provision of it, in relation to Clauses 9, 16 – 19 and 25 – 28) (Agreement), unless otherwise agreed between those parties in writing.
Proposal and Services
1. You (Client) have provided Detail with a request or instructions to provide you with marketing and communications consultancy services (including but not limited to strategy, graphic design, photography, social media services (including paying of social media accounts as agent for clients), public relations and media services, and community engagement) (Services) and Detail has provided you a proposal setting out the nature and extent of proposed Services (which may include separate options or components), and may include a schedule of milestones and delivery or client sign-off dates (which may be provided as part of the accepted Services, and may be reasonably updated or modified by Detail during provision of the Services) (Milestone Schedule) and applicable fees or charges (a Proposal). The Proposal is valid from date of issue for 30 days or any later date set out in the Proposal, after which time Detail reserves the right to withdraw, change or replace the Proposal.
Acceptance of Proposal
2. Acceptance of the Proposal by the Client must be in writing and work will not commence by Detail until written acceptance has been received and any applicable deposit or fees paid. However, instructing Detail to commence work will also be deemed acceptance by the Client, as will inducing or permitting Detail to commence work. Upon the Client accepting the Proposal, Services will 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 certain options or components only are clearly accepted by the Client. The nature and scope of the Services or the Proposal (including any Milestone Schedule) may only be varied with Detail’s consent in writing or as expressly permitted in accordance with this Agreement.
3. If the Client requests any changes outside the scope of the original request, instructions or Proposal or does not comply with the Milestone Schedule, extra costs may be applicable at usual or hourly rates, as determined by Detail acting reasonably, who reserves the right to provide the Client a revised Proposal dealing with completion of Services outside of that scope.
4. In consideration of the Services, the Client shall pay to Detail the fees, in accordance with the payment schedule set out in the Proposal, including any deposit or advance payment. Detail will invoice the Client for fees and expenses in accordance with the Proposal. Detail may require any portion of fees set out in the Proposal to be paid on acceptance of the Proposal. Payment of all 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 of Detail’s bank. If invoice terms are not specified in a Proposal, they are at Detail’s discretion. The Client acknowledges Detail has the right to require full payment of fees prior to commencement of work or the final delivery of materials created as a result of the Services. If the Client wishes to query an invoice, it must do so in writing within 14 days of receipt of invoice.
5. If any cost or expenses will or may be incurred by Detail in providing the Services, including without limit advertising spend, equipment, photography, graphic design, parking or hospitality, either as needed in Detail’s discretion to provide Services or if the Client requests Detail to incur such cost or expenses, these costs and expenses may be on-charged to the Client and Detail may issue the Client with a separate quotation or proposal and schedule for those expenses (also a Proposal or Milestone Schedule under Clause 4), or if Detail elects, to specify them in the original Proposal, and in any case, payment terms will be as in Clause 4, or payable directly by the Client to any third party if that is requested by Detail. It is agreed that all outside or third-party costs or expenses are incurred by Detail as the Client’s agent, not principal and will incur a 20% management fee on the cost or expense. If any cost or expense increases after issue of a Proposal or any agreement, the increases apply to the Proposal and Services and Detail will endeavour to update the Client on any expense changes.
6. Services or work in progress will not be completed or delivered if invoiced fees or expenses are unpaid, but Detail may continue any work without affecting its rights hereunder.
7. All fees and charges in the Proposal are exclusive of GST, which will be payable by the Client. Detail will if required provide the Client a valid tax invoice for all fees and expenses.
8. On completion of any part or component of the Services and full payment of all fees or expenses payable by the Client for it, Detail grants the Client a licence only to use that part or component as delivered to the Client (a Work), subject to any limits on term, territory and use or purpose (or otherwise) set out in the Proposal or otherwise agreed. The Client is not entitled to and undertakes not to make any use of any Services or Work until the licence for it under this Clause starts, unless agreed in writing by Detail. In any event, the Client may not alter or make any adaptation of a Work except to the extent expressly set out in the Proposal or with Detail’s prior written consent and must give Detail first option to complete that work before the Client engages any third party to complete that work. Without limiting the foregoing it is agreed that Detail may provide editorial or media content arising from the Services to the Client as fair dealing for criticism and review only and the Client undertakes not to use any such content for any other purpose without obtaining proper permissions, and indemnifies Detail from and against any loss, damage or expense arising as a result of its breach of this Clause.
9. Unless otherwise agreed in writing (for example in relation to social media photographs copyright ownership), Detail retains ownership of all the right, title and interest (including copyright) in all Work and materials created or undertaken to produce the Services, and 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. For clarity, all photographs, films, recordings, or other material created by Detail remain its exclusive property, and the Client may purchase this copyright as set out in a Proposal or on terms agreed (for example in social media photographs, for a fee of $75 per image or as otherwise negotiated for photo bundles). Further, the Client agrees not to deal directly with any of Detail’s third party suppliers of goods or services relating to the Proposal or Services (and to ensure all dealings are conducted by Detail including to refer them back to Detail), without Detail’s prior written consent, it being agreed this is a reasonable commercial requirement and in the interests of effective Services.
10. 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 materials and information
11. All information or materials to be provided by the Client must be provided at commencement of Services or acceptance of Proposal, whichever is earlier, unless provision is otherwise made in the Proposal or Milestone Schedule, or provided on later request from Detail, who may withhold Services until this material is provided. If any failure to provide materials results in additional work for Detail, the Proposal or Milestone Schedule is deemed revised accordingly and may give rise to additional fees in Detail’s sole discretion.
12. The Client warrants that any and all information or materials it supplies to Detail is true and accurate and does not infringe the intellectual property or other rights of any party, and without limiting the terms of this Agreement, the Client indemnifies Detail for any losses incurred in any way (including by negligence) as a result of a breach of this warranty. To avoid doubt, the Client will ensure any third-party material is licensed for its use or inclusion in the Services. Detail may exclude any material it considers may not so comply, without any liability to the Client. Detail is not responsible for any loss of, or damage to, or caused any way, by any materials provided by the Client to Detail.
13. Detail will use its reasonable endeavours to deliver the Services, Work and materials therein to the Client in accordance with any delivery schedule in the Milestone Schedule or Proposal, subject to any delay or extension resulting from failure of the Client to provide information and materials as required including any sign-off in accordance with the Milestone Schedule or Proposal, any additional work requested by the Client or any event or circumstance beyond the reasonable control of Detail. Detail will maintain regular contact with the Client (and any key stakeholders advised to Detail in writing) throughout the provision of Services and issue a report at the conclusion of Services setting out activities undertaken, coverage and outcomes.
14. Upon delivery of any materials the Client will have 2 business days or such longer period as may be agreed in writing in either a Proposal or at the time of delivery or set out in any Milestone Schedule, to provide to Detail any objections or changes required to the materials delivered otherwise the Work and materials will be deemed accepted unless otherwise agreed. Any objections and changes must be reasonable and within the parameters of and subject to the Proposal and this Agreement. Any other timeframes notified to the Client will be binding on the Client unless otherwise agreed. Detail is not responsible for maintaining copies of any materials after delivery to and acceptance by the Client under this clause.
15. The Client acknowledges that Detail may use cloud technology for the purposes of storing materials and delivering the Services, Work, and materials to the Client. The Client is solely responsible for ensuring sufficient internet access to access that technology and will be solely responsible for maintaining and securing all passwords or logins required to do so.
Limitation of liability
16. Without limiting anything in this Agreement, the Client acknowledges and agrees Detail provides the Services at the direction and pursuant to the instructions or requirements of the Client and, notwithstanding any act or omission by Detail, including negligence, the Client accepts all risk in relation to Services and releases and forever discharges Detail 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 Services or from any delay in completion of the Services, for any reason whatsoever and will indemnify and hold harmless Detail from and against all loss, damage or liability, except to the extent any legislation applies and cannot be excluded. This clause applies from the provision by Detail of the Proposal, is a continuing separate obligation and survives termination.
17. To the full extent permitted by law, Detail makes no warranties or guarantees of any kind, express or implied, relating to work or services including in relation to the Services.
18. To the full extent permitted by law, Detail’s 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.
19. Following the provision or acceptance of the Proposal, a party may receive or develop confidential information relating to the other, including ideas, concepts, methods, techniques, or other elements of a Proposal (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, required by law or to legal advisors. The Client will also not use Confidential Information in any way if Detail does not provide Services including if the Client does not wish to proceed with all or part of a Proposal. Without limiting this, the Client will execute any separate reasonable Detail confidentiality terms.
Credit and Promotional Use
20. The Client undertakes it will wherever possible properly credit, acknowledge or attribute Detail (or its personnel, as Detail advises) as creators of the Work or the Services in all uses of it by the Client, including in any use as an underlying work to any other work, and any credit must be approved by Detail (acting reasonably) and consistent with industry practices. Detail may place a credit on any materials and products created as part of the Services and the Client agrees not to remove those and to use best endeavours to include those on all uses of Work.
21. Detail may name or refer to the Client as Detail’s client on its own materials and products to promote Detail’s business and use any Work or samples of any other works produced by it for Detail’s promotional purposes as it determines, and generate publicity relating to the Services or Work, subject to informing the Client and accommodating any Client limitations where possible. The Client agrees to provide Detail with samples of any Client works that include Works or Services created by Detail, at no cost for use in Detail’s promotional uses.
22. The Client may terminate the Services at any time on written notice to Detail of 1 month for Services on ongoing retainer, or as set out in a Proposal, or if not so set out, then within 21 days. Detail 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, including payment obligations or any sign-off or other obligations in accordance with the Proposal or Milestone Schedule, or if Detail’s ability to perform its obligations under this Agreement are adversely affected by any cause beyond its control.
23. On termination, all sums owing for work undertaken or expenses incurred under this Agreement up to termination (including any deposit that is non-refundable if Services are not completed) are payable by the Client in accordance with this Agreement and Clauses 4 – 7, 9, 12 and 13 – 19 continue to apply. If the Client withdraws or does not proceed with any part or component of a Proposal commenced by Detail, the Client must pay the full fee or expenses for, and any other non-continuation fee in the Proposal for, the stage or component.
24. Without limiting the amount payable under Clause 23, in the event Detail terminates Services or this Agreement as a result of the Client’s acts or omissions, including negligence, Detail will be entitled to retain any payment made by the Client on acceptance of Proposal under Clause 4.
25. Detail is a contractor, not an employee, partner, or agent of the Client.
26. 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.
27. 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.
28. The Agreement is governed by the laws and jurisdiction of the courts of Western Australia.